Contract217 paragraphs, 122 numbered sections
STATE OF TEXAS
COUNTY OF FORT BEND
AGREEMENT FOR CONSTRUCTION – JUSTICE CENTER EXPANSION
RFP 17-037
THIS AGREEMENT is made and entered into by and between Fort Bend County, (hereinafter “County”), a body corporate and politic under the laws of the State of Texas, and Brookstone, LP (hereinafter “Contractor”), a company authorized to conduct business in the State of Texas.
WITNESSETH
WHEREAS, County desires that Contractor complete construction of a 98,692 square foot, three-level addition to the existing Fort Bend County Justice Center that will connect to the existing at all three (3) levels and match the exterior material including cast stone, brick, window systems, and standing seam roofing, (hereinafter “Services”) pursuant to RFP 17-037; and
WHEREAS, Contractor represents that it is qualified and desires to perform such services.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth below, the parties agree as follows:
AGREEMENT
Section 1. Scope of Services
1.1 Contractor shall render Services to County as defined in the Proposal dated February 1, 2017 (attached hereto as Exhibit A).
1.2 In accordance with Chapter 2258 of the Texas Government Code, all persons employed by Contractor shall be compensated at not less than the rates shown in the attached Exhibit B. Contractor shall keep detailed records of each of its workers and said records shall be made available to County for inspection at all reasonable times.
Section 2. Personnel
2.1 Contractor represents that it presently has, or is able to obtain, adequate qualified personnel in its employment for the timely performance of the Scope of Services required under this Agreement and that Contractor shall furnish and maintain, at its own expense, adequate and sufficient personnel, in the opinion of County, to perform the Scope of Services when and as required and without delays.
2.2 All employees of Contractor shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Contractor who, in the opinion of County, is incompetent or by his conduct becomes detrimental to the project shall, upon request of County, immediately be removed from association with the project.
Section 3. Compensation and Payment
3.1 Contractor’s fees shall be calculated at the rates set forth in the attached exhibits. The Maximum Compensation for the performance of Services within the Scope of Services described in Exhibit A is twenty million four hundred forty-seven thousand dollars and no/100 ($20,447,000.00). In no case shall the amount paid by County under this Agreement exceed the Maximum Compensation without an approved change order.
3.2 All performance of the Scope of Services by Contractor including any changes in the Scope of Services and revision of work satisfactorily performed will be performed only when approved in advance and authorized by County.
3.3 Contractor shall submit all “Applications for Payment” (as herein defined) for installments of the Maximum Compensation for approval and processing to County staff designated by the Facilities Management & Planning Director, one (1) electronic (pdf) or one (1) original on a monthly basis showing the amounts due for services performed on or before the tenth (10th) day of each calendar month during the progress of the Services. Each Application for Payment shall be in a form acceptable to the County and shall reflect any amount representing the proportionate part of the Services performed during the previous month. As support of each Application for Payment, Contractor shall submit the following in a form acceptable to the County Auditor:
3.3.1 A statement in the form of the current Application and Certificate for Payment, as published by the American Institute of Architects (“Application for Payment”) executed by Contractor certifying that:
3.3.1.1 The proportionate part of the Services described in such Application for Payment has been performed;
3.3.1.2 Contractor’s amount included in the Application for Payment attributable to the Services provided is due and owing;
3.3.1.3 There are no known mechanics' or materialmen's liens outstanding as of the date of the Application for Payment or if such liens are known, such have been adequately bonded;
3.3.1.4 All due and payable bills with respect to the Services have been paid to date or are included in the amount requested in the current Application for Payment, and
3.3.1.5 Except for such bills not paid but so included, there is no known basis for the filing of any mechanics' or materialmen's liens on the Services.
3.3.2 A partial lien waiver and release in a form acceptable to the County Auditor effective through the date of Contractor’s preceding Application for Payment, executed by Contractor with a statement certifying those matters set forth in clauses 3.3.1.1 through
3.3.1.5 of subparagraph 3.3.1 above, certifying that waivers from all subcontractors and materialmen have been obtained in such form so as to constitute an effective waiver of liens under the laws of the State of Texas.
3.3.3 An affidavit executed by Contractor that payrolls, bills for materials and equipment, and other indebtedness connected with the Services for which County or Contractor might be responsible or encumbered (less amounts withheld by Contractor) have been paid or otherwise satisfied, including unconditional waivers and releases upon final payment from all trade contractors, suppliers, material men, or other third parties that provided labor, services, equipment or material to the Project, satisfying the requirements for such releases set forth in the Texas Property Code Section 53.085.
