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05-12-2015 Agenda with backupCity Council Agenda REGULAR SESSION CITY COUNCIL May 12,2015,6:00 P.M. HAL BALDWIN MUNICIPAL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #4 SCHERTZ, TEXAS 78154 Call to Order — City Council Regular Session Invocation and Pledges of Allegiance to the Flats of the United States and State of Texas. (Mayor Pro -Tem Edwards) City Events and Announcements • Announcements of upcoming City Events Q. Bierschwale /B. James) • Announcements and recognitions by City Manager Q. Kessel) Proclamations • National Police Week (Mayor Carpenter) Presentation • Presentation from the Schertz Police Department regarding the Explorers and Wounded Warrior Programs. (J. Bierschwale /M. Hansen) • Presentation from the San Antonio Feral Cat Coalition (J. Bierschwale /M. Harris /S. Roman) • Presentation regarding the Hal Baldwin Scholarship Award Recommendations (B. Cantu /S. Gonzalez) 05 -12 -2015 Council Agenda Workshop • Presentation, discussion and possible action regarding the Charter Review Commission's submission of Charter amendments to be placed on the November 3, 2015 ballot. (Mark Davis, Chair Charter Review Commission) • Presentation, discussion regarding proposed Bond Initiatives by the Bond Committee. (Michael Dahle, Chair Bond Committee) • Discussion and update regarding the Classification and Compensation Study. (B. Cantu /J. Walters) Hearing of Residents This time is set aside for any person who wishes to address the City Council. Each person should fill out the speaker's register prior to the meeting. Presentations should be limited to no more than 3 minutes. All remarks shall be addressed to the Council as a body, and not to any individual member thereof. Any person making personal, impertinent, or slanderous remarks while addressing the Council may be requested to leave the meeting. Discussion by the Council of any item not on the agenda shall be limited to statements of specific factual information given in response to any inquiry, a recitation of existing policy in response to an inquiry, and /or a proposal to place the item on a future agenda. The presiding officer, during the Hearing of Residents portion of the agenda, will call on those persons who have signed up to speak in the order they have registered. Consent Agenda Items The Consent Agenda is considered self - explanatory and will be enacted by the Council with one motion. There will be no separate discussion of these items unless they are removed from the Consent Agenda upon the request of the Mayor or a Councilmember. 1. Minutes - Consideration and /or action regarding the approval of the minutes of the Regular Meeting of May 5, 2015. (J. Kessel/B. Dennis) 2. Ordinance No. 15 -M -15 — Consideration and/or action approving an Ordinance ordering and declaring the 2006, 2008, and 2012 Charter Amendments Adopted. Final Reading (C. Zech /B. Dennis) Discussion and Action Items 3. Resolution No. 15 -R -36— Consideration and/or action approving a Resolution authorizing the Preconstruction Phase Services of the Construction Manager at Risk 05 -12 -2015 City Council Agenda Page - 2 - Agreement for the New Indoor Aquatic Facility and Associated Support Systems. (J. Kessel /P. Gaudreau) Roll Call Vote Confirmation Executive Session 4. City Council will meet in closed session under section 551.074 Evaluations of the Municipal Judges and Prosecutor. Reconvene into Regular Session 4a. Take any necessary action based on discussions held in closed session under Agenda Item number 4 including possible increase in salary. Roll Call Vote Confirmation Requests and Announcements 5. Announcements by City Manager • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives 6. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. 7. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers • Upcoming City Council agenda items Adiournment CERTIFICATION I, BRENDA DENNIS, CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AGENDA WAS PREPARED AND POSTED ON THE OFFICIAL BULLETIN BOARDS ON THIS THE 8th DAY OF MAY 2015 AT 10:00 A.M., WHICH IS A PLACE READILY ACCESSIBLE TO THE PUBLIC AT ALL TIMES AND THAT SAID NOTICE WAS POSTED IN ACCORDANCE WITH CHAPTER 551, TEXAS GOVERNMENT CODE. 05 -12 -2015 City Council Agenda Page - 3 - grewdn Devuvk. ,bs Brenda Dennis, City Secretar I CERTIFY THAT THE ATTACHED NOTICE AND AGENDA OF ITEMS TO BE CONSIDERED BY THE CITY COUNCIL WAS REMOVED BY ME FROM THE OFFICIAL BULLETIN BOARD ON DAY OF 2015. Title: This facility is accessible in accordance with the Americans with Disabilities Act. Handicapped parking spaces are available. If you require special assistance or have a request for sign interpretative services or other services please call 210 -619 -1030. The City Council for the City of Schertz reserves the right to adjourn into executive session at any time during the course of this meeting to discuss any of the matters listed above, as authorized by the Texas Open Meetings Act. Executive Sessions Authorized: This agenda has been reviewed and approved by the City's legal counsel and the presence of any subject in any Executive Session portion of the agenda constitutes a written interpretation of Texas Government Code Chapter 551 by legal counsel for the governmental body and constitutes an opinion by the attorney that the items discussed therein may be legally discussed in the closed portion of the meeting considering available opinions of a court of record and opinions of the Texas Attorney General known to the attorney. This provision has been added to this agenda with the intent to meet all elements necessary to satisfy Texas Government Code Chapter 551.144(c) and the meeting is conducted by all participants in reliance on this opinion. COUNCIL COMMITTEE AND LIAISON ASSIGNMENTS Mayor Carpenter Mayor Pro -Tem Edwards — Place 4 Audit Committee Audit Committee Interview Committee for Boards and Commissions Hal. Baldwin Scholarship Committee Investment Advisory Committee Interview Committee for Boards and Commissions TIRZ 11 Board Cibolo Valley Local Government Corporation Councilmember Fowler — Place 1 Councilmember Azzoz — Place 2 Interview Committee for Boards and Commissions Animal. Control Advisory Committee Schertz Housing Board Liaison Sweetheart Advisory Committee Randolph Joint Land Use Study (JLUS) Executive Committee Schertz Seguin Local Government Corporation Councilmember John — Place 3 Councilmember Thompson Place 5 Lone Star Rail District Audit Committee 05 -12 -2015 City Council Agenda Page - 4 - Agenda No. 1 CITY COUNCIL MEMORANDUM City Council Meeting: May 12, 2015 Department: Subject: BACKGROUND City Secretary Minutes The City Council held a Regular meeting on May 5, 2015. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve the minutes of the regular meeting of May 5, 2015. ATTACHMENT Minutes — Regular meeting May 5, 2015. MINUTES REGULAR MEETING May 05, 2015 A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on May 05, 2015, at 6:00 p.m., in the Hal Baldwin Municipal Complex Council Chambers, 1400 Schertz Parkway, Building #4, Schertz, Texas. The following members present to -wit: Mayor Michael Carpenter Councilmember Jim Fowler Councilmember Daryl John Staff Present: Deputy City Manager John Bierschwale Interim Executive Director Dudley Wait City Attorney Charles Zech Call to Order Mayor Carpenter stated that before we call the meeting to order, he asked that everyone rise and join him in welcoming his honor Mayor Robert. Bueker who served from 1973 . to 1980 as City of Schertz Mayor. Mayor Carpenter and 'Council thanked Mayor Bucker for joining us this evening. Mayor Carpenter called the meeting, to order at 6:00 p.m. Mayor Carpenter rec( his first book entitled Invocation and Pled Texas (Mayor Carpenter) Mayor Pro -Tem Edwards who stated that Mayor Bucker has put out to the Flays of the United States and the State of 4834) Mayor Center recognized: Girl Scout Troop No. 4834, Kara Heath, Brooklyn Heath, Jazlyn Ingram, and Kenzie Hudson w-ho provided the Pledges of Allegiance to the Flags of the United States and the State of Texas. Mayor Carpenter thanked them for joining us this evening. City Events and Announcements • Announcements of upcoming City Events (J. Bierschwale /B. James) Mayor Carpenter recognized Executive Director Brian James and Deputy City Manager John Bierschwale who provided the following announcements: • Thursday, May 7, 2015, . SSLGC Water Treatment Plant Tour, meet in the Administration area at 8:30 a.m., Lunch will be provided. • Thursday, May 7, 2015 Sweetheart Court Coronation, Schertz Civic Center, 5:30 p.m. 05 -05 -201.5 Minutes Page -1- • Tuesday, May 12, 2015, AMM Collision Center, Grand Opening, 10:00 a.m., 806 Main Street. • Thursday, May 14, 2015, Police Memorial Day Service, 11:00 a.m., in front of the Police Department. U pcorning events • Friday, May 1.5, Dog Park Ribbon Cutting -Grand Opening, 3:00 -6:00 p.m., Community Circle Drive. • Friday and Saturday, May 15th and 16, 2015, Food Drive for Bexar, Comal, and Guadalupe County Children and Families in Need. Collecting non- perishable food items. Bring to 1400 Schertz Parkway, Bldg. #3 _(Community Center) for more information call 210 -619 -1636. • Saturday, May 16, 2015, 14th Annual Doggie Dash, Pickrell Park, 200 Aero Drive, 8:00 a.m. Register at www.Homesforpets.org. • Sunday, May 17, Schertz EMS Golf Tournament, Olympia Hills Goff Course, register by Wednesday, May 6th to Matt Tronco o or Amy Sellers at 21.0 - 61944,00.: a • Tuesday, May 19, 2015, Schertz Monthly hamber Luncheon, Schertz Civic Center, 11:30 a.m. Presentation Topic: The 12th Flying, Training Wing Mission, Operations and Community Partnership. Please RSVP by May, 12th • Sunday, May 24, EMS Banquet, 6,00 p.m., Schertz Civic Center. • Friday, May 29, 2015, Hog Wild 2(}15 - FREE Continuing Education Seminar (for all local government elected, appointed Officials and Employees), (sponsored by DNRBH), at Texas State University, an ' Mlarcos. Registration info at: Denton Navarro Rocha Bernal Hyde & Zacn,,J?C's, San A tonio office at 210 - 227 -3243. • Saturday, May 30, 20,15, 3rd Annual, Friends 4 Fisher House Fun Run, The Run, Auction /Rae, Cash, plc. Registration starts at 9:00 a.m. Starts and ends at JW's Bracken Sal60ni ,18400 MI 2252, San Antonio, TX. and (J. Kessel) Mayor Carpenter recognized City Manager John Kessel who stated he wanted to draw attention to the envle(s) that' he had laid in front of their places this evening. Mr. Kessel stated this is a tote from the Schertz United Methodist Church and he wanted to express his personal 'appreciation to the Church because their congregation took time recently, and wrote a similar note to each City Employee. These were handwritten personalized notes, appreciating each particular thing each employee has done or their department has on behalf of the community. Schertz United Methodist Church is appreciative of those efforts. It makes a big difference for our folks and some were personalized with drawings on them. Thanks to Rev. Linda Montgomery and her church. Proclamations Mayor Carpenter presented the following proclamations: • National Public Works Week (Mayor Carpenter) 05 -05 -201.5 Minutes Page - 2 - Mayor Carpenter recognized Public Works Director Sam Willoughby, Assistant Public Works Director Jimmy Hooks, Superintendent of Fleets and Streets Doug Letbetter, Wastewater Manager Larry Busch, General Services Administrative Assistant Judy Vela and Facilities Technician Sam Rhodes. Mayor Carpenter read and presented the proclamation regarding National. Public Works Week. • National Building Safety /Inspections Month (Mayor Carpenter) Mayor Carpenter recognized Development Services Director Michelle Sanchez and Chief Inspector Gil Durant. Mayor Carpenter read and presented the proclamation regarding National Building Safety /Inspections Month. Ms. Sanchez stated that she was leaving some literature regarding safety outside on the table forthos &,mho wish to pick one up. • National Historic Preservation Month (Mayor Mayor Carpenter recognized the members of the came forward. Mayor Carpenter stated that the elected. The Committee has done a lot of w Mayor Carpenter stated that the next task is that Library Card. Pre ltiI MI I Committee started after he was )rniing the history of the City. Bucker has to find the cities #1 Mayor and Council thanked the department$ =for their service to the City. Presentation • Presentation of the Schert ?hoto History Book (B. James/D. Weirtz) No one signed up to 1. Minutes - Consideration and/or action regarding the approval of the minutes of the Regular Meeting of April 28, 2015. Q. Kessel /B. Dennis) 2. Ordinance No. 15 -M -14 — Consideration and /or action approving an Ordinance amending the City's Code of Ordinances Chapter 50, Article IV regulating the discharge of Guns. Final Reading (C. Zech/M. Hansen) 05 -05 -2015 Minutes Page - 3 - The following was read into record: ORDINANCE NO. 15 -M -14 AN ORDINANCE AMENDING THE CITY'S CODE OF ORDINANCES CHAPTER 50, ARTICLE IV REGULATING THE DISCHARGE OF GUNS; PROVIDING FOR CERTAIN EXCEPTIONS; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT WITH THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE 3. Board, Committees and Commission Resignation` - Consideration and/or action ratifying the resignation of Patrick Russell of the Parks Advisory Board. (B. Dennis /Council) Mayor Carpenter recognized Councilmembet'"Fowler who moved, seconded by Mayor Pro -Tem Edwards to approve the consent agenda items 1, 2 and 3. The vote was unanimous with Mayor Pro -Tem Edwards, 'Councilmebers Fowler; Azzoz, John and Thompson voting for and no one voting no: Motion Passed. Discussion and Action Items Mayor Carpenter asked Council if they had any questions. As there were no questions, Mayor Carpenter called" for a motion. Mayor Carpenter recognized Mayor Pro-Tern Edwards who moved, seconded by Councilmember Azzoz to approve Ordinance No. 15 -M -15 first reading. The vote was unanimous with Mayor Pro -Tem Edwards, Councilmembers Fowler, Azzoz, John and Thompson voting for and no one voting no. Motion Passed. 5. Resolution No. 15 -R -35 — Consideration and /or action approving a Resolution authorizing a License Agreement with NIDO Ltd., to allow the City of Schertz Police Department to us the property as a shooting range and weapons training facility. (J. Bierschwale /M. Hansen) 05 -05 -2015 Minutes Page - 4 - I= 6. The following was read into record: I IN 1013 go I 111LINLICIMN9 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A LICENSE AGREEMENT WITH NIDO LTD. A TEXAS LIMITED PARTNERSHIP AND OTHER MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized Police Chief Michael Hansen, ho introduced this item stating the Police Department does not currently have its own facility to conduct weapons training. We are dependent upon the benevolence and' chedule of other agencies. To conduct firearms training and qualifications it currently require's that officers travel to another jurisdiction. ote through 5. City Manager City Secretary Donna Schmoekel who recapped the • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives No further announcements were provided. 05-05-2015 Minutes Page - 5 - 7. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. No items were requested at this time. 8. Requests by Mayor and Councilmembers to City Manager and Staff for information. Mayor Carpenter recognized Councilmember Azzoz who stated that he had discussed with Mr. Kessel the infrastructure of some of our roads such as Schertz Parkway and Elbel Road. Councilmember Azzoz stated that he had heard ' from a resident that was concerned with the condition of some of our roads and he had mentioned Tri County. He stated that the resident contacted the City and complained about some potholes. Councilmember Azzoz stated that he did not know if the City �hacl a plan to fix the roads and if we do, when would this take place? Mayor Carpenter recognized City Manager bhn Kessel who stated Deputy. City Manager John Bierschwale is working with Public Wofks on developing the previous capital list. He stated there are a number of different things included in his comments. Certainly there are various levels, and he knows our crews hav6 seen the pothole issues, especially after a rain and are currently addressing them. Mr: Kessel stated that if there are particular holes, they can call 311 and that information will get to our crews. The larger rehabilitation projects that are more capital projects will need funding either by a GO or CO Bond by City Council action, and as 'part-of the process we have been discussing these through the retreat process and budget process that council has already been involved in and given direction on. Those are the two areas we have to work with on existing streets; either they are repairs we can do right now that are within our means or they are so large and expensive they will take a significant amount of money. In 2006, the city identified,ahout $40 million worth 'of roadways and funded about $20 million of those. That was the last time canticil and the citizens approved a significant amount of mon arid. even then it w half of the known projects. It is important to have a plan and work through those, issues not only for new streets but old streets. Corm, cilmember AZZE z asked if we had a comprehensive program on hand. Mr..Kessel replied that we did. In the retreat format and during the budget process, we have a few mechanirps and the principal one is called the Micro Paver, which was put in place in 2010. W& are currently in the process of updating that program. That then generates a variety of lists;; u list of the worst streets and those that are in good shape but can use upgrading to add a longer life to their use. Roadways are significant issues and if money were unlimited we would say fund them all today. 9. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees 05 -05 -201.5 Minutes Page - 6 - • Recognition of actions by community volunteers • Upcoming City Council agenda items Mayor Carpenter recognized Councilmember Fowler who stated he wanted to give kudos to Sam Willoughby and his crew for assisting a resident with a tree that had fallen. Councilmember Fowler also commented on the new 1103 Storage Facility stating he was impressed with their security and architecture. This is a very good design that fits the future of our city. Mayor Carpenter stated that last week he attended the Bear County Mayors Group meeting and the two main topics of conversation were Ubr and ride sharing and sugar sweetened beverages, and what role government had -in tho e;two areas. He wanted to compliment this council for sticking to nuts and bolts,tepics. We tend to focus on issues that are critical to the success of the aggregate of this community and not get off on to issues that government has no business legislating about. We don't over legislate or under legislate; we keep a very balanced look. Heppreciates that. Adiournment As there was no further business the ATTEST: Donna Schmoekel, was adjourned 05 -05 -201.5 Minutes Page - 7 - M R. Carpenter, Mayor Agenda No. 2 CITY COUNCIL MEMORANDUM City Council Meeting: May 12, 2015 Department: City Attorney Subject: Ordinance No. 15 -M -15 — An ordinance ordering and declaring the 2006, 2008 and 2012 Charter Amendments Adopted Final Reading On May 1.3, 2006, November 4, 2008, and November 6, 2012 . the City of Schertz held elections on the adoption of amendments to the City's Home Rule Charter. On May 16, 2006, November 1.2, 2008, and November 19, 2012, City Council canvassed the votes of the respective elections. Texas Local Government Code Section 9.05 (b) provides that an amendment to a charter does not take effect until the governing body of the municipality enters an order in the records of the municipality declaring that the amendment is adopted. The City Attorney, upon review of the stated ordinances, raised concerns regarding whether the language within the canvassing documents satisfied the requirements of the Texas Local Government Code. The City Attorney has recommended the adoption of the present ordinance as a prophylactic measure to ensure compliance with the law. City Council approved this on first reading at their meeting of May 5, 2015. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve Ordinance No. 15 -M -15 on final reading. ATTACHMENT Ordinance No. 15 -M -15 AN ORDINANCE OF THE CITY OF SCHERTZ, TEXAS, ORDERING AND DECLARING THE 2006, 2008, AND 2012 CHARTER AMENDMENTS ADOPTED. WHEREAS: On May 1.3, 2006, November 4, 2008, and November 6, 2012 . the City of Schertz held elections on the adoption of amendments to the City's Home Rule Charter; and WHEREAS: On May 16, 2006, November 12, 2008, and November 19, 2012, City Council canvassed the votes of said elections; and WHEREAS: Texas Local Government Code Section 9.05 (b) provides that an amendment to a charter does not take effect until the governing body of the municipality enters an order in the records of the municipality declaring that the amendment is adopted; and WHEREAS: pursuant to notice of a public meeting held in compliance with the Texas Open Meetings Act, the City Council of the City of Schertz, Texas, convened into a regular meeting of the City Council on the 13th day of May, 2006, 12th Day of November, 2008, and 19th Day, of November 2012 for the purpose of entering an order into the records of the City and declaring that the amendments to the City Charter are adopted; and WHEREAS: In order to ensure compliance with the requirements of Texas Local Government Code Section 9.05 (b) the City Council desires to adopt the order declaring the previous Charter Amendments adopted. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, THAT: Section 1. Findings. The foregoing recitals are hereby found to be true and correct and are hereby adopted by the City Council and made a part hereof for all purposes as findings of fact. Section 2. Proceedings. That an election was duly called and held on May 1.3, 2006, November 4, 2008, and November 6, 2012 and final votes were canvassed on May 13, 2006, November 1.2, 2008, and November 19, 2012 . on the question of the adoption of amendments to the City of Schertz Home Rule Charter. Section 3. Adoption of Amendments. It is hereby ordered that the following measures are herby declared to be adopted based on the canvassing of the following elections: May 1.3, 2006 Propositions 1 - 34 November 12, 2008 Propositions 1, 2, 3, 5, 8, 9, 10, 11, 12 November 19, 2012 . Propositions 1 -5 Section 4. Severability. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance shall be declared invalid by judgment or decree of any court of competent jurisdiction, such invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs, or sections of this ordinance or Section of the Code which this ordinance is contained and the remainder of this Section of the Code and ordinance shall be enforced as written. PASSED ON FIRST READING, the 5th day of May, 2015. PASSED, APPROVED and ADOPTED ON SECOND READING, the 12th day of May, 2015. Michael R. Carpenter, Mayor Brenda Dennis, City Secretary Approved as to Form: City Attorney's Office Agenda No. 3 CITY COUNCIL MEMORANDUM City Council Meeting: May 12, 2015 Department: Parks and Recreation Subject: Resolution 15 -R- 36- To Approve an Agreement with a Construction Manager at Risk for Preconstruction Phase Services for the Aquatic Facility. BACKGROUND To provide the citizens with a new indoor Aquatics Facility that meets the needs of the growing community and the requirements of the 2010 Bond. An Agreement with Marmon Mok Architects for the design of the Aquatic Facility was approved by City Council on July 8, 2014. Work on the Schematic Design portion of the facility has been now been completed. The project is now at the stage that the expected cost of the proposed project needs to be determined by a qualified Construction Manager before the project design can proceed. SELECTION PROCESS On October 23, 2014 a Request for Qualifications (RFQ) using the two step selection process under Section 2269 et seq. of the Texas Government Code (The Code) for a Construction Manager at Risk (CM @R) was issued by the City. Six responses to this RFQ were received on November 1.9, 2014. These responses were evaluated a selection committee comprised of City employees and members of the Architect's staff. The responding firms were evaluated by the committee and ranked solely on the basis of their qualifications in the first step as required by The Code. The three top ranked firms were then asked to respond to the second step in the selection process which is a Request for Proposals (RFP) outlining their project cost and fees based on the published budget of Eight Million ($8,000,000.00) dollars and to be interviewed by the selection committee on January 7, 201.5. At the conclusion of this process the committee recommended the award of the Preconstruction Phase Services of the Construction Manager at Risk Agreement to Turner Construction Company. Contract negotiations were initiated with Turner Construction Company over the next several weeks and the City was unable to reach an agreement. In accordance with Section 2269 et seq. of the Texas Government Code and on advice of legal counsel the City ceased negotiations and informed Turner Construction Company in writing on April 15, 2015 of the decision. In accordance with Section 2269 et seq. of the Texas Government Code the second ranked respondent was contacted and contract negotiations were begun with Thomas S Byrne, Ltd on April 28, 2015 and concluded on May 5, 2015. Community Benefit The community will benefit by having a nationally ranked and highly qualified construction management firm build the Aquatic Facility. Fiscal Impact Funds for this Contract will be from the 2010 Bond funds for the Aquatic Facility. RECOMMENDATION Approval of Resolution 15 -R -36 ATTACHMENT(S) Resolution No. 15 -R -36 AIA A133- 2009 Standard Form of Agreement Between Owner and Construction Manager as Constructor. RESOLUTION NO. 15 -R -36 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE PRECONSTRUCTION PHASE SERVICES OF THE CONSTRUCTION MANAGER AT RISK AGREEMENT FOR THE NEW INDOOR AQUATIC FACILITY AND ASSOCIATED SUPPORT SYSTEMS AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into an Agreement with Thomas S Byrne, Ltd. as the Construction Manager at Risk for Preconstruction Phase Services for the new indoor Aquatic Facility; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into an Agreement with Thomas S Byrne, Ltd and the Agreement attached hereto as Exhibit A (the "Agreement "). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with Thomas S Byrne, Ltd for the Preconstruction Phase Services in substantially the form set forth on Exhibit A. The total amount payable under this Agreement shall not exceed Fifteen Thousand ($15,000) Dollars. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person . or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this :Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 12th day of May, 2015. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor Brenda Dennis, City Secretary (CITY SEAL) 50234811.1 imall AIA A133 AGREEMENT FOR CONSTRUCTION MANAGER AT RISK AIA Document Al 33 - 2001 Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price MAY rP� AGREEMENT made as of the day f l in th y Lt�rP year26I5 ADDITIONS AND DELETIONS: (In words, indicate day, morph and year) The author of this document has added information needed for its .BETWEEN the Owner: completion. The author may also legal status and "address) have revised the text of the original .:dame, AIA standard form. An Additions and City of Schertz 1400 Schertz Parkway Deletions Report that notes added :Schertz, Texas 781.54 :information as well as revisions to the standard Form text is available from the author and should be and the Construction Manager: reviewed. A vertical line in the left (Name, legal status and address) margin of this document indicates where the author has added Thos. S. Byrne, Ltd. d /b /a Byrne Construction Services 14220 Northbrook Drive necessary Information and where Suite 400 the author has added to or deleted San Antonio, Texas 78232 from the original AIA text. for the following Project: This document has important legal {Name and addressor location) consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Aquatic Facility :Schertz, Texas. - AIA Document A201 T- -2007, General Conditions of the Contract The Architect: for Construction, is adopted in this (Name, legal status and address) - document by reference. Do not use with other genera( conditions unless Marmon Mok One Riverwalk:Place this document is modified. 700 North St. Mary's, Suite 1600 San Antonio, Texas 78205 The Owner's Designated Representative: (Name, address and other information) .facksonA &E Associates,:lNc: ann. Phil Gaudreau 8300 White Stallion Trail McKinney, Texas 75070 pgaudreaur@rjacksonae.com 214.673.7557 The Construction Manager's Designated Representatives (Name, address and other information) Init. .AIA Document A133TM — 2009 (formerly A121 `rmCMc — 2003). Copyright y) 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA" Document is protected by U,S Copyright Lawand Intemational Treaties. Unauthorized reproduction or distribution ofthis AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible undea the law. t This document was produced by AIA software at 16i 00'37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (3BRADA20) The Architect's Designated Representative: (Nmr¢e, address and other inforination) Gregory Houston, AIA Principal Cody McBrearty, Project Manager Marmon Mok The Owner and Construction Manager agree as "follow"s. " ww urn umem w Iss —wue hormeriy A in "' a vic — nuual. �opyngm w -rna i, zuua one euus ny i re unnencan InSlQme or,vrcmceccs Al rig net reserved. Init. WARNING: This "AIA' Document is protected by US. Copyright Law and International Treaties Unauthorized reproduction or distribution of this AIA`" 2 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16 00 37 on 05/05!2015 under Order No. 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (3139ADA20) TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES 3 OWNER'S RESPONSIBILITIES 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES 6 COST OF THE WORK FOR CONSTRUCTION PHASE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES 8 INSURANCE AND BONDS 9 DISPUTE RESOLUTION 10 TERMINATION OR SUSPENSION 11 MISCELLANEOUS PROVISIONS 12 SCOPE OF THE AGREEMENT ARTICLE 1 GENERAL PROVISIONS § 1.1 The Contract Documents The Contract Documents consist of Agreement, Conditions of the Contract (Genera(, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to the execution of this Agreement, other documents listed in this Agreement, and Modifications issued after execution of this Agreement, all of which form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated herein. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, the Contract Documents will also include the documents described in Section 2.2,3 and identified in the Guaranteed Maximum Price Amendment and revisions prepared by the Architect and furnished by the Owner as described in Section 2;2.8. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. If anything in the other Contract: Documents, other than a Modification, is inconsistent with this Agreement, this Agreement shall govern. § 1.2 Relationship of the Parties The Construction Manager accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's skill and judgment in furthering the interests of the Owner; to furnish efficient construction administration, management .services and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner's interests. The Owner agrees to furnish or approve, in atimely manner, information required by the Construction Manager and to make payments to the Construction Manager in accordance with the requirements of the Contract Documents. § 1.3 General Conditions For the Preconstruction Phase,.AIA Document A201T" 2007.:General Conditions of the Contract for Construction, shall apply only as specifically provided in this Agreement. For the Construction Phase, the general conditions of the contract shall be as set forth in A201 -2007, which document is incorporated herein by reference. The term "Contractoe' as used in A201 -2007 shall mean the Construction Manager, Init. AIA Document A1331" —2009 (formerly A121 —CMc — 2003). Copyright C 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING. This AIA' Document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this AIA� 3 Document, or any portion of it, may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the taw; / This document was produced by software at 16:00:37 on 05/05/2015 under Order No. 7931813803 which expires on 06/1512015, and Is not for resale: User Notes: (389ADA20) ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager's Preconstruction Phase responsibilities are set forth in Sections 2.1 and 2.2. The Construction Manager's Construction Phase responsibilities are set forth in Section 2.3. The Owner and Construction Manager may agree, in consultation with the Architect, for the Construction Phase . to commence prior to completion of Preconstruction Phase, in which case, both phases will proceed concurrently. The Construction .Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project. § 2.1 Preconstruction Phase '§ 2.1.1 The Construction Manager shall provide a preliminary evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other. - § 2;1.2 Consultation The Construction Manager shall schedule and conduct meetings with the :Architect and Owner to discuss such matters as procedures, progress, coordination, and scheduling of the Work: The Construction Manager shall advise the Owner and the Architect on proposed site use and improvements, selection of materials, and building systems and equipment. The Construction Manager shall also provide recommendations consistent with the Project :requirements to the Owner and Architect on constructability; availability of materials and labor; time requirements for procurement, installation and construction; and factors related to construction cost including, but not limited to, costs of alternative designs or materials, preliminary budgets, life -cycle data, and possible "cost redactions. - § 2.1.3 During the Preconstruction Phase the Construction Manager shall review the Contract Documents to ascertain whether the components of the mechanical, electrical, and plumbing systems may be constructed without `interference with each other, . or with the structural or architectural components of the Project. In the event conflicts between such systems are discovered, the Construction Manager shall promptly notify the Owner and the Architect in writing. Failure to so notify will result in a waiver of any claims for additional time or compensation by the Construction Manager. Further, any claims by the Construction Manager associated with conflicts of the systems addressed in this section 2.13 during the construction phase are waived if such conflicts could have been discovered through careful examination of the Contract Documents. §2.1.4 When Project requirements in Section 3.1.1 have been sufficiently identified, the Construction Manager shall prepare and periodically update a Project schedule for the Architect's review and the Owner's acceptance. The Construction Manager shall coordinate with the Architect to incorporate the Project Schedule previously developed by the Architect. The Project schedule shall coordinate and integrate: the Construction Managers services, the Architect's services, other Owner consultants' services, and the Owner's responsibilities and identify items that could affect the Project's timely completion. The updated Project schedule shall include the following: submission of the Guaranteed Maximum Price proposal; components of the Work: times of commencement and completion required of each Subcontractor; ordering and delivery of products, including those that must be ordered well in advance of construction; and the occupancy requirements of the Owner. § 2.1.5 Phased Construction The Construction Manager shall provide recommendations with regard to accelerated or fast-track scheduling; procurement, or phased construction. The Construction Manager shall take into consideration cost reductions, cost information, constructability, provisions for temporary facilities and procurement and construction scheduling issues. § 2.1.6 Preliminary Cost Estimates § 2,1,6.1 Based on the preliminary design and other design criteria prepared by the Architect, the Construction Manager shall prepare preliminary estimates of the Cost of the Work or the cost of program requirements using area, volume or similar conceptual estimating techniques for the Architect's review and Owner's approval. If the Architect or Construction Manager suggests alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems. §2.1.61 At the completion of the Schematic Design, Design Development and at 95 percent completion of the Construction Documents, and upon written notice of such phase completion by the Architect to the Construction Manager and the Owner. the Construction Manager shall prepare and update estimates of the Cost of the Work of increasing detail and refinement and allowing for the further development of the design until such time as the Owner Init. .AIA Document A133T — 2009 (formerly A121TmClOc — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA. Document is protected by U.S Copyright Law and international Treaties. Unauthorized reproduction or distribution ofth is AIA"' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent {possible under '. the law. 1 This document was produced by AIA software. at 16:00:37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (389ADA20) and Construction Manager agreeon a Guaranteed Maximum Price for the Work. Such estimates shall be provided for the Architect's review and the Owner's approval. The Construction Manager shall inform the Owner and Architect when estimates of the Cost of tile Work exceed the latest approved Project budget and make recommendations for corrective action to reduce costs and maintain the Project budget. § 2.1.7 Subcontractors and Suppliers The Construction Nlanager shall develop bidders' interest in the Project and may prequalify bidders. Any prequalification or award of subcontracts must conform with section 2.3.2.1 and chapter 2269 of the Texas Government Code. § 2.1.8 The Construction Manager shall prepare; for the Architect's review and the Owner's acceptance, a procurement schedule for items that must be ordered well in advance of construction. The Construction Manager shall expedite and coordinate the ordering and delivery of materials: that must be ordered well in advance of :construction, if the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price, the Owner shall procure the items on tens and conditions acceptable to the Construction Manager. Upon the establishment of the Guaranteed Maximum Price, the Owner shall assign all contracts for these items to the Construction Manager and the Construction Manager shall thereafter accept responsibility for them. § 2.1.9 Extent of Responsibility The Construction Manager shall exercise reasonable care in preparing schedules and estimates. The Construction :Manager, however, does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The Construction Manager is not required to ascertain that the Drawings and Specifications are in accordance applicable laws, . statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Construction Manager shall promptly report to the Architect and Owner any nonconformity discovered by or made known to the Construction Manager as a request for information in such form as the Architect may require. Any failure by Construction Manager to report known deviations or noncompliance will result in a waiver of any associated claims by the Construction Manager and shall require the Construction Manager to indemnify and hold the Owner harmless for any costs associated with the Construction Manager's failure in this regard. - § 2.1.10 Notices and Compliance with Laws The Construction Manager shall comply with applicable caws, statutes, ordinances, codes. rules and regulations, and lawful orders of public authorities applicable to its performance under this Contract, and with equal employment opportunity programs, and other programs as may be required by governmental and quasi governmental authorities for inclusion in the Documents. §2.2 Guaranteed Maximum Price Proposal and Contract Time §2,2.1 When the Construction Drawings and Specifications are ninety-five percent (95%) complete, upon receipt of notice from the Architect so indicating,. the Construction Manager shall prepare a Guaranteed. Maximum Price proposal for the Owners review and acceptance, The Guaranteed Maximum Price in the proposal shall be the som of the Construction Manager's estimate of the Cost of the Work, including contingencies described in Section .2 2,4, and the Construction Manager's Fee. The Guaranteed Maximum Price proposal shall be submitted to the Owner no later than fifteen (15) days after the ninety -five percent (95 %) completion notice. § 2,2.2 To the extent that the Drawings and Specifications are anticipated to require further development by the .Architect, the Construction Manager shall provide in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order. §2.2.3 The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include the following: 1 A list of the Drawings and Specifications, including all Addenda thereto, and the Conditions of the Contract, .2 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal, including assumptions under Section 2.2.2, to supplement tie information provided by the Owner and contained in the Drawings and Specifications; nit ALA Document A133TM —2009 (formerly A121rMCMc — 2003). Copyright O 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. :WARNING' This AIA" Document is protected by U.S Copyright Law and International Tmattes Unauthorized reproduction or distribution of this AIA® 5 Document or any portion of it, may rose It in severe civil and criminal penal ties, and will be prosecuted to the maximum extent possible under the law. J This document was produced by AIA software at 96:00:37 on 05/05/2015 under Order No 7931813003 which expires on 06 /15/2015 and is not for resale. User. Notes: (3B9ADA20) .3 A statement of the proposed Guaranteed Maximum Price, including a statement of the estimated Cost of the Work . organized by trade categories or systems, allowances, contingency, and the Construction .Manager's Fee; ,4 The anticipated date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based; and .i The amount of time available to the Owner to accept the Guaranteed Maximum Price, not less than 60 days, before such time that the Construction Manager may revise proposed pricing. 6 A statement that the proposed Guaranteed Maximum Price is not based in any part on any subcontract or material supply contract which would require the Owner to compensate the Construction Manager on other than a fixed fee basis; and .7 If Owner requests, Construction Manager shall make available for inspection tile documents and information that form the basis of the Guaranteed Maximum Price proposal. § 2.2.4 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum :Price proposal. In the event that the Owner and Architect discover any inconsistencies or inaccuracies in the "information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. §2.25 If the Owner notifies the Construction Manager that the Owner has accepted the Guaranteed Maximum Price proposal in writing before the date specified in the Guaranteed Maximum Price proposal, the Guaranteed Maximum :Price proposal shall be deemed effective without further acceptance from the Construction Manager. Following acceptance of a Guaranteed Maximum Price, the Owner and Construction Manager shall execute the Guaranteed Maximum Price Amendment amending this Agreement, a copy of which the Owner shall provide to the Architect. The Guaranteed Maximum Price Amendment shall set forth the agreed upon. Guaranteed Maximum Price with the information and assumptions upon which it is based. § 2,2.8 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work prior to " the commencement of the Construction Phase, unless the Owner provides prior written authorization for such costs. §2.2.7 The Owner shall authorize the Architect to provide the revisions to the Drawings and Specifications to incorporate the agreed -upon assumptions and clarifications contained in the Guaranteed Maximum Price Amendment The Owner shall promptly furnish those revised Drawings and Specifications to the Construction Manager as they are revised. The Construction Manager shall notify the Owner and Architect of any inconsistencies between the Guaranteed Maximum Price Amendment and the revised Drawings and Specifications. § 2.2.8 The Owner enjoys tax exempt status as a municipality. To enjoy the cost- savings benefits of its tax exempt status, the Owner will provide a Tax Exemption Certificate to the Constriction Manager for use oil the Project. The Construction Manager shall use that certificate to exempt any purchases made for the Work from otherwise applicable taxes. As such, the Construction Manager shall not include in the Guaranteed Maximum Price any sales. consumer, use and similar taxes for the Work provided by the Construction Manager which are exempted because of the OwneCs tax exempt status. Subject to the above terms, the Construction Manager shall pay sales, consumer; use and similar taxes that are legally enacted, whether yet effective, at the time the Guaranteed Maximum Price Amendment is executed. § 2.3 Construction Phase § 2.3.1 General § 2.3.1.1 In all matters of this Agreement, time is of the "essence with respect to performance of the Work § 2.11.2 The date of commencement; as that term is used in the Contract Documents, shall mean the commencement of the Construction :Phase which will be evidenced by :Init. "AIA Document A133Te— 2009 (formerly A121"CMc — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. At rights reserved. :WARNING. This AIA- Document is protected by U.S Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA" fi Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum. extent possible under the law. / This document was produced by AIA software at 16:00:37 on 05/05/2015 under Order No. 7931813803 which expires on b6 115/2015 and is not for resale. User Notes: (3B9ADA20) the Owner's acceptance of the Construction N/tanager's Guaranteed Maximum Price proposal or the Owner's issuance of a Notice to Proceed, whichever occurs earlier, .§ 2.3:13 The Construction Manager shall achieve Substantial Completion of the entire Work not later than the date set out in the Agreement; subject to adjustment of this Contract Time as provided in the Contract Documents. The Construction Manager acknowledges and recognizes that the Owner is entitled to full and beneficial occupancy and use of the completed work following expiration of the Contract Time. The Construction Manager further :acknowledges and agrees that, if the Construction Manager fails to substantially complete the Work within the :Contract Time, or cause Substantial Completion to be delayed beyond the expiration of the Contract Time, the Owner will sustain actual damages as a result of such failure. The exact amount of such damages will be difficult to ascertain. Therefore, the Owner and Construction Manager agree that, if the Construction Manager shall neglect, fail, or refuse to substantially complete the Work within the Contract Time, subject to proper extension granted. by the Owner, theft the Construction Manager agrees to pay the Owner tile sum of [Three Thousand dollars] ($3,000:00) for each and every calendar day in which such Work is not completed, not as penalty, but as liquidated damages, for the damages ( "Liquidated Damages ") that will be suffered by Owner as a result of delay that the Contractor shall have failed to have completed the Workers required herein. §2.3:1.4 Claims for Additional Time. The Construction Manager shall be entitled to an extension ofthe contract tone for delays or disruptions due to Unusually severe weather: in excess ofthat normally experienced at thejob site only as determined . from climatoloywlcal data set forth in this subsection. 