AGREEMENT FOR CONSTRUCTION SERVICES
by and between
Lower Colorado River Authority
(hereinafter referred to as the “LCRA”)
and
TBD
(hereinafter referred to as the “Contractor”)
RELATING TO THE DESIGN/BUILD SERVICESOF LCRA’S
DESERT MESA SUBSTATION (“PROJECT”)
TABLE OF CONTENTS
ARTICLE 1 CONTRACT SCOPE
ARTICLE 2 GENERAL INFORMATION
ARTICLE 3 ADMINISTRATION OF THE CONTRACT
ARTICLE 4 LCRA
ARTICLE 5 CONTRACTOR’S REPRESENTATIONS AND OBLIGATIONS
ARTICLE 6 CHANGES IN THE WORK, CONTRACT PRICE AND COMPLETION DATE
ARTICLE 7TESTING
ARTICLE 8 SUBCONTRACTORS
ARTICLE 9 TIME OF COMMENCEMENT AND COMPLETION
ARTICLE 10 COMPENSATION, PAYMENTS AND COMPLETION
ARTICLE 11 SUCCESSORS AND ASSIGNS
ARTICLE 12 PROPRIETARY INFORMATION
ARTICLE 13 WORK PERFORMED BY OTHERS
ARTICLE 14PROTECTION OF PERSONS AND PROPERTY
ARTICLE 15 UNCOVERING AND CORRECTION OF WORK
ARTICLE 16 TERMINATION OF THE CONTRACT
ARTICLE 17 WARRANTIES AND GUARANTEES
ARTICLE 18 INSURANCE AND BONDS
ARTICLE 19 GENERAL SERVICES AND TEMPORARY FACILITIES
ARTICLE 20 CLAIMS AND LITIGATION
ARTICLE 21 MISCELLANEOUS PROVISIONS
ARTICLE 22DEFINITIONS
EXHIBITS:
Exhibit 1 – Technical Requirements Document
Exhibit 2 – Copy of Contractors Proposal
Exhibit 3 - Copy of Contractor Board Action
Exhibit 4 - Contractor’s Act of Assurance
Exhibit 5 - List of LCRA Representatives
Exhibit 6 - Site Access and Work Rules
Exhibit 7 - LCRA Background Check Procedures and Requirements
Exhibit 8 - Vendor/Contractor Attestation
Exhibit 9 - Manufacturer’s Certificate of Compliance
Exhibit 10- Change Order Template
Exhibit 11- Contractor Labor Rate Table
Exhibit 12- Form of Contractor’s Monthly Report
Exhibit 13- Partial Lien Waiver Forms
Exhibit 14- Payment and Performance Bond Forms
AGREEMENT FOR DESIGN-BUILDCONSTRUCTION SERVICES
THIS AGREEMENT FOR DESIGN-BUILD CONSTRUCTION SERVICES (“Agreement”) is made and entered into as of the ___th day of______, 2018, by and between Lower Colorado River Authority (“LCRA”), a conservation and reclamation district of the State of Texas, organized pursuant to Article XVI, Section 59 of the Texas Constitution acting on behalf of the LCRA Transmission Services Corporation (“LCRA TSC”) its non-profit for transmission operations and ______( “Contractor”), for the provision by Contractor of design-build services forthe design, fabrication and construction of the Desert Mesa substation in TexasLCRA TSC contracts with LCRA to provide it with services.
ARTICLE 1 CONTRACT SCOPE
1.1Definitions.All terms and phrases defined herein inthe Contract Documents shall have the meanings and definitions set forth therein. Terms that have well known technical or construction industry meanings are used in accordance with such recognized meanings, unless otherwise defined herein or elsewhere in the Contract Documents or unless the context clearly indicates a different meaning.
1.2Contractor’s General Scope; Reservation by LCRA.LCRA reserves the right to eliminate, reduce or modify the scope of the Project. Contractorwill be responsible for the design, procurement of all applicable trade work, and the materials needed for, and for the construction, of the Project, as well as for the overall integration of each element of the Work comprising the Project and coordination with other elements and with the existing conditions at the Project Site so that the entire Work is fully connected, complete, operational and functional and in conformance with the Contract Documents.
ARTICLE 2GENERAL INFORMATION
2.1GENERAL INFORMATION
2.1.1. Contract Documents Defined. The Contract Documents for the Project consist of:
(1)this Agreement;
(2)the specifications for the Project as identified herein (“Technical Requirements”);
(3)the drawings for the Project as identified herein (“Existing Facilities Drawings”); and
(4)all “Modifications” issued in connection with the Work.