3.4 Within thirty (30) days after receipt of each uncontested Application for Payment together with the supporting materials required under this Agreement, County shall advance to Contractor the uncontested amount requested in such uncontested Application for Payment, except five percent (5%) of the amount requested (hereinafter “Retainage”) in each Application for Payment by County. The Retainage withheld shall be released upon final completion of the entire Project and verification of satisfactory work performed, unless grounds exist for withholding payment on account of other defaults by Contractor, including Services provided by its sub-contractors.
3.5 Payment, constituting the entire unpaid balance of the Maximum Compensation, less fifty percent (50%) of the Retainage then held by County and such amount as the Facilities Management & Planning Director determines is reasonably necessary for all incomplete Services (including, without limitation, punchlist items) and for all unsettled claims, as provided in this Agreement, shall be advanced by County to Contractor upon the date determined substantially completed. County shall pay all outstanding and withheld portions of the Maximum Compensation to Contractor upon the later to occur of (i) thirty (30) days after the Project is accepted by the County or, (ii) the date the Contractor causes all mechanics’ and materialmen’s liens filed against the Project to be removed. County shall have received from Contractor a lien waiver or an affidavit to the effect that it and all its subcontractors and suppliers of labor and materials have been paid in full (which lien waiver or affidavit must be in form and substance sufficient as a matter of law to dissolve all liens or claims of liens for labor or service performed or rendered and material supplied or furnished, in connection with the construction and installation of the Project), and with respect to this Agreement, Contractor shall have provided County the Final Certificate of Occupancy for the building.
3.6 Upon payment of the entire balance of the Maximum Compensation and all other amounts withheld by County pursuant to Section 3.5, Contractor shall execute and deliver to County a release discharging County from all liabilities, obligations and claims to pay the Maximum Compensation to this Agreement.
Section 4. Limit of Appropriation
4.1 Contractor clearly understands and agrees, such understanding and agreement being of the absolute essence of this Agreement, that County shall have available the total maximum sum of twenty million four hundred forty-seven thousand dollars and no/100 ($20,447,000.00), specifically allocated to fully discharge any and all liabilities County may incur.
4.2 Contractor does further understand and agree, said understanding and agreement also being of the absolute essence of this Agreement, that the total maximum compensation that Contractor may become entitled to and the total maximum sum that County may become liable to pay to Contractor shall not under any conditions, circumstances, or interpretations thereof exceed twenty million four hundred forty-seven thousand dollars and no/100 ($20,447,000.00).
Section 5. Time of Performance
5.1 The time for performance of the Scope of Services by Contractor shall begin with receipt of the Notice to Proceed from County and end no later than four hundred eighty-five (485) calendar days thereafter. Contractor shall complete the tasks described in the Scope of Services within this time or within such additional time as may be extended by the County.
5.2 If the Services are not substantially completed within the time for performance or within such additional time as may be extended by County, County will deduct from the final payment as liquidated damages and not as a penalty the sum of two hundred and fifty ($250.00) per calendar day that the Services are not substantially complete. Such sum is agreed upon as a reasonable and proper measure of the damages County will sustain.
Section 6. Modifications and Waivers
6.1 The parties may not amend or waive this Agreement, except by a written agreement executed by both parties.
6.2 No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition.
6.3 The rights and remedies of the parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity, or by statute.
Section 7. Termination
7.1 County’s Right to Terminate for Convenience – County may terminate this Agreement at any time upon thirty (30) days written notice.
7.2 County’s Right to Terminate for Default
7.2.1 County may terminate the whole or any part of this Agreement for cause in the following circumstances:
7.2.1.1 If Contractor fails to perform services within the time specified in the Scope of Services or any extension thereof granted by the County in writing;
7.2.1.2 If Contractor materially breaches any of the covenants or terms and conditions set forth in this Agreement or fails to perform any of the other provisions of this Agreement or so fails to make progress as to endanger performance of this Agreement in accordance with its terms, and in any of these circumstances does not cure such breach or failure to County’s reasonable satisfaction within a period of ten (10) calendar days after receipt of notice from County specifying such breach or failure.
7.2.2 If, after termination, it is determined for any reason whatsoever that Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the County in accordance with Section 7.1 above.
7.3 Contractor may terminate the Contract if is Contractor is unable to perform services for a period of thirty (30) consecutive days through no act or fault of the Contractor, a Subcontractor or their agents or employees or any other persons or entities performing portions of the services under the Agreement under direct or indirect contract with the Contractor, regardless of County’s offer of an extension of time to perform such services.
7.4 Upon termination of this Agreement, County shall compensate Contractor in accordance with Section 3, above, for those services which were provided under this Agreement prior to its termination and which have not been previously presented for payment by Contractor to County. Contractor’s final Pay Application for said services will be presented to and paid by County in the same manner set forth in Section 3 above.