'file Construction Manager shall bear the entire economic risk of all weather delays and disruptions, and shall not be entitled to any increase in thr Guaranteed Maximum Price by reason of such delays oh disruptions. Racy days shall not be considered an abnormal or adwi -se weather condition for which an extension of time w ill be granted unless and except in those months during which the actual cumulative number of rainy days within the month exceed the historical average cumulative number of rainy days for said month, provided that the rainfall prevented the execution of major items of work oil normal working days. Aram day is defined as a day when I am fall exceeds one -tenth (I) inch daring a tG erity -tour (24) hour period. The historical number of Weather Days poi' calendar month is as follows, based upon regional weather.data from the National Weather Service 'and/or NOAA' ,usyeraHe Weather Days per Month J Feb. Mar, Am-, May Jun. Jill. Aug, Sept. 1104 ':`,m ..Dec,... a It 4 4 3 4 S 4 3 4 4 4 4 The number of rain days shown in the Rainfall Table for the First and Iasi months ofthis Agreement will be prorated in determining the total number ofrain (lays expected dui ing the period of this Agreement Time extensions may also be granted for any day Following a period (if precipitation during .which muddy conditions exist and prevent performance of major items of work conducted oil hot trial working days, which muddy eondltionsate Subject to confirmation by the Owner. Requests for an extension of time pursuant to this subsection shall be promptly submitted to the Owner. Failure to timely submit a complete notice of claim for delays and extension of time for completion due to abnormal or adverse weather conditions or rainy days pursuant to this subsection shad result in the denial of a request for extra time for performance under the Contract Documents. § 2.3.2 Administration § 2.3.2.1 All portions of the Work, other than minor work, shall be performed by trade contractors, subcontractors; or Init. AIA Document A133TM — 2009 (formerly A121 Tn`CNIc — 2003). Copyright is 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING. In is AIA-" Document is inotected by U.3 Copyright Low and International' Treaties.. Unauthorized reproduction or distribution of this AIA', 7 "Document, or any portion of it. risay result in severe civil and criminal penalties, and withe prosecuted to the maximum extent possible tinder the law.. This document was produced by AIA software at 16 00:37 on 05105/2015 under Order No 7931813803 which expires on 06115/2015 and is not for resale. User Notes: (389ADA20) self performed by the Construction Manager. For each major scope of work, the performing contractor shall be selected using competitive bids or competitive sealed proposals. The Construction Manager shall include specific notices of the following statutory- requirements in the information to bidders: .1 The successful bidder's responsibility to provide workers' compensation insurance in accordance with Texas Labor Code Chapter 406; .2 The successful bidder's responsibility to pay prevailing wages pursuant to Texas Government Code Chapter 2255; and, .3 A notice of the sales tax exemption for the project and the procedure for obtaining any required - exemption verification or certificates, §212.2 The information required with publication in 2.3.2.1 is not exclusive. The Construction Manager may include other information in such notices at its discretion or as may be required by law. - §2.3.2.3 On all portions of the Work for which the Construction Manager does not submit a bid or proposal, the Construction Manager and the Owner shall receive and open all bids or proposals in a manner compliant with chapter 2269 of the Texas Government Code. On any portion of the Work for which the Construction Manager submits a bid or proposal, the Owner shall receive and open the bids or proposals, in accordance with chapter 2269 of the Texas Government Code. After opening the bids or proposals, the Owner may meet with the Construction Manager to evaluate and rank the bidders or offerors. All bids or proposals shall be made public within seven (7) :days after the date of final selection. § 2.3.2.2 If the Guaranteed Maximum Price has been established and when a specific bidder (1) is recommended to the Owner by the Construction Manager, (2) is qualified to perform that portion of the Work, and (3) has submitted a bid that conforms to the requirements of the Contract Documents without reservations or exceptions, but the (Owner requires that another bid be accepted, then the Construction Manager may require that a Change Order be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager and the amount and time requirement of the subcontractor other agreement actually signed with the person or entity designated by the Owner. § 2.3,2,3 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and shall not be awarded on the basis of cost plus afee without the prior consent of the Owner. If the Subcontract, or a change to a Subcontract, is awarded on a cost -plus a fee basis, the Construction Manager shall provide in the Subcontract for the Owner to receive the same audit rights with regard to the Subcontractor as the Owner receives with regard to the Construction Manager in Section 6.11 below. § 2.3.2.4 If the Construction Manager recommends a specific bidder that may be considered a "related party" according to Section 6. 10, then the Construction Manager shall promptly notify the Owner in writing of such :relationship and notify the Owner of the specific nature of the contemplated transaction, according to Section 6.10.2. § "2,3,2.5 The Construction Manager shall schedule and conduct meetings to discuss such matters as procedures, . progress, coordination, scheduling, and status of the Work. The Construction Managerrshall prepare and promptly distribute minutes to the Owner and Architect, §2.3.2.6 Upon the execution of the Guaranteed Maximum Price Amendment; the Construction Manager shall :prepare and submit to the Owner and Architect a. construction schedule for the Work and submittal schedule in accordance with Section 3.10 of A201- -2007. § 2.3.2.7 The Construction Manager shall record the progress of the Project. On a monthly basis, or otherwise as :agreed to by the Owner, the Construction Manager shall submit written progress reports to the Owner and Architect, Showing percentages of completion and other information required by the Owner. The Construction Manager shall also keep, and. make available to the Owner and Architect, a daily log containing a record for each day of weather, portions of the Work in progress, number of workers on site, identification of equipment on site, problems that might affect . progress of the work, accidents, injuries, and other information required by the Owner. Init. AIA Document A1331" - 2009 (formerly A1211MCMc - 2003). Copyright © 1991 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AiA" Document is protected by U.S. Copyright Law and ImornafionaI Treaties, Unauthorized reproduction or distribution of this AIA":! 8 Document, or any portion of it, may remit in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law, j This document was produced by AIA software at 16:00:37 on 05/05/2015 under Order No 7931813803 which Expires on 06/15/2015, and is not for resale. User Notes: (389ADA20) § 2.3.2.8 The Construction Manager shall developer system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect and shall provide this information in its monthly reports to the Owner and Architect, in accordance with Section 2.3.2.7 above. § 2.4 Professional Services Section 3.12.10 of A201 -2007 shall apply to both the Preconstruction and Construction Phases. § 2.5 Hazardous Materials Section 10:3 of A201-2007 shall apply to both the Preconstruction and Construction Phases. ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services Required of the Owner -§ 3.1.1 The Owner shall provide information with reasonable promptness, regarding requirements for and limitations on the Project, including a written program which shall set forth the Owner's objectives, constraints, and criteria, :including schedule,: space requirements and relationships, flexibility and expandability, special equipment, systems, sustainabitity, and site requirements, § 3.1.2 Prior to the execution of the Guaranteed Maximum Price Amendment, the Construction Manager may request in writing: that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill the Owner's obligations under the Contract. § 31.3 The Owner shalt establish and periodically update the Owner's budget for the Project, including (1) the budget for the Cost of the Work as defined in Section 6.1.1, (2) the Owner's other costs, and (3) reasonable contingencies related to all of these costs, If the Owner significantly increases or decreases the Owner's budget for the Cost: of the Work, the Owner shall notify the Construction Manager and Architect. The Owner and the Architect, in consultation with the Construction Manager, shall thereafter agree to a corresponding change in the Project's scope and quality. § 3.1.4 Structural and Environmental Tests, Surveys and Reports. During the Preconstruction Phase, the Owner shall furnish the following information or services with reasonable promptness. The Owner shall also furnish any other :information or services under the Owner's control and relevant to the Construction Manager's performance of the Work with. reasonable promptness after receiving the Construction Manager's written request for such information or services. The Construction Manager shall be entitled to rely on the accuracy of information and services furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. § 31.4.1 The Owner shall furnish tests, inspections and reports required by law and as otherwise agreed to by the parties, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. § 3.1.4.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; designated wetlands;. 'adjacent drainage; rights -of -way; restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site, locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below .grade, including inverts and depths. All the information on the survey shall be referenced to Project benchmark. § 3.1.4.3 The Owner, when such services are requested, shall furnish services of geotechnical engineers, which may :include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of Hazardous materials, seismic evaluation, ground contusion tests and resistivity tests, including necessary operations for anticipating subsoil conditions. with written reports and appropriate recommendations. - § 3.1.4.4 During the Construction Phase, the Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. 'the Owner shall also furnish any other information or services " under the Owner's control and relevant to the Construction Manager's performance of the Work with reasonable promptness after receiving the Construction Manager's written request for such information or services. Init. AIA Document A133Te — 2009 (remarry A121 TMCMC 2003). Copyright © 1991 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA` Document is protected by U3 Copyright taw and International Treaties Unauthorized reproduction of distribution of this AIA' 9 Document, or any portion of it. may result in severe civil aiid criminal penalties, and wdnad prosecuted to the maximum extent possible under the law. This document was produced by AIA software at.16:00:37 on 05/0512015 antler Order No 7931813803 which expires on 06/1512015, and is not for resale. User Notes; (3e9ADA20) §3.1.4.5 During the Construction Phase,. the Owner shall provide temporary water and power to the site for use by the Construction Manager in the performance of the Work. The Construction Manager, however, will be responsible for extending service to the site. § 3.2 Owner's Designated Representative The Owner shall identify a representative authorized to act on behalf of the Owner with respect to the Project. The Owner's representative shall render decisions promptly. The authority of Owner's representative may be restricted or limited because of the Owner's status as a municipality that must act by and through its city council, Except as otherwise provided. in Section 4.2.1 of A201 -2007, the Architect does not have such authority. The term "Owner" :means the Owner or the Owner's authorized representative. § 3.2.1 Legal Requirements, The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests, § 3.3 Architect The Owner has retained an Architect to provide services, duties and responsibilities and services that are necessary for the Preconstruction and Construction Phase services under this Agreement. Upon request by the Construction Manager, the Owner will provide the Construction Manager a copy of the executed agreement between the Owner and the Architect. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.1.1 For the Construction Manager's Preconstruction Phase services, the Owner shall compensate the Construction Manager as follows: § 4.1.2 For the Construction Manager's Preconstruction Phase services described in Sections 2.1 and 2.2: ('Insert amount of or basis for, compensation and include a list of reimbursable cost items, as applicable.) Construction Manager shall be paid a fixed stipulated sum of fifteen thousand ($15,000) dollars for its Preconstruction Phases services on a monthly basis according to the percentage of work complete. (Paragraph Deleted) § 4.2 Payments § 4.2.1 Unless otherwise agreed, payments for services shall be made monthly in proportion to services performed. § 4.2.2 Subject to the timeliness and interest provisions in the Government Code Chapter 2251, payments are due and payable to the Construction Manager 15 days following the receipt of the certification of an application for payment by the Architect. (Paragraph Deleted) ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5,1 For the Construction Manager's performance of the Work as described to Section 2 3, the Owner shall pay the Construction. Manager the Contract Sum in current funds. The Contract Sum is the Cost of the Work as defined in Section 6. 1.1 plus the Construction Manager's Fee. § 5.1.1 The Construction Manager's Fee: (State a Imnp sum, percentage of Cost of the Rork or other provision for determining the Construction Manager's Fee.) 185 °,b of the actual Cost ofthe Work as defined in Article 6 and less any applicable discounts rrhates, refunds and other amounts received from the sale of surplus materials and equipment. Init. AIA Document A13V -- 2009 (formerly A121 ""CMc — 2003). Copyright O 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING. This AIA' Document is protected by U S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this "A[A - 10 Document, or any portion of it, may result in savere civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 16:00:37 on 05/0512015 under Ostler No. 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (369ADA20) § 5.1.2 The method of adjustment of the Construction Manager's Fee for changes in the Work: by written change order subject . to the approval of the Owner § 5.1.3 Limitations, if any, on a Subcontractor's overhead and profit for increases in the cost of its portion of the Work: not to exceed 15% separately, not to exceed 10% for overhead and 5% for profit § 5.1.4 Rental rates for Construction Manager - owned equipment shall not exceed ninety -five percent ( 95 %) of the standard rate paid at the place of the Project. § 5.1.5 Unit prices, if any; (Ident fy and state the unit price; state the quantity limitations, if any, to which the unit price will be applicable.) Item Units and Limitations Price per Unit ($0.00) § 5.2 Guaranteed Maximum Price § 5.2.1 The Construction Manager guarantees that the Contract Sum shall not exceed the Guaranteed Maximund Price set forth in the Guaranteed Maximum Price Amendment, as it is amended from time to time. To the extent tire Cost of the Work: exceeds the Guaranteed Maximum Price, the Construction Manager shall bear such casts in excess " of the Guaranteed Maximum Price without reimbursement or additional compensation from the Owner. (Insert specific provisions if the Construction Vanager is to participate in any savings.) All savings shall be credited to the Owner § 5.2.2 The Guaranteed Maximum Price is subject to additions and deductions by Change Order as provided in the Contract Documents and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents. § 5.3 Changes in the Work § 5.3.1 The Owner may, without invalidating the Contract. order :changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions. The Owner shall issue such changes in writing. The Architect may make minor changes in the Work as provided in Section 7.4 of AIA Document A201 -2007, General Conditions of the Contract for Construction. The Construction Manager shall be entitled to an equitable adjustment in the Contract Time as result of changes in the Work. § 5.3.2 Adjustments to the Guaranteed Maximum Price on account of changes in the Work: subsequent to the execution of the Guaranteed Maximum Price Amendment may be determined by any of the methods listed in Section 7.33 of AIA Document A201 -2007, General Conditions of the Contract for Construction. § 5.3.3 in calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus: a fee). the terms "cost" and "fee" as used in Section 7.3.3.3 ofAIA Document A201-2007 and the term "costs" as used in Section 73;7 of AIA Document A201 -2007 shall have the meanings assigned to them in AIA Document A201 -2007 and shall not be modified by Sections 5.1 and 5.2, Sections 6.1 through 6.7, and Section 6.8 of this Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts subject to the Owner's written approval. §5.3.4In calculating adjustments to the Guaranteed Mi axinlum Price, the terms "cosf' and "costs" as used in the above- referenced provisions of AIA Document A201- -2007 shall mean the Cost of the Work as defined in Sections 6.1 to 6.7 of this Agreement and the term "fee" shall mean the Construction Manager's Fee as defined in Section 5.1 of this Agreement. Inrt. AIA Document A133v" — 2009 (formerly A121 r"CMc — 2003). Copyright © 1991 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING:. This AIA' Document is protected by U.S. Copyright Law and I rite rnationa! I reattes Unauthorized reproduction or distribution of this AIA "' 11 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maxinium extent possible under the law This document was produced by AIA software at 16,00 37 on 05/05/2015 under Order No 7931813003 which expires on 06/15120'5, and is not for resale User Notes: (389ADA20) § 5.3.5 No change in the Work, whether by way of alteration or addition to the Work; shall be the basis of an addition to the Guaranteed Maximum Price or a change in the Contract Time unless and until such alteration or addition has been authorized by a change order executed and issued in accordance with and in strict compliance with the requirements of the Contract Documents. This requirement is of the essence of the Contract Documents. Accordingly, no course of conduct or dealings between the parties. nor express or implied acceptance of alterations or additions to the Work. and no claim that the Owner has been unjustly enriched by any alteration or addition to the Work, whether or not theme is in fact any such unjust enrichment, shall be the basis for any claim to an increase in the Guaranteed Maximum Price or change in the Contract Time. ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed § 6.1,1 The term Cost of the Work shall mean costs necessarily incurred by the Construction Manager in tile proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in Sections 6.1. through 6.7. §6.1.2 Amounts due for self - performed work shall include in The Cost of the Work a lamp -sum cost for work competitively bid and awarded in accordance with the terms of this Agreement. For such scopes; the Construction Manager may not exceed five percent (5 %) overhead and five percent (5%) profit in tile lump sum amount. §6.1;3 For any self - performance of minor work "that is not subject to competitive bidding, section 6.2 will control. § 6.1.2 Where any cost is subject to the Owner's prior approval, the Construction Manager shall obtain this approval prior to incurring the cost. The parties shall endeavor to identify any such costs prior to executing Guaranteed Maximum Price Amendment. § 6.2 Labor Costs § 6.2.1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's prior approval, at off -site workshops. § 6.2.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at " the site with the Owner's prior approval (ff it is intended that the wages or salaries of certain personnel stationed at the Construction 1Vanagto- s principal :w- other offices shall be included in the Cost of the Work identify in Section 11.5. the personnel to be included, whether for all or only part of their "time, and the rates at which their time hill be charged to the Work.) § 6.2.3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the" Work, but only for that portion of their time required for the Work. § 6.2.4 Costs paid or incurred by the Construction Manager for payroll taxes, insurance, and customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections 6.2.1 through 6.2.3, and provided that such costs are directly attributable to work performed on this Project only and provided further that such costs do not exceed forty to percent (42 %) of such wages and salaries.. § 6.2.5 Bonuses, profit sharing, incentive compensation and any other discretionary payments paid to anyone hired by the Construction Manager or paid to any Subcontractor or vendor, with the Owner's prior approval. § 6.3 Subcontract Costs -- (Paragraph Deleted) " §6.3.IPaymentssmade by the Construction Manager to Subcontractors in accordance with the requirements of the 'subcontracts. Init. AIA Document A133" — 2009 (formerly A121 mCM, — 2003). Copyright © 1991 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AdA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAs' 12 Document, or any portion of it, may result in severe moil and criminal penalties and will be prosecuted to the maximum extent possible under the law: t This document was produced by AIA software at 16 00 37 on 05/05/2015 under Order No. 7931813803 which expires on 0611512015, and is not for resale. User Notes: OB9ADA20) § 6.4 Costs of Materials and Equipment Incorporated in the Completed Construction § 6.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. § 6.4.2 Costs of materials described in the preceding Section 6.4A are in excess of those actually installed plus a 10 % overage 'to allow for waste and spoilage. Unused excess materials, if any, shall become the Construction "Manager's property at the completion of the Work and the actual cost of such excess materials as was originally billed to Owner shall be credited to the Owner as a deduction from the Cost of the Work. § 6.5 Costs of Other Materials and Equipment, Temporary Facilities and Related Items § 6,5.1 Costs of transportation, storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are :provided by the Construction Manager at the site and fully consumed in the performance of the Work. Costs of - materials, supplies, temporary facilities, . machinery, equipment and tools that are not fully consumed shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by the Construction Manager shall mean fair .market value. § 6.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Construction Manager at the site and costs of transportation, installation, minor repairs, dismantling and removal. The total rental cost of any Construction Manager -owned item may not exceed the purchase price of any comparable item. Rates of Construction Manager -awned equipment and quantities of equipment shall be subject to the Owner's prior approval. § 6.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal § 6.5.4 Costs of document reproductions, facsimile transmissions and long - distance telephone calls, postage and - parcel . delivery charges, telephone service at the site and reasonable petty cash expenses of the site office. § 6.5.5 That portion of the reasonable expenses of the Construction Manager's supervisory or administrative :personnel incurred while traveling in discharge of duties connected with the Work. § 6.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, subject to the - - Owner's prior approval. § 6.6 Miscellaneous Costs § 6,6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that can be directly attributed to this Contract. (Paragraph Deletetf) §6.6.2 Fees and assessments for the building permit and for other permits; licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. § 6.6,3 Fees of laboratories for tests required by the Contract Documents, except those related to defective or nonconforming Work far which: reimbursement is excluded by Section .13.5.3 of A1A Document A201- -2007 or by other provisions of the Contract Documents, and which do not fall within the scope of Section: 6.73. § 6.6.5 Royalties and license fees paid for the use of particular design, process orproduct required by the Contract Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Contract Documents; and payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements. shall not be included in the calculation of the Construction Manager's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the last sentence of Section 3.17 of.AIA Document A201 -2007 or other provisions .of the Contract Documents, then they shall not be included in the Cost of the Work. . .AIA Document A133— — 2009 (formerly A121 —CMC — 2003)- Copyright ©1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. Imt WARN lyl This ALA Document is protected by U.S Copyright Law and I methadone I Treaties. Unauthorized reproduction or distribution of this AIA" 13 Document or any :portion of it,, may result in severe civil and criminal pena(tles, and will be prosecuted to the maximum extent possible tinder the law. This document was produced by AIA software at 16 00 37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (3B9ADA20) § 6.6.6 Costs for electronic equipment and software, directly related to the Work with the Owner's prior approval. (Paragraph Deleted) § 6.6.4 Legal, mediation and arbitration costs, including attorneys' fees,: other than those arising from disputes between the Owner and Construction Manager, reasonably incurred by the Construction Manager after the execution of this Agreement in the performance of the Work and with the Owner's prior approval, which shall not be unreasonably withheld. (Paragraph Deleted) § 6.7 Other Costs and Emergencies :§ 6.7.1 Other costs incurred in the performance of the Work if, and to the extent, approved in advance in writing by the Owner. , § 6.7.2 Costs incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10.4 of AIA Document A201- -2007. " § 6.7.3 Costs of repairing or correcting damaged or: nonconforming Work executed by the Construction Manager, Subcontractors or suppliers, provided that such damaged or nonconforming Work was not caused by negligence or :failure to fulfill aspecific responsibility of the Construction Manager and only to the extent that the cost of repair or :correction is not recovered by the Construction Manager from insurance, sureties, Subcontractors, suppliers, or " :others. § 6.7.4 The costs described in Sections 6.1 through 6.7 shall be included in the Cost of the Work, notwithstanding any provision of AIA Document A201 -2007 or other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6.8. § 6.8 Costs Not To Be Reimbursed § 6.8.1 The Cost of the Work shall not include the items listed below: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's, principal office or offices other than the site office, except as specifically provided in Section 62, or as may be provided in Article 11; .2 Expenses of the Construction Manager's principal office and offices other than the site office; 3 Overhead and general expenses, except as may be expressly included in Sections 6.1 to 6.7; A The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work; .5 Except as provided in Section 6.7.3 of this Agreement, costs due to the negligence or failure of the Construction Manager, Subcontractors "and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of then may liable to fulfill specific responsibility of the Contract; ,6 Any cost not specifically and expressly described in Sections 6.1 to 6.7; _..,7 Costs, other than costs included in Change Orders approved by the Owner, that would cause the " Guaranteed Maximum Price to be exceeded; and .8 Costs for services incurred during the Preconstruction Phase. .9 Construction Manager's fee of 2.85% on all self- performed scopes of work competitively bid and :awarded to the Construction Manager. § 6.9 Discounts, Rebates and Refunds § 6.9.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) 'before making the payment, the Construction Manager included them in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise,. cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and " amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be obtained. " Init. AIA Document A133o' - 2009 (formerly A121[ ^CMc - 2003). Copyright 0 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIAe Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AtAx 14 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law, t This document was produced by AIA software at 16 00 37 on 05/05/2015 under Order No. 7931813803 which expires on 06/15/2015, and e not for resale. User Notes: (389ADA20) § 6.9,2 Amounts that accrue to the Owner in accordance with the provisions of Section 6.9.1 shall be credited to the Owner as a deduction from the Cost of the Work. § 6.9,3 Costs from the inspection service and /or testing lab that are incurred as aresultof the failure of the Construction Manager to make the Work ready for an inspection or test scheduled by the Construction Manager if notice of cancellation is not provided shall be credited to the Owner as a deduction from flee Cost of the Work. §6:9:4 Costs from the inspection service and /err testing lab that are incurred as a result of the failure of the Work to pass an inspection or test shall be credited to the Owner as a deduction from the Cost of the Work. § 6.10 Related Party Transactions § 6.10.1 For purposes of Section 6.10, the term `related party" shall meaner parent, subsidiary, affiliate or other entity having common ownership or management with the Construction Manager; any entity in which any stockholder in, or management employee of, the Construction Manager owns any interest in excess of ten percent in the aggregate; or any person or entity which has the right to control the business or affairs of the Construction Manager. The term `related party" includes any member of the immediate family of any person identified above. §6.10.2 If any of the costs to be reimbursed arise from a transaction between the Construction Manager and a related parry, the Construction Manager shall notify the Owner of the specific nature of the contemplated transaction, .including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction, then the cost incurred shall be included as a cost to be reimbursed, and the Construction Manager shall procure the Work, equipment, goods or service from the related party, as a Subcontractor, according to the terms of Sections 2.3.2.1, 2.3.2.2 and 2.3.2.3. If the Owner fails to authorize the transaction, the Construction Manager shall procure the Work, equipment, goods or service from some person or entity other than a related party according to the terms of Sections 2.32.1; 2.3.2.2 and 2.3.2.3. § 6.11 Accounting Records The Construction Manager shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial management under this Contract and to substantiate all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's auditors shall, during regular business hours and upon reasonable notice. be afforded access to, and shall be permitted to audit and copy, the Construction Manager's records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor's proposals, purchase orders, vouchers, memoranda and other data relating to this Contract. The Construction Manager shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES § 7.1 Progress Payments § 7.1,1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. §7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day the month, or as follows: § 7.13 The Owner will pay an approved Application for Payment within fifteen (15) days after the date such approved Application for Payment is received by the Owner from the Architect. Not withstanding the foregoing the Owner shall not be required to pay any disputed amounts that the Owner believes were erroneously approved by the Architect. Past due payments and any disputed amounts shall bear interest in accordance with the Texas Prompt Payment Act. Init. AIA Document A133T" - 2009 (formerly A121 T "CMC - 2003). Copyright 0 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING; This AIA" Document is protected by U 8. Copyright Caw and International Treaties. Unauthorized reproduction or distribution of this AIA'` 15 Document, or any portion of it, may result in severe civil and criminal. penalties, and will be prosecuted to the maximum extent possible under the law.. This document was produced by AIA software at 16 00:37 on 05/05 /2013 under Order No 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (3B9ADA20) (Paragraph Deleted) § TIA With each Application for Payment; the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already .made by the Construction Manager on account of The Cost of the Work equal or exceed progress payments already received by the Construction Manager, less that portion of those payments attributable to the Construction Manager's Fee, plus payrolls for the period covered by the present .Application for Payment: § 7.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee ;shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the .Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. Construction Manager shall use AIA Document G702 for Application and Certificate for Payments, and shall use AIA Document G703 for necessary continuation sheets related to AIA Document G702, or shall use such documents in a similar format approved by the Owner. § 7.1.6 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of(1) the .percentage of that portion of the Work which has actually been completed, or (2) the percentage obtained by :dividing (a) the expense that has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. § 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as..follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3.9 of AIA Document A201 2007: ;2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing; 3 Add the Construction Manager's Fee, less retainage of five percent ( 5 %), The Construction Manager's Fee shall be computed upon the Cost of the Work at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, shall be an amount that bears the same ratio to that fixed -sum fee as the Cost of the Work bears to areasonable estimate of the probable Cost of the Work upon its completion; A Subtract retainage of five percent ( 5 %) from that portion of the Work that the Construction Manager self- performs; - .5 Subtract the aggregate of previous payments made by the Owner; .6 Subtract the shortfall, if any, indicated by the Construction Manager in documentation required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's auditors in such documentation; and .7 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201 -2007. § 7.1.8 The Owner and Construction Manager shall agree upon (1) a mutually acceptable procedure for review and approval of payments to Subcontractors and (2) the percentage of retainage held on Subcontracts, and the .Construction Manager: shall execute subcontracts in accordance with those agreements. § 7.1,9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to :suppliers for materials or equipment which have not been delivered and stored at the site. Init. .AIA Document A133TM - 2009 (formerly A121 TMCMC - 2003). Copyright O 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA" DOCmnent is protected by U.$: Copyright Law and International Treaties Unauthorized reproduction or distributed of the AIA' 16 Document; or any portion of it, result In severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. - ! This document was produced by AIA software at 16 00 37 on 05/05/2015 under Order No. 7931813803 which expires on 06/15/2015, and is not for resale. 