2.1.2. No Warranty of Technical Requirements and Existing Facilities Drawings.LCRA makes no representation or warranty regarding the completeness or accuracy of the Technical Requirements, Existing Facilities Drawings or reports and information referred to therein. Contractor shall be responsible for and bear the risk of reviewing and incorporating into its plans for the Work all such reports and information, determining the proper means, method schedules, sequences and techniques by which to perform the Work related to suchreports and information, coordinating the Work with theowners, if any, of any subsurface structures, and the safety and protection of the Project and all persons working on the Project Site, whether employed by Contractor, its Subcontractors, LCRA or anyone else.
2.2INTERPRETATION, CORRELATION AND INTENT OF CONTRACT DOCUMENTS
2.2.1.Entire Integrated Agreement.The Contract Documents collectively comprise the entire, integrated agreement between the LCRA and Contractorand supersede the Request for Proposal, all other requests for qualifications, negotiations, proposals, and/or bids and any responses thereto and all prior negotiations, representations or agreements, either written or oral. Eachof the Contract Documents is fully a part of this Agreement.
2.2.2.Modifications.The Contract Documents may be amended or modified only by a Modification. A Modification is (a) a written amendment to this Agreement signed by authorized representatives of both parties, (b) a Change Orderor Field Order issued pursuant to the applicable provisions of this Agreement, (c) new or amended Existing Facilities Drawings or notes on Existing Facilities Drawings issued by LCRA in connection with a Change Order or Field Order.
2.2.3.Contract Exclusions.The Contract Documents shall not be construed to create a contractual relationship of any kind:
(1) between any persons or entities other than the LCRA and Contractor or
(2) between LCRA and any of Contractor’s Subcontractors of any tier.
Any agreements between the LCRA and any other consultant are not part of this Agreement.
2.2.4.Order of Precedence.In the event of a conflict between any of the Contract Documents, the Contract Documents shall take precedence in the order in which they are listed in Section 2.1.1 herein, excepta Modification shall take precedence over that portion of that Contract Document which it modifies.
2.2.5.Resolution of Conflicts and Ambiguities.During the performance of the Contractor’s duties, the Contractor shall, with reasonable attention and consistent with the provisions of this Agreement, study and compare the Contract Documents with each other. If the Contractor discovers any inconsistencies, conflicts or ambiguities within or among the Contract Documents that cannot be resolved by the order of precedence aboveor the information and communications provided to the Contractor by the LCRA then the Contractor shall promptly report such inconsistency, conflict or ambiguity to the applicable LCRA Representative and secure a Modification from the applicable LCRA Representative prior to proceeding with any Work affected by or involving such inconsistency, conflict or ambiguity. If the Contractor is aware of any inconsistencies, conflicts, or ambiguities and knowingly performs the affected Work, the Contractor will be liable to LCRA for any resulting delay, costs, damages, or losses suffered by LCRA. However, the Contractor will not be liable if LCRA has received notice of the inconsistency, conflict, or ambiguity and orders the Contractor to proceed.
2.2.5.1. The Contractor shall assign Work among Subcontractors as necessary for the full and timely completion of the Work. The organization of the Technical Requirements shall not control the division of Work among Subcontractors.
2.2.5.2. Interpretation. Contractor requests for an interpretation or clarification of any term, depiction, provision or Performance Specification or other instructions or clarifications necessary for the proper execution of the Work shall be directed to the LCRA Representative (and any of the LCRA’s Consultants as directed by the LCRA), who will respond in writing. The Contractor shall not proceed with the relevant Work until instruction or clarification is received. The instruction or clarification will be on a form that contains the LCRA’s written approval and contain a specific reference to the Contract Documents being clarified or interpreted. The Contractor should not proceed with any Work requiring such instructions or clarifications unless the LCRA’s written approval is reflected on this form through the signature of the applicable LCRA Representative.
2.2.5.3. The Technical Requirements may be abbreviated and include incomplete sentences. Omission of words or phrases such as “the Contractor shall” and “shall be” are intentional. Where phrases such as “as selected”, “as directed” or “as approved” are used in the Technical Requirements, they shall mean “as directed, selected or approved by the LCRA.” Where phrases such as “or equal” or “or approved equal” are used in the Technical Requirements, they shall mean “equal or approved equal as approved by the LCRA.” In the interest of brevity, the Technical Requirements frequently omit modifying words such as “all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement.