7.5 If County terminates this Agreement as provided in this Section, no fees of any type, other than fees due and payable at the Termination Date, shall thereafter be paid to Contractor.
7.6 If the Contractor is delayed in the commencement or progress of performing the Services under the Agreement for a period of seven (7) consecutive calendar days or more, by an intentional act or inaction of the County or Architect, or an employee of either, or of a separate contractor employed by County; or by changes ordered in the work to be performed; or by labor disputes, labor unavailability, fire, adverse weather conditions, unusual delays in deliveries, unavoidable casualties or other causes beyond the Contractor’s control that County and Contractor mutually agree resulted in a delay beyond the Contractor’s control, the Time of Performance under Section 5 above shall be extended by written agreement for such reasonable time as determined by the County. This does not preclude the pursuit of damages by delay for either party.
Section 8. Ownership and Reuse of Documents All documents, data, reports, research, graphic presentation materials, etc., developed by Contractor as a part of its work under this Agreement, shall become the property of County upon completion of this Agreement, or in the event of termination or cancellation thereof, at the time of payment under Section 3 for work performed. Contractor shall promptly furnish all such data and material to County on request.
Section 9. Inspection of Books and Records Contractor will permit County, or any duly authorized agent of County, to inspect and examine the books and records of Contractor for the purpose of verifying the amount of work performed under the Scope of Services. County’s right to inspect survives the termination of this Agreement for a period of four years.
Section 10. Insurance
10.1 Prior to commencement of the Services, Contractor shall furnish County with properly executed certificates of insurance which shall evidence all insurance required and provide that such insurance shall not be canceled, except on 30 days’ prior written notice to County. Contractor shall provide certified copies of insurance endorsements and/or policies if requested by County. Contractor shall maintain such insurance coverage from the time Services commence until Services are completed and provide replacement certificates, policies and/or endorsements for any such insurance expiring prior to completion of Services. Contractor shall obtain such insurance written on an Occurrence form (or a Claims Made form for Professional Liability Insurance) from such companies having Best’s rating of A/VII or better, licensed or approved to transact business in the State of Texas, and shall obtain such insurance of the following types and minimum limits:
10.1.1 Workers’ Compensation insurance in accordance with the laws of the State of Texas. Substitutes to genuine Workers’ Compensation Insurance will not be allowed.
10.1.2 Employers’ Liability insurance with limits of not less than $1,000,000 per injury by accident, $1,000,000 per injury by disease, and $1,000,000 per bodily injury by disease.
10.1.3 Commercial general liability insurance with a limit of not less than $1,000,000 each occurrence and $2,000,000 in the annual aggregate. Policy shall cover liability for bodily injury, personal injury, and property damage and products/completed operations arising out of the business operations of the policyholder.
10.1.4 Business Automobile Liability insurance with a combined Bodily Injury/Property Damage limit of not less than $1,000,000 each accident. The policy shall cover liability arising from the operation of licensed vehicles by policyholder.
10.2 County and the members of Commissioners Court shall be named as additional insured to all required coverage except for Workers’ Compensation and Professional Liability (if required). All Liability policies including Workers’ Compensation written on behalf of Contractor, excluding Professional Liability and Builder’s Risk, shall contain a waiver of subrogation in favor of County and members of Commissioners Court.
10.3 If required coverage is written on a claims-made basis, Contractor warrants that any retroactive date applicable to coverage under the policy precedes the effective date of the contract; and that continuous coverage will be maintained or an extended discovery period will be exercised for a period of 2 years beginning from the time that work under the Agreement is completed.
10.4 Builder’s Risk Insurance: Contractor shall obtain Builder’s Risk Insurance “Special Form” with coverage, including, but not limited to, fire, extended coverage, vandalism and malicious mischief, theft and, if applicable, flood, earth movement and named storm.
10.4.1 Builder’s risk limit shall be equal to one hundred percent (100%) percent of the Contract Sum (to include all phases of work) plus, if any, existing property and Countyfurnished equipment specified by County.
10.4.2 The policy shall be written jointly in the names of County and Contractor with subcontractors named as additional insureds, and shall contain a waiver of subrogation in favor of Contractor, Architect, subcontractors of any tier and County for loss or damage occurring during the performance of Services.
10.4.3 In addition, the Builder’s Risk policy shall provide coverage as follows:
10.4.3.1 This insurance shall be specific as to coverage and not contributing insurance with any permanent insurance maintained on the property.
10.4.3.2 This insurance shall not contain an occupancy clause suspending or reducing coverage should County partially occupy the Site and before the parties have determined Substantial Completion.
10.4.3.3 Loss, if any, shall be adjusted with and made payable to County as trustee for the insureds as their interests may appear. County shall be named as loss payee.