'User Notes: (389ADA20) § 7.1.10 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, auditor arithmetic verification of the documentation submitted in accordance with Section 7.1.4 or other supporting data; that the Architect has made exhaustive or continuous on -site inspections; or that the Architect has made examinations to ascertain how or for :what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such rexaminations, audits and verifications, if required by the Owner; will be performed by the Owner's auditors acting in the sole interest of the Owner. §7.1.11 In conjunction with any application for payment submitted by the Construction Manager, the Construction .Manager shall comply with the release, lien waiver and other documentation requirements set forth in, but not limited to, AIA Document A201-2007, as amended, §93.3 and §9.10.2. § 7.2 Final Payment § 7.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Construction Manager when .1 the Construction Manager has fully performed the Contract except for the Construction Manager's responsibility to correct Work as provided in Section 12:22 .of AIA Document A201 -2007, and to satisfy other requirements. if any, which extend: beyond final payment; .2 the Construction Manager has submitted a final accounting for the Cost of the Work and a final Application for Payment; and .3 a final Certificate for Payment has been issued by the Architect. The Owner's final payment to the Construction Manager shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: § 7.2.2 The Owner's auditors will review and report in writing on the Construction: Manager's final accounting within 30 lays after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's auditors report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's auditors, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager, or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of the AIA Document A201 -2007. The time periods stated in this Section supersede those stated in Section 94.1 of the AIA Document A201 2007. The Architect is not responsible for verifying the accuracy of the Construction Manager's final accounting. § 7.2.3 If the Owner's auditors report the Cost of the Work as' substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to request mediation of the disputed amount without seeking an initial decision pursuant to Section 15.2 of A201- 2007. A request for mediation shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to request mediation within this 30 -day period shall result in the substantiated amount reported by the Owner's auditors becoming binding on the Construction Manager. Pending afinal resolution of the disputed: amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. - §7.2.4If, subsequent to final payment and at the Owner's request, the Construction Manager incurs .costs described in Section 6.1.1 and not excluded by Section 6.8 to correct defective or: nonconforming Work, the Owner shall reimburse the Construction Manager such costs and the Construction Manager's Fee applicable thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings as provided in Section 5.2.1, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Construction Manager. § 7,2,5 The Contract shall not have been fully performed until all Work required by the Construction Documents Init. AIA Document A133m - 2009 (formerly A121 T.CMC - 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING This AIA'T Document is protected try U.3 Copyright Law and Imarnational Treaties. Unauthorized reproduction or distribution of this AIA 17 :Document, or any portion of it may result in severe civil and criminal penalties and will be prosecuted tothe maximum extent possible under the law. j This document was produced by Al software at 16:00:37 on 05/05/2015 under Order No. 7931813903 which expires on 05 /15/2015 and is not for resale: User Notes: (38)ADA20) has been performed and the Construction Manager provides the following to the Owner: .1 record or as -built drawings executed or complete in both hard -copy and .pdf formats: ,2 executed or complete certificates of documents evidencing warranties and owner- operators manuals; ,3 all documents evidencing required testing, inspection, verification and other engineering or consulting services required under the construction contract; .4 insuring agreements and bonds covering all periods of construction and any subsequent periods required under the contract: and .5 one copy of each item in this section in electronic format. ARTICLE 8 INSURANCE AND BONDS For all phases of the Project, the Construction Manager and the Owner shall purchase and maintain insurance, and the Construction Manager shall provide bonds asset forth in Article I I of AIA Document A201 -2007. (Paragraph Deleted) (Table Deleted) ARTICLE 9 DISPUTE RESOLUTION § 9.1 Any Claim between the Owner and Construction Manager shall be resolved in accordance with the provisions i set forth in this Article 9 and Article 15 of A201 -2007. However, for Claims arising from or relating to the Construction Manager'sPreconstruction Phase services, no decision by the Initial Decision Maker shall be required as a condition precedent to mediation or binding dispute resolution, and Section 9.3 of this Agreement shall not apply. §9.2 For any Claim subject to, but not resolved by mediation pursuant to Section 15.3 of AIA Document A201- 2007, the method of binding dispute resolution shall be as follows: (Paragraph Deleted) [ ] Arbitration pursuant to Section 15.4 of AIA Document A201-2007 [ X ] Litigation in a court of competent, jurisdiction in Guadalupe County. rexas. [ .] Other: (Specihjt) § 9.3 Initial Decision Maker The Architect will serve as the Initial Decision Maker pursuant to Section 15.2 of AIA Document A201 2007 for Claims arising from or relating to the Construction Manager's Construction Phase services. :I (Paragraph Deleted) ARTICLE 10 TERMINATION OR SUSPENSION §10.1 Termination Prior to Establishment of the Guaranteed Maximum Price § 10.1.1. Prior to the execution of the Guaranteed Maximum Price Amendment, the Owner may terminate this Agreement upon not less than seven days' written notice to the Construction Manager for the Owners convenience and without cause. AIA Document A1331u - 2009 (formerly A121 T "Clue - 2003). Copyright © 1991 2003 and 2009 by The American Institute of Architects. All rights reserved. snit _ WARNING This AIA'' Document is protected by U.& Copyright Law and Intern alone I Treaties Unauthorized reproduction or distribution of this AIA8 18 " Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law, This document was produced by AIA software at 16:00:37 on 05/0512015 under Order No. 7931813803 which expires on 06/1512015, and is not for resale. User Notes: (389ADA20) § 10.1.2 1n the event of termination of this Agreement pursuant to Section 10.1.1, the Construction Manager shall be compensated for Preconstruction Phase services performed in accordance with the terms contained in this Agreement. § 101.3 If the Owner terminates the Contract pursuant to Section 10. 1.1 after the commencement of the Construction .Phase . but prior to the execution of the Guaranteed Maximum Price Amendment, the Owner shall pay to the 'Construction Manager an amount . calculated as follows, which amount shall be in addition to any compensation paid to the Construction Manager under Section 10.1.2: A Take the Cost of the Work incurred by the Construction Manager to the date of termination; 3 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1; and .3 Subtract the aggregate of previous payments made by the Owner for Construction Phase services. :(Paragraph Deleted) § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price § 10.2.1. Following execution by both parties of the Guaranteed Maximum Price Amendment, the Owner may terminate this agreement, with or without cause, at any time. In the event such termination is for the convenience of the Owner; the Construction Manager shall be compensated for reasonable costs incurred prior to notice of termination, profits on only that portion of the work actually performed prior to termination, and reasonable demobilization costs. § 103.2 Following execution by both parties of the Guaranteed Maximum: Price Amendment, if the Project work is stopped for aperiod of ninety days through no act or fault of the Construction Manager, then the Construction Manager may; upon ten additional days written notice to the Owner, terminate this agreement and recover from the Owner (Paragraph Deleted) payment for all work actually performed, for any loss sustained upon any materials, equipment, tools, equipment, and machinery,: and profits on only that portion of the work actually performed prior to termination. If the cause of the work stoppage is removed prior to the end of the ten day notice period, the Construction Manager may not terminate this agreement. § 10.2.3 The Owner or the Construction Manager may terminate this agreement for cause as provided in Article 14 of the A201 -2007 Documents. § 10.3 Suspension The Work may be suspended by the Owner as provided in Article 14 of MA Document A201-2007. In such case. the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 143.2 of AIA Document A201-2007, except that the term "profit" shall be understood to mean the Construction Manager's Fee as :described in Sections 5.1 and 53".5 of this Agreement. ARTICLE 11 MISCELLANEOUS PROVISIONS ;§ 11,1 Terms in this Agreement shall have the same meaning as those in A201 -2007. § 11.2 Ownership and Use of Documents Section 1.5 of A201 -2007 shall apply to both the Preconstruction and Construction Phases. § 11.3 Governing Law Section 13.1 of A201-2007 shall apply to both the Preconstruction and Construction Phases. § 11.4 Assignment The Owner and Construction Manager, respectively, bind themselves, their agents. successors. assigns and legal representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement without the written consent of the other. If either party attempts to make such an assignment without such consent, that parry shall nevertheless remain legally responsible for all obligations under the Contract. lnit AIA Document A1331"' - 2009 (formerly A121 TeCMc - 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING. This AIA "> Document is protected by U.S. Copyright Law and International Treaties; Unauthorized reproduction or distribution of this AIA' 1 g Document, or any portion of it. may result In severe civil abe Ulmhlal penalties; and will be, prosecuted to the maximum extent possible under the law. / This document was produced by AIA software at 16:00:37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015r and is not for resale. User Notes: (3B9ADA20) (Paragraph Deleted) ARTICLE 12 SCOPE OF THE AGREEMENT § 12.1 This Agreement represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior . negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Construction tYianager. § 12.2 The following documents comprise the Agreement: .1 AIA Document A133- 2009, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price .2 AIA Document A201 -2007. General Conditions of the Contract for Construction ....(Paragraph Deleted) (Paragraph Deleted) .3 Other documents; (List other documents, h' any forming part of the Agreement.) This Agreement is entered into as of the day and year first written above The City of Schertz Thos. S. Byrne, Lt /a Byrne Construction Services OWNER (Signature) CONS A` AGEIi(Signature) ony Preskied - 5oilhkxac T.S. Byrne MMMMAK W, avow PAW .John Kessel, City Manager By. (Printed name and title) Init. 'AIA Document A133— - 2009 (formerly A 121 T "CMC - 2003). Copyright 0 1991 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIAx Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA`r 20 .'.Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. y This document was produced by AIA software at 16 00 37 on 05/05/2015 under Order No 7931613003 which expires on 06/15/2015 and is not for resale. User Notes: (389ADA20) Additions and Deletions Report for AIA ° Document A 133 "d — 2009 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text_ .Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any :part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 16:00:37 on 05/05/2015. PAGE AGREEMENT made as of the ! day of AjjdL in the year 2015 City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Thos. S. Byrne, Ltd. d /b /a Bvrne Construction Services 14220 Northbrook Drive Suite 400 San Antonio, Texas 78232 Aquatic Facilho, Schertz, Texas Marmon Mok One RiverwalkPlace 700 North St. Mary's, Suite 1600 San Antonio. Texas 78205 Jackson A &E Associates, INe. and. Phil Gaudreau 8300 White Stallion Trail McKinney, Texas 75070 p¢audreau(aiacksonac.com 214.673.7557 PAGE Greeory Houston. AIA Principal Cody McBrear y, Proiect Manaeer Marmon Mok Additions and Deletions Report for AIA Document A133T'^ —2009 (formerly A121 TAICNIC —2003). Copyright O 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: Iris AIA" Document is protected. by U.S. Copyright law and Intern ationaI Treaties. Unauthorized 1 reproduction or distribution triads AlAe Document, or any portion of it, may result in severe civil and sumps penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16`00 37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (389ADA20) PAGE TABLE OF ARTICLES The Contract Documents consist of this- Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to the execution of this Agreement, other documents .listed in this Agreement,. and Modifications issued after execution of this Agreement, all of which form the Contract and are as fully pail of the Contract as if attached to this Agreement or repeated herein. Upon the Owner's .acceptance of the Construction Manager's Guaranteed Maximum Price proposal, the Contract Documents will also include the documents described in Section 2:23 and identified in the Guaranteed Maximum Price Amendment and 'revisions prepared by the Architect and furnished by the Owner as described in Section 2.2:5. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. If anything in the other Contract Documents, other than a Modification, is inconsistent with this Agreement, this Agreement shall govern. PAGE 4 § 2.1.3 Durindtire Preconstruction Phase the Construction Manager shall review the Contract Documents to ascertain whether the components of the mechanical electrical and plumbing systems may be constructed without Construction Manager Further, anv claims by the Construction Manager associated with conflicts of the systems addressed in this section 2.1.3 during the construction phase are waived if such conflicts could have been discovered throuah careful examination of the Contract Documents 52.1.4 When Project requirements in Section 3.:1.1 have been sufficiently identified, the: Construction Manager shall prepare and periodically update Project schedule for the Architect's review and the Owner's acceptance. The Construction Manager shall ebtain the ,.,. approval r_ _ tile P..14iei, ,.c ti, PFE;eet i eerie relating t8 we °puff -• aRee offl4e iaekite^ s. coordinate with the Architect to incorporate the Project Schedule previously developed by the Architect. The Project schedule shall coordinate and integrate the Construction Manager's services, the Architect's services, other Owner consultants' services, and the Owner's responsibilities and identify items that could affect the Project's timely completion. The updated Project schedule shall include the following submission of the Guaranteed Maximum Price proposal components of the Work; times of commencement and completion required of each Subcontractor; ordering and delivery of products, including those that must be ordered well in advance of construction; and the occupancy requirements of the Owner. §1a 2.1:5 Phased Construction § 2:4:6 -2.1.6 Preliminary Cost Estimates § 2 1 5 1- 2.1_6.1 Based onthe preliminary design and other design criteria prepared by the Architect, the Construction Manager shall prepare preliminary estimates of the Cost of the Work or the cost of program requirement's using area, volume or similar conceptual estimating techniques for the Architect's review and Owner's approval. If the Additions and Deletions Report for AIA Document A133T" - 2009 (formerly A121''"Wc - 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is madded by U.S. Copyright Law and International Treaties Unauthorized 2 coproduction or distribution of this AIA" Document, or any portion of it, may result in severe civil and criminal penalties and will be prosecuted to the maximum: extent possible under the law, This document was produced by AIA software at 16'00:37 on 05/05/2015 under Order No 7931813803 which expires on 06/1512015, and is not for resale.. User Notes: (389ADA20) Architect or Construction Manager suggests alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems. PAGE 5 Manager