2.2.5.4. Existing Facilities Drawings are intended to show the general arrangement, design and extent of the Work and are partly diagrammatic. As such, they are not intended to be scaled for measurements or to serve as shop drawings, preparation of which shall be entirely the Contractor’s responsibility. Large scale Existing Facilities Drawings shall take precedence over small scale Existing Facilities Drawings; figures, dimensions and noted materials over graphic representations. If the Work involves dimensions that depend upon or are affected by existing conditions, the existing conditions shall be verified by theContractor. The verification shall take precedence over the Existing Facilities Drawings with regard to dimensions.
2.2.5.5. Whenever the Contract Documents designate material by name, manufacturer or vendor, or by proprietary or trade name followed by words “or approved equal”, standard products of manufacturers other than those specified may be accepted only if:
(1)it is proved to LCRA’s satisfaction that they are equal in design, appearance, strength, durability, usefulness, convenience, and in all other material respects and
(2)if the substitute is approved in writing by the LCRA, prior to the ordering or use.Approval shall be at the LCRA’s sole and absolute discretion.
The Contractorshall be responsible for requesting and obtaining the written approval of the LCRA in this regard.
2.2.5.6. The Article, Section and Section headings, as well as other titles and captions used in the Contract Documents, are inserted only for convenience of reference, and are not intended to and shall in no way define, limit, enlarge or prescribe the rights or obligations of the parties, or to affect the meaning, construction, scope or extent of any provisions of the Contract Documents.
2.2.5.7. If any term or provision of the Contract Documents shall be held to any extent to be invalid or unenforceable, the remaining terms and provisions of the Contract Documents shall nevertheless be valid and shall be enforced to the fullest extent permitted by law.
2.2.6.Governing Law.This Agreement and all of the Contract Documents shall be construed and governed pursuant to the laws of the State of Texas, without reference to its conflict of laws principles. Exclusive venue shall be in the District Courts of Travis County, Texas, unless mandatory venue is established elsewhere by law.
2.2.7. Venue. Exclusive venue for any dispute arising out of or relating in any way to this Agreement, the Contract Documents, or the Work shall be in the state district courts of Travis County, Texas, unless mandatory venue is established elsewhere by law.
2.2.8. Compliance with Laws and Regulation.In the performance of the Contract, the Contractor must comply with all applicable Federal, State and local laws and regulations. The Contractor shall make itself familiar with and at all times shall observe and comply with all Federal, State, and Local laws, ordinances and regulations which in any manner affect the conduct of the work, and shall indemnify and holdharmless the LCRA and its Board members, officers, employees and representatives against any claim arising from violation of any such law, ordinance or regulation by the Contractor or by its subcontractors or their respective employees.
2.2.9Notices.All notices, demands or requests provided for or desired to be given pursuant to the Contract Documents must be in writing. When addressed to LCRA, the communication must be directed to the applicable LCRA Representative identified in Exhibit 5. All such documents shall be deemed to have been sent when deposited in the United States mail, postage prepaid, certified or registered, and/or deposited with a registered or bonded courier for next day or immediate delivery or delivered by hand by an employee of a Parties.The appropriate addresses are the addresses included in this Agreement, though Parties may change their address by written notice in accordance with this Section.Notice can also be sent as a courtesy to the intended recipient by email, provided, however, that the methods established in the foregoing sentence are the exclusive methods for providing valid notice under this Agreement.
2.3OWNERSHIP AND USE OF DOCUMENTS
2.3.1.LCRA Ownership of Design; Prohibition of Reuse Elsewhere.All documents prepared by LCRA, or LCRA Consultants are the property of LCRA. They may not be used by any person, other than LCRA, on projects other than this Project, unless expressly authorized in writing by LCRA through the applicable LCRA Representative(as identified in Exhibit 5). All copies of Existing Facilities Drawings, Technical Requirements, and other documents furnished to the Contractor are solely for use with this Project. They may not be used by the Contractor or any Subcontractor on other projects. The Contractor and Subcontractors are granted a limited license to use and reproduce applicable portions of the Existing Facilities Drawings, Technical Requirements, and other documents for the execution of their Work. The Contractor shall do all printing, duplication, or distribution as necessary for proper performance of the Work. The Contractor may retain archival sets of the Contract Documents. All copies of such documents, other than the Contractor’s archival sets, must be returned to LCRA upon completion of the Work.