10.4.3.4 For renovation projects or projects that involve portions of Work contained within an existing structure, Contractor will provide an existing structure endorsement covering the existing structure with a limit of not less than ten million dollars and no/100 ($10,000,000.00).
10.4.3.5 For County furnished equipment or materials that will be in care, custody or control of Contractor, Contractor will be responsible for damage and loss.
10.4.3.6 For those properties located within a Tier 1 or 2 windstorm area, named storm coverage must be provided with limits specified by County.
10.4.3.7 For those properties located in flood prone areas, flood insurance coverage must be provided with limits specified by County.
10.4.3.8 Builder’s risk insurance policy shall remain in effect until Substantial Completion.
10.4.4 In the event of an insured loss caused by the action or inaction of Contractor, any subcontractor or sub-subcontractor, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable, Contractor will be responsible for any applicable deductible under the builder’s risk insurance policy. For any damage or loss to the existing structure caused by flood or windstorm to which Contractor’s existing structure endorsement applies, County will be responsible for (i) applicable flood and windstorm deductibles, (ii) any cost of flood or windstorm damage that is excluded or not reimbursed under the endorsement, and (iii) for any costs over the limits of the flood and windstorm coverage under the existing structure endorsement. Any costs associated with Contractor’s responsibility for the applicable deductible will not be considered cost of Work.
Section 11. Performance and Payment Bond Contractor shall post with County, not later than ten (10) days of the execution of this Agreement, a performance and payment bond in the amount of one hundred percent (100%) of the total lump sum price in such form as is satisfactory to County. The bond shall be executed by a corporate surety company duly authorized and admitted to do business in the State of Texas and licensed to issue such a bond in the State of Texas.
Section 12. Indemnity
12.1 CONTRACTOR SHALL INDEMNIFY AND DEFEND COUNTY AGAINST ALL LOSSES, LIABILITIES, CLAIMS, CAUSES OF ACTION, AND OTHER EXPENSES, INCLUDING REASONABLE ATTORNEYS FEES, ARISING FROM ACTIVITIES OF CONTRACTOR, ITS AGENTS, SERVANTS OR EMPLOYEES, PERFORMED UNDER THIS AGREEMENT THAT RESULT FROM THE NEGLIGENT ACT, ERROR, OR OMISSION OF CONTRACTOR OR ANY OF CONTRACTOR’S AGENTS, SERVANTS OR EMPLOYEES.
12.2 Contractor shall timely report all such matters to County and shall, upon the receipt of any such claim, demand, suit, action, proceeding, lien or judgment, not later than the fifteenth day of each month; provide County with a written report on each such matter, setting forth the status of each matter, the schedule or planned proceedings with respect to each matter and the cooperation or assistance, if any, of County required by Contractor in the defense of each matter.
12.3 Contractor's duty to defend indemnify and hold County harmless shall be absolute. It shall not abate or end by reason of the expiration or termination of the Agreement unless otherwise agreed by County in writing. The provisions of this section shall survive the termination of the Agreement and shall remain in full force and effect with respect to all such matters no matter when they arise.
12.4 In the event of any dispute between the parties as to whether a claim, demand, suit, action, proceeding, lien or judgment appears to have been caused by or appears to have arisen out of or in connection with acts or omissions of Contractor, Contractor shall never-theless fully defend such claim, demand, suit, action, proceeding, lien or judgment until and unless there is a determination by a court of competent jurisdiction that the acts and omissions of Contractor are not at issue in the matter.
12.5 Contractor's indemnification shall cover, and Contractor agrees to indemnify County, in the event County is found to have been negligent for having selected Contractor to perform the work described in this request.
12.6 The provision by Contractor of insurance shall limit the liability of Contractor to County for claims arising out of or in connection with this Agreement which are covered by such insurance. In no event will Contractor be liable for damages covered by insurance in excess of the insurance proceeds paid to County under any applicable insurance policy(ies).
12.7 Contractor shall cause all trade contractors and any other contractor who may have a contract to perform construction or installation work in the area where work will be performed under this request, to agree to indemnify County and to hold it harmless from all claims for bodily injury and property damage that may arise from said Contractor's operations. Such provisions shall be in form satisfactory to County.
12.8 Loss Deduction Clause - County shall be exempt from, and in no way liable for, any sums of money which may represent a deductible in any insurance policy. The payment of deductibles shall be the sole responsibility of Contractor and/or trade contractor providing such insurance.