and the Owner, the Construction Manager shall prepare and update estimates of the Cost of the Work of .increasing detail and refinement and allowing for the further development of the design until such time as the Owner and Construction Manager agree on a Guaranteed Maximum Price for the Work. Such estimates shall be provided for the Architect's review and the Owner's approval. The Construction Manager shall inform the Owner and .Architect when estimates of the Cost of the Work exceed the latest approved Project budget and make recommendations for corrective eet-ien action to reduce costs and maintain the Projectbudeet. § 11-4-2.1.7 Subcontractors and Suppliers The Construction Manager shall develop bidders' interest in the ;?reject:- 1?roiect and may pregtiahfy bidders: Any prequalification or award of subcontracts must conform with section 2.3.2.1 and chapter 2269 of the Texas Government Code. § 24-4-2.1.8 The Construction Manager shall prepare, for the Architect's review and the Owner's acceptance, a procurement schedule for items that must be ordered well in advance of construction. The Construction Manager shall expedite and coordinate the ordering and delivery of materials that must be ordered well in advance of construction.. If the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price, the Owner shall procure the items on terms and conditions acceptable to the Construction Manager. Upon the establishment of the Guaranteed Maximum Price, the Owner shall assign all contracts for these items to the Construction Manager and the Construction Manager shall thereafter accept responsibility for them. " §'2a -E -2.1.9 Extent of Responsibility 'the Construction Manager shall exercise reasonable care in preparing schedules and estimates. The Construction Manager, however, does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed. Maximum Price. The Construction Nlanager is not required to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful. " orders of public authorities, but the Construction Manager shall promptly report to the Architect and Owner any nonconformity discovered by or made known to the Construction Manager as request for information in such form as the Architect may require. Any failure by Construction Manager to report known deviations or noncompliance will result in a waiver of dory associated claims bv the Construction Manager and shall require the " Construction Manaeer to indemnifv and hold the Owner harmless for are costs associated with the Construction Manager's failure in this rem § 2a-9- 2.1_10 Notices and Compliance with Laws Additions and Deletions Report for AIA Document A1331" - 2009 (formerly A121 * "CMe - 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved WARNING This ALAI Document is protected by U.S Copyright Law and international Treaties. Unauthorized 3 reproduction or distribution of this AIA1`1 Document, or any portion of it, may result In severe eiviI and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by Al software at 16:00 37 on 05/0512015 under Order No 7931813803 which expires on 06/15/2015 and is not for resale. User Notes: (3e9ADA20) §2.2:1 Manages- n, in a , ..:t,, Aae- Aireiiitteet,When the Construction Drawings and Specifications are ninety-five percent (95 %) u�pon receipt of notice from the Architect so:indicatingythe Construction Manager shall prepare a Guaranteed Maximum Price proposal for the Owner's review and acceptance. The Guaranteed Maximum Price in the proposal shall be the :sum of the. Construction. Manager's estimate ofihe Cost of the .Work, including contingencies described in Section 2.2:4, and the Construction Manager's Fee. -The Guaranteed Maximum Price proposal shall be submitted to the Owner no later thin fifteen {15) days after the ninety-five percent (95%) cotnplction notice.. PAGE 6 .g A date by ,. hi k 444 r,., niiF must .,,.eept tt,„ c .;ant.,..d 114godcr ». Piriee -The amount of time available to the Owner to accept the Guaranteed Maximum Price not less than 60 days before such time that the Construction Manager may revise proposed pricing. .6 A statement that the .proposed Guaranteed Maximum Price is not based in anv part on any subcontract or material supph' contract which would require the Owner to compensate the Construction Manager on other than a fixed fee basis: and MgnageF shall ineluie its earitingerbey for the Construction f b 9edeF.7 If Owner requests, Construction Manager shall make available for inspection the documents and information that form the basis of the Guaranteed Maximum Price proposal. §'24.&2,2.4 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal In the event that the Owner and Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. § 24,,6 -2.2,5 If the Owner notifies the Construction Manager that the Owner has accepted the Guaranteed Maximum Price proposal in writing before the date specified in the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price proposal shall be deemed effective without further acceptance from the Construction Manager. Following acceptance of a Guaranteed Maximum Price, the Owner and Construction Manager shall execute the Guaranteed Maximum Price Amendment amending this Agreement, a copy of which the Owner shall provide to the Architect. The Guaranteed Maximum Price Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and assumptions upon which it is based. § 2 2 7 9.2.6 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work ;prior to the commencement of the Construction Phase, unless the Owner provides prior written authorization for such costs. Additions and Deletions Report for AIA Document A133T' — 2009 (formerly A121'"CMc — 2003). Copyright© 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This .AIA- ,Document is protected by 8S. Copyright taw and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:00:37 on'0 510 5/2 01 5 under Order No 7931813803 which expires on 06115/2015, and is not for resale. User Notes: (389ADA20) § 272-.4-2.2.7 The Owner shall authorize the Architect to provide the revisions to the Drawings and Specifications to incorporate the agreed -upon assumptions and clarifications contained in the Guaranteed Maximum Price Amendment. The Owner shall promptly furnish those revised Drawings and Specifications to the Construction Manager as they are revised. The Construction Manager shalt notify the Owner and Architect of any inconsistencies between the Guaranteed Maximum Price Amendment and the revised Drawings and Specifications. in the Guaranteed Max Construction Manager executed. consumer, use and similar taxes for the Work provided by the effective, at the time the Guaranteed Maximum Price Amendment is § 2.3.1.1 Pap puFpases ef Seetien 9 1,2 e f v 201 2007 tl,ie In all matters of this Agreement timers of the essence with respect to performance: of the Work. § 2.3:1:2 The date of commencement as that term is used in the Contract Documents shall mean the commencement of the Construction Phase which will be evidenced by PAGE 7 ; 7 z e o The 08 l eiiiel. Phase 514 all the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal or the Owner's issuance of a Notice to Proceed, whichever occurs earlier. § 2 3 .2- 4dR;!R: ;g,@g9 ^2:3:1.3 The Construction Manager shall achieve Substantial Completion of the entire Work not later than the date set out in the Agreement, subject to adjustment of this Contract Time as provided in the Contract Documents. ,04h flip, C-,tfwqtraeitien Managef. The The Construction Manager acknowledges and recognizes that the Owner is Additions and Deletions Report for AM Document A1331m - 2009 (formerly A1217^'CMc -2003). Copyright (D 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA°' Document: is :protected by U.S. copyright: Law and International Treaties Unauthorized. 5 reproduction or distribution of this AIA'a: Document, or any portion of it, may result in severe o vil and criminal penalties and will he prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:00:37 on 05/05/2015 under Order NO 7931813803 which expires on 06/15/2015 and is not for resale. User Notes: (3B9ADA20) entitled to full and beneficial occupancv and use of the completed work following expiration of the Contract Time, Construction Manager shall neglect, fail. or refuse to stibstantiallv complete the Work within the Contract Time, subiect to proper extension inented by the Owner, then the Construction ManaTer agrees to pay the Owner the sum of [Three Thousand dollars] ($3;000.00) for each and everVcalendar day in which such Work is not completed, not as penalty but as liquidated damages, for the damages ( "Liquidated Damages ") that will be suffered by Owner as a result of delay that the Contractor shall have failed to have completed the Work as required herein. x2:3.1.4 Claims for Additional Time. CrTtt±;trtts#iou- +4ktr3a ae- iuNiez+- 'ti4aQet= T4(: ^i• « ^.'-a^ Erafrretat's -The Constructionlfylanagel�shal] be entitled to an extension of the contract time-fur :deli I disruptions dreg to unusually severe____ weather in excess o the( norxnaf(v ex crp ieneed at the_jah s�tc oniti:a5 determined from ulimatolo <tUal data set Forth in Ink uihcevfnn The ('nnctrnnfinn Ma11211er c1121I hearahe entire ecmininso risk oFAII xkr,21hor dclays nod Dave Der calendar monthis as follows.-based-upon regional weather data from the National Weather Service and/ /or NOA:A: Average Weather Day s 174r 1!Ioti h: .t Feb. Mar. Apr, May. bun. JUL , Aku <a.. Seem. Octet. Nov. Dee, a R 4 4 3 4 5. _ 1 4 4 _,. 4 _. 4 _ Additions and Deletions Report for AIA Document A133T" - 2009 (formerly A1217 "CMc - 2003). Copyright O 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING This AIAI Document is protected by U.S Copyright Law and International Treaties:. Unauthorized 6 reproduction or distribution of this AAA" Document, or any portion of it, .may . result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:00:37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: c B9ADA20) Coll .Crmatioll by the.Owmer. and A ego Stippliefs a. Riigte: ah w . etit ta..: ed,,..peii':,n. for file SA16 FIE Requests for an extension of HREI time pursuant to this subsection shall be promptly submitted to the Owner. Failure to timely submit a complete notice of claim for delays and extension of time for completion due to abnormal or adverse weather conditions or rainy days pursuant to this subsection shall result in the denial of a request for extra time for performance under the Contract Documents. § 2.3.2 Administration PAGE ^u^" ElplivEiF „ ga li bidg e A 2.3.2.1 All portions of the Work. other than minor work shall be performed by trade I The successful bidder's responsibility to provide workers' compensation insurance in accordance with Texas Labor Code Chapter 406: ,2 The succe"s"sful bidder's responsibility to Pay prevailing wages pursuant to Texas Government Code Chapter 2258; and he fethiteet. 3 A notice of the sales tax exemption for the project and the procedure for obtaining anv required exemption verification or certificates. &212.2 The information required with publication in 2.3.2.1 is not exclusive. The Construction ManaSer may include other information in such notices at its discretion or as may be required by law. Additions and Deletions Report for AIA Document A133" -2009 (formerly A121' "C Me -2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA1 Document is protected by U.S.. Copyright Law and promotional Treaties. Unauthorized 7 reproduction or distribution of this AIA`I Document, or any portion of it, may insult in savarx civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16f00.37 on 0 510 512 01 5 under Order No 7931813803 which Expires on 0611512015, and is not for resale. .User Notes: (389ADA20) Pvuip,i, shall t4ign dptpFmine, m i0i the adN,iee a44he iq s4anageF slid e ' whielt bids will be Managef has reasomalb e objeetion &2,3.2.3 On all portions of the Work for which the Construction Manaeer does not submit bid or proposal, the Construction Manaeer and the Owner shall receive and open all bids or proposals in a :manner compliant with chapter 2269 of the Texas Government Code. On any portion of the Work for which the .Construction Manager submits a bid or proposal, the Owner shall receive and open the bids or proposals, in accordance with chapter 2269 of the Texas Government Code. After opening the bids or proposals. the Owner may meet with the Construction Manaeer to evaluate and rank the bidders or offerors. All bids or proposals shall be made public within seven (7) days after the date of final selection. § 2.3.2.3 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. If the StibeefuFfeet Subcontract or a change to a Subcontract, is awarded on a cost -plus a fee basis; the Construction Manager shall provide in the Subcontract for the Owner to receive the same audit rights with regard to the Subcontractor as the Owner receives with regard to the Construction Manager in Section 6.11 below. PAGE 9 § 3.1.2 Prior to the execution of the Guaranteed Maximum Price Amendment, the Construction Manager may request in writing that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill the Owner's obligations under the Contract.,,,p° gef may 9nl� Fzqu:.st sueh evidence t eefleeFn p D the ()�Rep's abilitt, te Make Payment �Isetq due. The Owner shall Aiffligh st eh s' ideflee as A elialige. J PAGE 10 §3=1.4.5 During the Construction Phase, the Owner shall provide temporary water and power to the site for use by the Construction Manager in the performance of the Work. The Construction. Manaeer, however, will be responsible for extending service to the site. The Owner shall identify a representative authorized to act on behalf of the Owner with respect to the Project. The Owner's representative shall render decisions «-8+°°t ° __d ° —•'°` H.r,.-..,,.t;8.. °— °'' * ^ ^' ^^ as t^ • ^id ble da.., the �' ,... Aar.,_l,� -ef c- cmtw,, r,. ssIFu nanage. �rca °�:.��- a��y�;.: ,�ee� rnaia:>�.a�.,�� .promptly. The authority of Owner's representative may be restricted or limited' because of the Owner's status as a municipality that must act by and through its city council. Except as otherwise provided in Section 4.2.1 of A201 -2007, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative. The Owner Sh all rota in has retained an Architect to provide services, duties and responsibilities as -dam qPFi'+^", in -A A la Bectiffism Al-0 ^-Ter a007 ct„ndaird FoRn of AgFeai ent Between Owri and,z.ehiteet isel d;ng any additional services requested bj the are necessary for the Precon"struction and Construction Phase services under this Agreement. 4:;elrUpon request by the Construction Manager: the Owner will provide the Construction Manager a copy of the executed agreement between the Owner and the A lzshiieet and fai) f „he+ mRdir4iiations to the 5 ..Architect.. Additions and Deletions Report for AIA Document A133--2009 (formerly A121—CMc -2003). Copyright ©9991, 2003 and 2009 by The American Institute of Architects. All rights reserved. UUARNING: This AIA " Document is protected by U.S Copyright Law and international. Treaties. Unauthorized 8 reproduction or distribution of this AW Document, or any portion of it. may result in severe civil and crnnlmal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:00 37 on 05/05/2015 under Order No 7931813603 which expires on 06/15 /2015 and is not for resale. User Notes: (389ADA20) Construction Manager shall be paid a fixed stipulated sum of fifteen thousand ($15.000) dollars for its Preconstruction Phases services on a monthlv basis according to the percentage of work . complete. timeliness and interest provisions in the Government Code Chapter 2251, payments are due and pavable to the Construction Manager 15 days following the receipt of the certification of an application for payment by the Architect. fi...,,.,r ., ,.r,_..,.,i✓ �r iiiii ., ,., a. „ PAGE 11 by written change order subject to the approval of the Owner not to exceed 15% separately, not to exceed 10% for overhead and 5% for profit § 5.1,4 Rental; rates for Construction Manager -owned equipment shall not exceed ninety -five percent ( 95 - %) of the standard rate paid at the place of the Project. -- Additions and Deletions Report for AIA Document A133— — 2009 (formerly A121'mCMc — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects_ All rights reserved. WARNING . This Alw` Document is protected by U.S. Copyright law and International Treaties Unauthorized 9 .reproduction or distribution of this AIA, Document,: or any portion of it, may result in severe civil and criminal penalties and will he prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:00.37 on 05/05/2015 under Order No. 7931813803 which 'expires on 06/15/2015 and is not for resale. User Notes: (3B9ADA20) § 5.2.1 The Construction Manager guarantees that the Conn-act Sum shall not exceed the Guaranteed Maximum .Price set forth in the Guaranteed Maximum Price Amendment, as it is amended from time to time. To the extent the :Cost of the Work exceeds the Guaranteed -,Maximum Price, the Construction Manager shall bear such costs in excess of the Guaranteed Maximum Price without reimbursement or additional compensation from the Owner. Alt savings shall be credited to the OvouU § 5,3.3 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terns "cost" and "fee" as used in Section 7.3.3.3 of AIA: Document A201-2007 and the term "costs" as used in Section 7.3:7 of AIA Document A201 -2007 shall have the meanings assigned to them in AIA Document A201 -2007 and shall not be modified by Sections 5.1 and 5.2, Sections 6.1 through 6.7, and Section 6.8 of this Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a - fee shall be calculated in accordance with the terms of those subeent=ase== subcontracts subject to the Owner's written approval. PAGE 12 § 5.3.5 bb b. Nilatiagef's original , and the d x4aximuill D r. ,.hall he st a _diHbl No change in the Work, whether by wav of alteration or addition to the Work, shall be the basis of an addition to the Guaranteed Maximum Price or a charl in the Contract Time unless and until such alteration or addition has been authorized by a chanee order executed and issued in accordance with and in strict compliance with the requirements of the Conti-act Documents This requirement is ofthe essence of the Contract Documents Accordinglv, no course of conduct or dealings between the patties, nor express or implied acceptance of alterations or additions to the Work and no claim that the Owner has been mliustly enriched by anv alteration or addition to the Work, whether or not there is in fact any such uniust enrichment shall be the basis for any claim to an increase in the Guaranteed Maximum Price or change in the Contract Time. amount. 