2.3.2.LCRA Licensed to Use Contractor Documentation.LCRA shall own all Drawings, designs, Specifications, notes, and other design works developed directly by the Contractor or its Subcontractors in the performance of this Agreement, in connection with LCRA’s use, maintenance, and repair of the Project, and for any additions, alterations, or future construction to the Project. This includes the ideas and designs contained therein, including, but not limited to, shop drawings, wiring diagrams, process control drawings, instrumentation drawings, and equipment drawings. Contractor and Subcontractor will continue to own the underlying design concepts set forth in such drawings, designs, specifications, notes, and other design works. Contractor and Subcontractor will have the right to use such concepts in other projects without LCRA consent.
2.4SITE CONDITIONS AND RELATED ACTIVITIES
2.4.1.Contractor Review of Site and other Materials.By executing this Agreement, the Contractorrepresents that it has visited the Site where the Work for the Project is to be constructed, has examined carefully all of the Contract Documents upon which the Contract Price is based, has reviewed all information, data and documents regarding the conditions at the Site made available to the Contractorby the LCRA prior to the execution of this Agreement and has acquainted itself with all other conditions relevant to the Work.
2.4.1.1.Basic Allocation of Site Conditions Risk.The Contractorassumes full and complete responsibility for all risk (including risk of loss) in connection with the Work caused by any obstructions, difficulties or conditions at the Site which are reasonably inferable:
(i) from the information available to the Contractorprior to the execution of this Agreement;
(ii) from a reasonably prudent person who has visited and examinedthe Site prior to the execution of this Agreement;
(iii) from facts or circumstances disclosed by the information provided toContractorby LCRA (including but not limited to any geotechnical reports or related data) prior to the execution of this Agreement;
(iv) other conditions reasonably discoverable at the Site by Contractorprior to executionof this Agreement.
Contractor shall not be entitled to any increase in the Contract Price or to any extension in the Contractor’s Planned Completion Date because of any such Site conditions.
2.4.1.2.Notice to LCRA of Unanticipated Site Condition.If an obstruction, difficulty or condition is encountered at the Site, which the Contractorcontends was not one it had knowledge of (or should have accounted for) based on the requirements of Sections 2.4.1 and 2.4.1.1 above, the Contractorshall notify LCRA of such obstruction, difficulty or condition with reasonable promptness, and in no event later than seven (7) days after its discovery, and thereafter shall meet with LCRA and the LCRA’s Consultants, as requested by LCRA, to discuss recommendations and alternatives for responding to the condition and minimizing its impact on the Contract Priceor Contractor’s Planned Completion Date. The Contractorshall perform no Work involving or affected by such condition until after notifying LCRA and receiving specific directions from LCRA as to the performance of such Work. The Contractoracknowledges that the failure to notify the LCRA of any such condition within seven (7) days of its discovery as required by this Section will prejudice LCRA’s ability to respond to such condition and mitigate the cost and schedule impacts resulting from the condition.
2.4.1.3.Failure to Provide Timely Notice.If the Contractorperforms any construction activity affected by any obstruction, difficulty or condition which the Contractorcontends was not one about which the Contractorhad knowledge (or should have accounted for) based on Sections 2.4.1 and 2.4.1.1 above, without first giving prior notice to and obtaining the instructions of LCRA with respect to such activity, the Contractorshall be responsible for such performance and shall be liable for any attributable costs incurred by LCRA as a result of the Contractor’s failure to have given such notice, and shall not be entitled to any extension of the Contractor’s Planned Completion Date on account thereof.
2.4.1.4.Remedy for Material Change.If an obstruction, difficulty or condition is one about which the Contractordid not have knowledge (or could not reasonably have accounted for) based on Sections 2.4.1 and 2.4.1.1 above, then the Contractor(provided notice has been timely given as required by Section 2.4.1.2 above and the work required to address such obstruction, difficulty or condition constitutes a Material Change as defined herein) is entitled, as its sole and complete remedy, to an increase in compensation calculated pursuant to the applicable provisions of this Agreement, together with an extension of the Contractor’s Planned Completion Date measured by the number of days, if any, that the Substantial Completion of the Work is actually delayed as a direct result of the existence of the obstruction, difficulty or condition. However, if the required extension of time is not granted, the Contractorshall be entitled to the remedies set forth herein). If, the obstruction, difficulty or condition is one about which the Contractordid have knowledge, or should have accounted for based on the requirements of Sections 2.4.1 and 2.4.1.1 above, then the Contractorshall be not be entitled to any increase in the Contract Price or any extension of the Contractor’s Planned Completion Date as a result of the existence of the obstruction, difficulty or condition.