Section 13. Confidential and Proprietary Information
13.1 Contractor acknowledges that it and its employees or agents may, in the course of performing their responsibilities under this Agreement, be exposed to or acquire information that is confidential to County. Any and all information of any form obtained by Contractor or its employees or agents from County in the performance of this Agreement shall be deemed to be confidential information of County ("Confidential Information"). Any reports or other documents or items (including software) that result from the use of the Confidential Information by Contractor shall be treated with respect to confidentiality in the same manner as the Confidential Information. Confidential Information shall be deemed not to include information that (a) is or becomes (other than by disclosure by Contractor) publicly known or is contained in a publicly available document; (b) is rightfully in Contractor's possession without the obligation of nondisclosure prior to the time of its disclosure under this Agreement; or (c) is independently developed by employees or agents of Contractor who can be shown to have had no access to the Confidential Information.
13.2 Contractor agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Contractor uses in maintaining the confidentiality of its own confidential information, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than the provision of Services to County hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall use its best efforts to assist County in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, Contractor shall advise County immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and Contractor will at its expense cooperate with County in seeking injunctive or other equitable relief in the name of County or Contractor against any such person. Contractor agrees that, except as directed by County, Contractor will not at any time during or after the term of this Agreement disclose, directly or indirectly, any Confidential Information to any person, and that upon termination of this Agreement or at County's request, Contractor will promptly turn over to County all documents, papers, and other matter in Contractor’s possession which embody Confidential Information.
13.3 Contractor acknowledges that a breach of this Section, including disclosure of any Confidential Information, or disclosure of other information that, at law or in equity, ought to remain confidential, will give rise to irreparable injury to County that is inadequately compensable in damages. Accordingly, County may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interest of County and are reasonable in scope and content.
13.4 Contractor in providing all services hereunder agrees to abide by the provisions of any applicable Federal or State Data Privacy Act.
13.5 Contractor expressly acknowledges that County is subject to the Texas Public Information Act, TEX. GOV’T CODE ANN. §§ 552.001 et seq., as amended, and notwithstanding any provision in the Agreement to the contrary, County will make any information related to the Agreement, or otherwise, available to third parties in accordance with the Texas Public Information Act. Any proprietary or confidential information marked as such provided to County by Consultant shall not be disclosed to any third party, except as directed by the Texas Attorney General in response to a request for such under the Texas Public Information Act, which provides for notice to the owner of such marked information and the opportunity for the owner of such information to notify the Attorney General of the reasons why such information should not be disclosed.
Section 14. Independent Contractor
14.1 In the performance of work or services hereunder, Contractor shall be deemed an independent contractor, and any of its agents, employees, officers, or volunteers performing work required hereunder shall be deemed solely as employees of contractor or, where permitted, of its subcontractors.
14.2 Contractor and its agents, employees, officers, or volunteers shall not, by performing work pursuant to this Agreement, be deemed to be employees, agents, or servants of County and shall not be entitled to any of the privileges or benefits of County employment.
Section 15. Notices
15.1 Each party giving any notice or making any request, demand, or other communication (each, a “Notice”) pursuant to this Agreement shall do so in writing and shall use one of the following methods of delivery, each of which, for purposes of this Agreement, is a writing: personal delivery, registered or certified mail (in each case, return receipt requested and postage prepaid), or nationally recognized overnight courier (with all fees prepaid).
15.2 Each party giving a Notice shall address the Notice to the receiving party at the address listed below or to another address designated by a party in a Notice pursuant to this Section: County: Fort Bend County Facilities Management and Planning Attn: Director 301 Jackson Street, Suite 301 Richmond, Texas 77469 With a copy to: Fort Bend County Attn: County Judge 401 Jackson Street Richmond, Texas 77469 Contractor: Brookstone, LP Attn: Ryan Busking, LEED-AP 3715 Dacoma Street Houston, Texas 77092
15.3 A Notice is effective only if the party giving or making the Notice has complied with subsections 15.1 and 15.2 and if the addressee has received the Notice. A Notice is deemed received as follows:
15.3.1 If the Notice is delivered in person, or sent by registered or certified mail or a nationally recognized overnight courier, upon receipt as indicated by the date on the signed receipt.
15.3.2 If the addressee rejects or otherwise refuses to accept the Notice, or if the Notice cannot be delivered because of a change in address for which no Notice was given, then upon the rejection, refusal, or inability to deliver.
Section 16. Compliance with Laws Contractor shall comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any matter affecting the performance of this Agreement, including, without limitation, Worker’s Compensation laws, minimum and maximum salary and wage statutes and regulations, licensing laws and regulations. When required by County, Contractor shall furnish County with certification of compliance with said laws, statutes, ordinances, rules, regulations, orders, and decrees above specified.
Section 17. Performance Warranty
17.1 Contractor warrants to County that Contractor has the skill and knowledge ordinarily possessed by well-informed members of its trade or profession practicing in the greater Houston metropolitan area and Contractor will apply that skill and knowledge with care and diligence to ensure that the Services provided hereunder will be performed and delivered in accordance with the highest professional standards.
