Case Information
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STATE OF TEXAS
COUNTY OF STARR- November 29, 2011 MOAB CONSTRUCTION COMPANY, INC.
DESIGN-BUILD CONTRACT
ARCHITECTURAL/ENGINEERING SERVICES FOR (IBWC) NEW ADMINSTRATION BUILDING FALCON DAM, TEXAS
This DESIGN/BUILD CONTRACT (the "Contract") is made and entered into as of the Twenty Four day of October in the year Two Thousand &; Eleven by and between the Moab Construction Company, the "Contractor". and ALS 88 DESIGN BUILD LLC, a Texas Limited Liability Corporation, with its principal place of business at 18249 FM 471 South Natalia, Texas 78059 Medina County (the "Architect").
This Contract for the design and construction documents of a new Administration Building in Falcon Dam Village, in the State of Texas in Starr County. The United States Section of the International Boundary and Water Commission (USIBWC) plans to construct a new administration building. The total building foot print is proposed to be between 5,000 and 5,500 square feet. The new building will consist of a minimum of nine (9) offices, hydro laboratory, conference room, and security guard area including a weapons locker room, break room, fireproof vault room, IT server room, and reception area. This building will replace the existing Falcon Dam's Administration Building. The existing building is no longer functional with respect to building codes, OSHA requirements, office space, technological improvements, and mechanical efficiency. The objective is to demolish the existing building in its entitety once the new building is constructed.
The Contractor and Architect agree as follows.
ARTICLE 1 ARCHITECT'S RESPONSIBILITIES
1.1 The services performed by the Architect, Architect's employees and Architect's consultants shall be as enumerated below. . 1.2 The Architect's services shall be performed as expeditiously as in consistent with professional skill and care and the orderly progress of the Project. The Architect shall submit for the Contractors's approval a schedule for the performance of the Architect's services which may be adjusted as the Project proceeds. This schedule shall include allowances for periods of time required for the Contractor and Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Contractor and Owner shall not, except for reasonable cause, be exceeded by the Architect or Contractor.
ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES 2.1 DEFINITION
This is the section that outlines the Architect's responsibility concerning all A &; E services according to the original Scope of Work for the USIBWC New Administration Building, see sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 and 2.7. The Architect's Basic Services consist of those described below and any other services identified below. These are the submitted requirements of the Owner:
Schematic Design ( Completion) Design Development ( Completion) Design Development ( Completion) Design Development ( Completion) Construction Documents ( Completion)
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Construction Documents ( Completion) IFC Drawings (after picking up any design review comments)
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Architect shall review the program SGW furnished by the Owner to ascertain the requirements of the Project. Schematic Design Phase Includes: Preliminary Site Plan, Code Analysis, Outline of Specifications, Preliminary Floor Plan, Elevations, Roof Plan, Area Calculations, Site Survey and Geotechnical Survey. The LEED registration and project registration would take place during this time. 2.2.2 The Architect shall review with the Contractor and Owner alternative approaches to design and construction of the Project. 2.2.3 The Architect shall ascertain the requirements for the project and shall hire, manage and pay the consultants and engineers under contract to perform the work required. 2.2.4 Upon payment from the contractor for services rendered, the Architect shall ensure that the team members are paid promptly.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect shall prepare, for approval by the Contractor and Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. 2.3.2 The Architect shall advise the Contractor of any adjustments and revisions by the Owner to the preliminary set of drawings that may change the estimate of Construction Cost. 2.3.3 Design Development Documents will include: All the documents above and Code Design criteria for architectural, structural, HVAC, plumbing, electrical, lighting it, security and communications system. Additional sheets for all engineers, including reflected ceiling plans, interior finishes and detail pages. 2.3.4 Five colored sets of the following material for review and approval by the USIBWC's Contracting Officer Representative include: Floor plans, Building Sections, Building Perspective, and Building Model. Narratives describing how the design's appropriateness, color, materiality and value fit the facility context. 2.3.5 The Architect and Contractor will develop a more detailed estimate of cost for the Owner.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Architect shall prepare, for approval by the Owner and Contractor, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project. 2.4.2 The Architect and Contractor shall advice the Owner of any adjustments to previous preliminary estimate of Construction Cost indicated by changes in requirements or general market conditions.
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2.4.3 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.4.4 Design Consultant shall submit for USIBWC review and comment five (5) copies of the final ( completed) Construction Documents. One copy shall be mailed directly to the THC point of contact as per coordination with the THC. The design consultant will be required to allow for a minimum 6 week review by the THC as per Section 106 regulations. 2.4.5 When Scope Compliance Review by the USIBWC; and Code Compliance Review by the USIBWC's Contracting Officer Representative, and review agency required changes or corrections have been incorporated by Design Consultant, the -completed Construction Documents will be deemed to be final and ready for USIBWC. Design Consultant shall provide to USIBWC one (1) set of Mylar reproducible Drawings, two (2) sets of prints, and the complete set of the Specifications, of the final ( back checked and corrected) set of Construction Documents. The Specifications shall be provided in both hard copy form and in electronic format disk latest version of Microsoft Word and Adobe Acrobat, PDF formats. 2.4.6 Design Professional is also required to provide USIBWC with an electronic version of the Drawings that is compatible with AutoCAD 2009.