17.2 Contractor warrants to County that the Services will be free from material errors and will materially conform to all requirements and specifications contained in the attached Exhibit A.
Section 18. Assignment and Delegation
18.1 Neither party may assign any of its rights under this Agreement, except with the prior written consent of the other party. That party shall not unreasonably withhold its consent. All assignments of rights are prohibited under this subsection, whether they are voluntarily or involuntarily, by merger, consolidation, dissolution, operation of law, or any other manner.
18.2 Neither party may delegate any performance under this Agreement.
18.3 Any purported assignment of rights or delegation of performance in violation of this Section is void.
Section 19. Applicable Law The laws of the State of Texas govern all disputes arising out of or relating to this Agreement. The parties hereto acknowledge that venue is proper in Fort Bend County, Texas, for all legal actions or proceedings arising out of or relating to this Agreement and waive the right to sue or be sued elsewhere. Nothing in the Agreement shall be construed to waive the County’s sovereign immunity.
Section 20. Successors and Assigns County and Contractor bind themselves and their successors, executors, administrators and assigns to the other party of this Agreement and to the successors, executors, administrators and assigns of the other party, in respect to all covenants of this Agreement.
Section 21. Third Party Beneficiaries This Agreement does not confer any enforceable rights or remedies upon any person other than the parties.
Section 22. Severability If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.
Section 23. Publicity Contact with citizens of Fort Bend County, media outlets, or governmental agencies shall be the sole responsibility of County. Under no circumstances whatsoever, shall Contractor release any material or information developed or received in the performance of the Services hereunder without the express written permission of County, except where required to do so by law.
Section 24. Captions The section captions used in this Agreement are for convenience of reference only and do not affect the interpretation or construction of this Agreement.
Section 25. Conflict In the event there is a conflict between this Agreement and the attached exhibits this Agreement controls.
IN WITNESS WHEREOF, the parties hereto have signed or have caused their respective names to be signed to multiple counterparts to be effective on the day signed by the last party.
FORT BEND COUNTY
BROOKSTONE, LP
By: Brookstone Management, LLC
Robert E. Hebert, County Judge
Authorized Agent – Signature
Date
Authorized Agent – Printed Name
ATTEST:
Title
Laura Richard, County Clerk
Date
APPROVED:
James Knight, Facilities Management/Planning Director
APPROVED AS TO LEGAL FORM:
Marcus D. Spencer, First Assistant County Attorney
AUDITOR’S CERTIFICATE
I hereby certify that funds are available in the amount of $__________ to accomplish and pay the obligation of Fort Bend County under this contract.
Robert Ed Sturdivant, County Auditor
EXHIBIT A
February 8, 2017 Mr. James Knight Director of Facilities Management & Planning Fort Bend County 301 Jackson Richmond, TX 77469 Dear Mr. Knight: Pursuant to the County’s January 3, 2017 order to enter negotiations for the above referenced project with Brookstone, LP, we are very pleased to present the following proposal for your review. Having examined the contract documents per Attachment No. 1, Brookstone proposes to perform the Work of the Project required by the Contract Documents for the sum set forth on the following pages. If in conflict with other Contract Documents, this Proposal Letter shall have priority. Our services will include supervision, all scope of work items, insurance, performance and payment bonds, and contractor fee. A detailed estimate is included in Attachment No. 2. Please let us know if you require additional information. We thank you again for the opportunity and look forward to a successful project. Respectfully submitted,
BROOKSTONE, L.P.
by: Brookstone Management, LLC Ryan Busking Vice President
PROPOSAL
Project: Fort Bend County Justice Center Expansion
1422 Eugene Heiman Circle Richmond, TX 77469
Architect: Paul Bonnette
PGAL
3131 Briarpark Dr. Houston, TX 77042
I. Lump Sum Price Brookstone agrees to perform the Work of this project in accordance with the Contract Documents as amended by the qualifications and/or clarifications herein for the following Lump Sum Price: ($20,447,000) Twenty million four hundred forty seven thousand dollars. See attached Attachment 2 for Schedule of Value breakout.