2.5 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.5.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this agreement commences with the Notice To Proceed to the Contractor and terminates at the earlier of the issuance to the Owner of the final Certificate for Payment or 60 days after the date of Substantial Completion of Work. 2.5.2 The Architect shall provide administration of the Contract for Construction as set forth below and in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement, unless otherwise provided in this Agreement. Modifications made to the General Conditions, when adopted as part of the Contract Documents, shall be enforceable under this Agreement only to the extent that they are consistent with this Agreement or approved in writing by the Architect. 2.5.3 Duties, responsibilities and limitations of authority of the Architect under this Paragraph 2.6 shall not be restricted, modified or extended without written agreement of the Contractor. 2.5.4 The Architect shall visit the site at intervals appropriate to the stage of the Contractor's operations, or as otherwise agreed by the Contractor. The Architect to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous onsite inspections to check the quality or quantity of the Work. The Architect shall neither have control over or change of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents. 2.5.5 The Architect shall not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible for the Architect's negligent acts or omissions, but shall not have control over or change of and shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the work.
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2.6 CERTIFICATES FOR PAYMENT FOR THE CONTRACTOR
2.6.1.1 The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Work and on the data comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject (1) to an evaluation of the Work conformance with the Contract Documents upon Substantial Completion, (2) to results of subsequent tests and inspections, (3) to correction of minor deviations from the Contract Documents prior to completion, and (4) to specific qualifications expressed by the Architect. 2.6.1.2 The issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.2 The Architect shall have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, to exercise such authority shall give rise to a duty or to a duty or responsibility of the Architect to the Contractor, Subcontractors, materials and equipment suppliers, their agents or employees or other persons or entities performing portions of the Work.
2.7 ARCHITECT'S REVIEW OF SUBMITTALS, PERFORMANCE CRITERIA &; CHANGES TO CONSTRUCTION DOCUMENTS
2.7.1 The Architect shall review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 2.7.2 If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Architect shall specify appropriate performance and design criteria that such services must satisfy. Shop Drawings and other submittals related to the Work designed or certified by the design professional retained by the
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Contractor shall bear such professional's written approval when submitted to the Architect. The Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals. 2.7.3 The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Architect and may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are consistent with the intent of the Contract Documents. 2.7.4 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, shall receive from the Contractor and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor, and shall issue a final Certificate for Payment based upon a final inspection indicating the Work complies with the requirements of the Contract Documents. 2.7.5 The Architect shall interpret and decide matters concerning performance of the Owner and Contractor under, and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. 2.7.6 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by both Owner and Contractor, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. 2.7.7 The Architect's decisions on claims, disputes or other matters in question between the Owner and Contractor, except for those relating to aesthetic effect shall be subject to mediation and arbitration as provided in this Agreement and in the Contract Documents.
ARTICLE 3 CONTRACTOR'S RESPONSIBILITIES
3.1.1 The Contractor shall establish and periodically update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 3.1.2 The Contractor shall furnish all legal, accounting and insurance services that may be necessary at any time for the Project to meet the Owner's needs and interests. 3.1.3 The Contractor shall provide prompt written notice to the Architect if the Contractor becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies in the Architect's instruments of Service.
ARTICLE 4 MEDIATION
4.1.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party. If such matters relates to or is the subject of a lien arising out of the Architect's services, the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by arbitration. 4.1.2 The Owner and Design Builder shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Mediation Rules of the Bexar County court house alternative dispute resolution currently in effect.
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Request for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 4.1.3 The parties shall share the mediator's fee and any filing fees equally. 4.1.4 The mediation shall be held in Besar County, unless another location is mutually agreed upon. 4.1.5 The parties should agree that the mediation be confidential and non-binding. 4.1.6 The parties shall both agree on who will conduct the mediation and the mediator shall be paid equally by both parties. 4.1.7 The parties agree to mediate in good faith until such time as either party determines that it is fruitless to continue. 4.1.8 If the parties cannot reach an agreement, the mediation will result in an impasse.
ARTICLE 5 BASIS OF COMPENSATION
5.1.1 No deductions shall be made from the Architect's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the Work other than those for which Architect has been adjudged to be liable. 5.1.2 For Basic Services, as described in Article 2, and any other services included the sum of Two Hundred Thousand and Two Thousand Five Hundred Dollars and zero cents. This will be billed monthly as per the Cost Loaded Design Schedule submitted to the Owner on 10.20.2011.
Melissa Madsen-Moab Construction
11/29/11
Date
A. Seagrevego
Annastacia L. Sequoyah AIA- ALS 88 Design Build LLC
Date