II. Contract Time Brookstone agrees to commence the Work within zero (0) calendar days from the date of an effective Notice to Proceed and be substantially complete within (485) calendar days from effective Notice to Proceed (NTP). The issuance of an effective Notice to Proceed by the Architect or Owner is contingent upon Brookstone’s receipt of the following: (1) appropriate building permits for the work; (2) executed contract documents with addenda, building permit changes, accepted alternates and value engineering changes incorporated and issued for construction; (3) executed tax exemption, Weather Days shall pertain to such items as rain, flooding, snow, unusually high winds, excessively wet or dry grounds, or conditions which prevent progress on major portions of the Work on regular working days only. On a month to month basis, if such situations occur on more than the number of Normal Weather Days in the month, as stated above, and if those additional days prevent the Contractor from performing critical portions of the scheduled Work, extensions of time caused by such excess normal adverse weather days shall be granted to Contractor. Working Days will be converted to calendar days by a multiplier of 1.4. The following Normal Weather Days weather days have been included in the schedule:
January - 2 July - 5
February - 4 August - 3
March - 2 September - 3
April - 2 October - 3
May - 2 November - 3
June - 3 December - 4
III. Addenda Received and Incorporated Addendum #1, dated December 14, 2016.
IV. Alternates Accepted and Incorporated None.
V. Bid Qualifications and/or Clarifications
1. While some specified materials, components, means and methods may coincidentally be appropriate for projects seeking LEED accreditation, all parties recognize and agree there is no requirement or intention to seek LEED accreditation for this project.
2. Brookstone includes the following allowances. Each allocation will later include a markup of 6% for fees and insurances plus appropriate General Conditions:
a) Misc Signage … $20,000
b) Cooling Tower Foundation/Structure … $15,000
c) Exterior Lighting … $15,000
d) Temporary Access to Existing Justice Center … $10,000
e) Noise Protection for Justice Center Occupants … $15,000
f) Relocate existing chiller … $5,000
g) Owner Contingency … $972,000
3. All allowances include the cost of materials, shipping, handling and installation unless specifically noted otherwise above. Whenever costs are more than or less than allowance, the Contract Sum shall be adjusted accordingly by Change Order.
4. Owner Contingency to be used at the sole discretion of the Owner to address unforeseen conditions or modifications to the scope as required.
5. Prior to the approval of the Construction Change Directives by Change Order and without written mutual agreement to the contrary, the combined value of any pending Construction Change Directives and/or unresolved change orders shall not exceed one percent (1%) of the Original Contract Amount.
6. Brookstone will have no responsibility or liability for extended warranties, if any, but will make reasonable effort to assist the Owner with coordination of any warranty work, regardless of the specified warranty period.
7. Schedule delays resulting from hurricanes and named tropical storms can be anticipated in Texas, but because of cost and schedule constraints, these types of delays have specifically not been incorporated into this project’s delivery schedule. To do so would impose unnecessary heavy burdens and cost constraints on this project that has relatively low chance of actually occurring. For purposes of this Agreement, hurricane and named tropical storm delays will be treated as Force Majeure delays. The Contractor shall be reimbursed for their extended General Conditions expenses and all cost of preparation, clean-up, remobilization, and any losses not covered by insurance. Days of delay include the downtime during preparations for the arrival of the storm and any clean-up and remobilization days that may be required thereafter.
8. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes:
a) damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and
b) damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination. This shall not be deemed to preclude an award of liquidated damages, in accordance with the requirements of the Contract Documents.
9. Building pad will be excavated to an elevation approximately two feet above spread footings. After installation of footings and plinths, common fill will be used to backfill and support carton forms. Select fill will only be used for ramp areas.
10. Brookstone excludes the following:
a) Specifications Sections 033300, 071700, 072180, 081433, 083000, 088810, as they do not apply to this project,
b) Work in existing Justice Center 3rd floor corridor,
c) Cost of ICC permit review,
d) Texas Department of Licensing and Regulation (TDLR) accessibility inspection, fees, costs, or resulting design corrections,
e) Costs for establishment or processing of easements,
f) Municipal fees, utility assessments, or impact fees,
g) Permanent service construction or relocation cost from any electrical, gas, telephone or cable provider. All costs for work performed by these utility or provider companies are to be paid by the Owner, unless otherwise qualified in this proposal,
h) Printing of bidding or construction documents (to be provided by Owner),
i) Utility usage cost (temporary or permanent),
j) Construction materials testing,
k) Security guard / service,
l) Engineering survey of conditions of existing buildings,
m) Seismic Survey Agency, seismic testing, seismic survey or other seismic-related work,
n) Utilities, roads or other construction outside of construction limits or property boundary,
o) Cost of repairs to existing paving or driveways damaged by normal construction related traffic loads,
p) Any dewatering, well-pointing, or removal of ground-source water,
q) Tunneling or boring for site utilities unless specifically shown and noted on civil plans,
r) Handling of any hazardous materials,
s) Temporary provisions required for abatement work,
t) Salvaging or relocation of any existing trees, shrubs, or landscaping,
u) Clean, pack/crate, transport, store or protect existing furniture or salvaged items displaced during construction activities,
v) Casing or slurry drilling of piers,
w) Straight shaft piers in lieu of drilled and under-reamed piers,
x) Sloping of floors to drains at restrooms in existing buildings,
y) Engineering seal or calculations on structure or miscellaneous steel,
z) Fire protection in existing buildings,
aa) Fire protection of exterior canopies, porticos, or walkways,
bb) Fire protection of attic or plenum spaces,
cc) Temporary HVAC equipment during construction (this proposal assumes that use of permanent HVAC system is allowed to vent and condition the spaces during construction activities),
dd) Duct cleaning; Ductwork will be protected and sealed during construction,
ee) Lightning protection at existing buildings,
ff) Telephone cabling,
gg) Telephone and data system,
11. If anything in the Contract Documents is inconsistent, the order of precedence is as follows:
a. Brookstone Proposal and attachments dates February 1, 2017
b. Change Orders
c. Contract
d. Addenda, with those of later date having precedence over those of earlier date
e. Supplementary Conditions
f. Drawings
g. Specifications
END OF PROPOSAL
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Payment Terms
Contractor submits monthly Applications for Payment on the AIA form for services performed through the 10th of each month (Section ). Each needs a certification, a partial lien waiver for the prior application, and a payroll and bills affidavit, with unconditional waivers from all trades at final payment (Sections to ). County pays uncontested amounts within 30 days after receipt, so payment is not conditioned on any third party (Section ). Retainage is 5%, described as released at final completion of the entire Project (Section ), yet at substantial completion County advances the balance less 50% of retainage and reserves for punchlist and claims (Section ). Final payment waits for acceptance, lien clearance, waivers, and the Certificate of Occupancy (Section ), then a release (Section ). Flag: the two retainage provisions conflict, and County may withhold for any default, including subcontractors' (Section ).
Changes and Claims
Any change to the Services must be approved in advance and authorized by County (Section ), and the agreement can be amended only in a writing signed by both parties (Section ). Total payments cannot exceed the $20,447,000 maximum without an approved change order (Section ). Allowance overruns and underruns adjust the price by change order, with a 6% markup on allowances (Ex. , Ex. ). Pending change directives and unresolved change orders are capped at 1% of the original amount unless both parties agree otherwise (Ex. ). Not addressed in this contract: notice deadlines for claims, pricing methods for other changes, and a duty to keep working during disputes. Flag: Contractor has no payment right for work County has not authorized in advance (Section ), and County alone decides how Owner Contingency is spent (Ex. ).
Schedule and Delay
Time runs from receipt of the Notice to Proceed and ends no later than 485 calendar days later, subject to extension by County (Section ). Substantial completion after that date costs $250 per calendar day, deducted from final payment, with no cap stated (Section ). Delays of seven or more consecutive days caused by intentional County or Architect acts, separate contractors, ordered changes, or other causes both parties agree were beyond Contractor's control earn an extension, for a reasonable time County determines (Section ). Either party may still pursue delay damages, so no no-damages-for-delay clause appears (Section ). Excess normal weather days earn time (Ex. ), and hurricane delays are force majeure with reimbursed extended general conditions (Ex. ). Milestones, a final completion deadline, schedule updates, and acceleration are not addressed in this contract. Flag: extensions need County's agreement, and County sets their length.
Risk Transfer
Contractor must indemnify and defend County against losses arising from Contractor's activities that result from its negligent acts or omissions (Section ). The duty to defend is absolute, survives termination, and continues until a court finds Contractor's acts are not at issue (Sections , ). Flag: the indemnity extends to a finding that County was negligent in selecting Contractor (Section ). For insured claims, Contractor's liability is limited to insurance proceeds (Section ). Required coverage is $1,000,000 per occurrence and $2,000,000 aggregate general liability, $1,000,000 auto and employers' liability, and workers' compensation, with County and Commissioners Court as additional insureds and waivers of subrogation (Sections , ). Builder's risk covers 100% of the Contract Sum, plus a $10,000,000 existing-structure endorsement (Sections , ). A 100% performance and payment bond is due within ten days of signing (Section ). Trade contractors must also indemnify County (Section ).
Termination and Disputes
County may terminate for convenience on 30 days' written notice (Section ), or for cause if Contractor misses the performance time, or materially breaches and fails to cure within ten calendar days of notice (Section ). A termination later found improper converts to convenience (Section ). Contractor may terminate only if unable to perform for 30 consecutive days through no fault of its own (Section ). On termination, County pays for services provided and unbilled, and no other fees follow (Sections , ). The right to suspend work is not addressed in this contract, nor are notice steps, mediation, arbitration, or attorneys' fees for disputes. Texas law governs, venue is Fort Bend County, and County's sovereign immunity is not waived (Section ). Both sides waive consequential damages, including on termination (Ex. ). Flag: the missed-deadline default has no cure period, and Contractor's only exit right is narrow.
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