0.1.3 for anv self - performance of minor work that is not subject to competitive bidding. section 6.2 will control 6.2.4 Costs paid or incurred by the Construction Manager for payroll taxes,.. insurance, and b _. . b customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections 6.2.1 through 6.2.3.6.2.3. and Additions and Deletions Report . for AIA Document A133Ts - 2009 (formerly A121 wGMc - 2003). Copyright © 1991, 2003 and 2009 by The American .Institute of Architects. All rights reserved. WARNING: This AIA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 10 reproduction or distribution of this AIA® Document, or any portion of it,.may result in severe civil and criminal penalties; and will be prosecuted to the maxilmmn extent possible under the law.. This document was produced by AIA software at 16'00[37 on 05/0572015 under Order No. 7931813803 which 'expires on 0611512015, and is not for resale: User Notes: (3B9ADA20) provided that such costs are directly attributable to work performed on this Project only and provided further that such costs do not exceed forty -to percent (42 %) of such wages and salaries.. .46.3.1 Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. PAGE 13 §$:42 Costs of materials described in the preceding Section 6.4.1 are in excess of those actually installed lU is a 10% overage o allow for ^^^^ f*lii ^waste and spoilage. Unused excess materials, if any, shall become the Qwn Construction Manager's property at the completion of the Work eF, 4 the Oia,i4 g-'s option sl all be seld by the Genst. etio , ,,r....ager n n5 tunaunts feali,ed f+Rm queh gales and the actual cost of such excess materials as was ori>sinally billed to Owner shall be credited to the Owner as a deduction from the Cost of the Work. § 6.6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that can be directly attributed to this Contract § 6.6.2 Sales, use of sin4ilaF lased imposed by a a renst....,.ta,.., x r....ageir is liable § 6.6-.3 -6.6.2 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. §4. 4.6.6.3 Fees of laboratories for tests required by the Contract Documents, except hose related to defective or nonconforming Work for which reimbursement is excluded by Section 13:533 of AIA Document .A201 2007 or by ". other provisions of the Contract Documents, and which do not fall within the scope of Section 6.733, PAGE 14 § 44.8-L6.4 Legal, mediation and arbitration costs; including attorneys' fees, other than those arising from disputes between the Owner and Construction Manager, reasonably incurred by the Construction Manager after the execution of this Agreement in the performance of the Work and with the Owner's prior approval, which shall not be unreasonably withheld. " Additions and Deletions Report for AIA Document A133" - 2009 (formerly A121 T "CMC - 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA,` Document is protected by VS, Copyright law and intematlonai rreaties, Unauthorized '(1 reproduction or distribution of this AIA" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law, This document was produced by AIA software at 16 :00 37 on 05105/2015 under Order No, 7931813803 which expires on 06/15 /2015, and is not for resale. User Notes: (3B9ADA20) § 6.6.9 Sables! to tile Ovener's prior approval, expeirses ineurned in accordance Aith II C—arstruetion Mymagep' personnel fequifed fef the, Work.. .9 Construction Manager's fee of 2.85% on all self- performed scopes of work competitively bill and awarded to the Construction Manager. PAGE 15 5 6.9.3 Costs from the inspection service and /or testing lab that are incurred as aresult of the 'failure of the :Construction Manager to make the Work ready for an inspection or test scheduled by the Construction Manager if notice of cancellation is not provided shall be credited to the Owner as a deduction from the Cost of the Work. 56:9.4 Costs from .the inspection service and/or testing lab that are incurred as a result of the failure of the Work to Pass an inspection or test shall be credited to the Owner as a deduction from the Cost of the Work. §7.1.3 The Owner will pay an approved Application for Pavment within fifteen (15) days after the .date such approved. Application for Payment is received by the ^ -P;hit,,,t net 19R F than the da. 4a _,s..tr, the Marsagef not Weir than tho Owner from the PAGE 16 § 7.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee "shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected To by the Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. Construction Manager shall use AIA Document G702 for AnDlication and Certificate for Pavments, and shall use AIA Document G703 for necessary continuation sheets related to AIA Document G702, or shall use such documents in a similar format approved by the Owner. Additions and Deletions Report for AIA Document A133 -- 2009 (formerly A121'"'CMC — 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 12 reproduction or distribution of this AIM Document or any portion of it,: may result in severe civil and comics penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16 00i 37 on 05/05/2015 under Order No. 7931813803 which .expires on 06/1512015, and is not for resale. :User Notes: (3B9ADA20) 3 Add the Construction Manager's Fee, less retainage of five percent ( 5 %). The Construction Manager's Fee shall be computed upon the Cost of the Work at the rate stated in Section 5.1 or, if the Construction Managers Fee is stated as a fixed sum in that Section, shall be an amount that bears the same ratio to that fixed -stun fee as the Cost of the Work bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Subtract retainage of five percent( 5 %) from that portion of the Work that the Construction Manager self- performs; M «41rA PAGE 18 & 7,2.5 The Contract shalt not have been fully performed until all Work required by the Construction Documents has been performed and the Construction Manager provides the following to the Owner: .1 record or as -built drawings executed or complete in both hard -coov and .pdf formats: .2 executed or complete certificates of documents evidencing warranties and owner - operators manuals: .3 all documents evidencing required testing, inspection. verification and other engineerim4 or consulting services required under the construction contract; .,4 insuring agreements and bonds covering all periods of construction and any subsequent periods required under the contract; and .5 one copy of each item in this section in electronic format. 'Additions and Deletions Report for AIA Document AUV3 -2009 (formerly A121 TMCMC - 2003). Copy rght O 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved WARNING: This AIA® Document is protected by US. Copyright Law and International Treaties, Unauthorized reproduction or distribution of this Aba- Daomnent, or any portion of t, may result in severe civil and criminal penalties, and will be: prosecuted to the :maximum extent possible under the law. This document was produced by AIA software at 16:00:37 on 05/05/2015 under Order No 7931813803 which 'expires on 06/15/2015, and is not for resale. .User Notes: (389ADA20) . " [X] Litigation in a court of competent jurisdiction in Guadalupe County. Texas. The Architect will serve as the Initial Decision Maker pursuant to Section 15.2 of AIA Document A201-2007 for Claims arising from or relating to the Construction Manager's Construction Phase sei- lees - nleOs the peftti ° services. §10.1.1 Prior to the execution of the Guaranteed Maximum Price Amendment, the Owner may terminate this Agreement upon not less than seven days' written notice to the Construction Manager for the Owner's convenience and without eaHse, and the GefiRtfuetion Malftggff Fitt; n Hetipp to the r the feaseftis set forth in Seetien 14. 1. 1 r .cause. neiz, PAGE 19 § "10.1.2 In the event termination of this Agreement pursuant to Section 10.1.1. the Construction Manager shall be ecgHitahly compensated for Preconstruction Phase services performed piz ^: to Fee pt of a notics of termination. f., no Se ^tieft 4.1.in accordance with the terms contained in this Anreement .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section `.' ef, if the Coreafthetien n 1...., , -Ws Pee t °a ° ° fixed ° n that seetien, an amount that beal's flie same FRAie to that fi�spd surn pop a's thp (28st 41,he Wefk 4 �he time D 5.1: and Additions and Deletions Report for AIA Document A133Te - 2009 (formerly A121 T "CMC — 2003). Copyright © 1991 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING. This AIA", Document is protected by US Copyright Law and International Treaties, Unauthorized 14 reproduction or distribution of this AIA" Document, orally portion of it, may result in severe civil and Crlmmai penalties; and will be prosecuted to tae maximum extent possible under the law. This document was produced by AIA software at 16.00:37 on 05/05/2015 under Order No 7931813803 which :expires on 06/15/2015. and is not for resale. User Notes: (389ADA20) § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price legal assignment (including rental D 5 legal assigfiffient efsReh and . All SnbeentFaet!i, affeeffienIls entered into by the Geristfuetion Nlartaget- PFe ,isig s alle . ing a._ assi...,...,I4 to the n„ as described abw o § 10.2.1 Following execution by both parties of actually performed prior to termination. and reasonable demobilization costs. 0 kR .10.2.2 Following execution by both parties of the Guaranteed Maximum Price Amendment, if theProiectwork is stopped for a period of ninety days through no actor fault of the Construction Manager, then the Construction Manager mav, upon ten additional days written notice to the Owner. terminate this agreement and recover from the Owner .2. Mid ._._ . _ .payment for all work actually performed. for any loss sustained upon anvmaterials. equipment tools equipment. and machinery, and profits on only that portion of the work actual) erformed prior to am unt payable te 414e GenstFuetien lS 4aisagef pufstiant to Soetions 14 a and 14.4 4.4.201 2007 shall met P),Pppd the Agfeement.tennination. If the cause of the work stoppage is removed prior to the end of the ten day notice period the Construction Manager mav not terminate this agreement .Additions and Deletions Reportfor AIA Document A13Vm - 2009 (formerly A121 T CMc - 2003). Copyright if) 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved WARNING: This AIA ",' Document is protected by U.S. Copyright a.aw and International Treaties. Unauthorized 15 reproduction or distribution of this AIA"' Decu(nent, or any portion bid, may result in severe civil and Criminal penalties, and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA software at 16:00:37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (389ADA20) b AniendfHeya the amount Payable te �ke Manager under ' , . -e 4A20 except that the Managee's Fee sl,iall be Palpi-ilathid a's i�tlie Work had been Itilly completed b) the J eernplefed. 10.2.3 The Owner or the Construction Manager may terminate this agreement for cause as provided in Article 14 of the A201 -2007 Documents, The Owner and Construction Manager, respectively, bind themselves, :their agents. successors, assigns and legal representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement without the e e e keut- written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. PAGE 20 Additions and Deletions Report for AIA Document A133,« - 2009 (formerly A1211 -CMc - 2003). Copyright © 1991, 2003 and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA "' Document is protected by U.S Copyright taw and International Treaties Unauthorized 16 reproduction or distribution of this AIA` Document or any portion of it, may result: in severe civil and t rim inai pen a lies and wit be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:00 37 on 05 /05/2015 under Order No 7931813063 which expires on 06115/2015, and Is not for resale. User Notes: (389ADA20) OWNER FS w ei CONSTRUCTION MAPIAGSR ry ., e6it Hold 64;6- Additions and Deletions Report for AIA Document A133TM - 2009 (formerly A1217"ClAc — 2003). Copyright © 1991, 2003. and 2009 by The American Institute of Architects. All rights reserved. WARNING: This AIA", Document is protected by U.S Copyright Law and internationaI Treaties. Unauthorized 17 reproduction or distribution of this AIA' :Document. or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law, This document was produced by AIA software at 16,00:37 on 05/05/2015 under Order No 7931813803 which expires on 06/15/2015, and is not for resale.. '.. User Notes: (389ADA20) Certification of Document's Authenticity A/AO Document D401- - 2003 I, , hereby certify, to the best of my knowledge, information and belief. that I created the attached final document simultaneously with its associated Additions and Deletions Report and this cerPitication at 16:00:37 on 05/05/2015 under Order No: 7931813803 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA"x Document A 133T61- 2009, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus aFee with a Guaranteed Maximum Price, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. day /10TMYWFMWW—S0M1M T.S. (Title) %d1.5 (Dated) AIA Document D401 T. -2003. Copyright ©1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected. by U.S. Copyright law and internationaI Treaties,. Unauthorized reproduction or distribution ofitus AIA-,,' Document Ora ny portion of it, may result in severe civil and criminal penalties and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:00 37 on M05/2015 under Order No 7931613803 which expires on 06/15/2015, and is not for resale. User Notes: (369ADA20) Revisions due to redundancy of other Charter or State Law Powers. • Sec 2.01 General Powers • Section 2.02 Intergovernmental relations • Section 3.01 Establishment • Section 4.09(e) Meeting and Procedures • Sec 6.07 Tax Assessor — Collector • Sec 7.05 Capital Improvements Program • Section 8.02 Board of Adjustment (Deletion) • Article XI Public Utilities • Sec 12.03 Liability for Persona Injury or death Section 2.01 General Powers. The City shall have all the powers granted to cities by the Constitution and general laws of the State together with all of the implied powers necessary to execute such granted powers. 44e .lift. 11111111111111111��JJJJJW&Ijjff JIM ZUJAL= Section 3.01 Establishment. The municipal government provided by this Charter shall consist of a Mayor and Councilmembers, elected by the people and responsible to the people, and a City Manager, appointed by and responsible to the City Council for proper administration of the affairs of the City. Pursuant to its provisions and subject only to the limitations imposed by the Constitution and general laws of the State and by this Charter, all powers of the City shall be vested in the elected Mayor and Councilmembers, who shall enact local legislation, adopt budgets and determine policies. All poweFs of the City shall be exefeised in the manner- pr-eser-ibed by this Ghai4ei:, of if not pfeser-ibed,- then asmay bepfesefibe by ,,fdi ee. Section 4.09 Meetings and Procedure. (e) Passage of Ordinances and Resolutions. Ordinances and resolutions shall be introduced to the City Council only in written or printed form. The subject or subjects of all ordinances and resolutions shall be clearly expressed in the title. Except as may otherwise be prescribed in this Charter, an ordinance shall not be passed at the meeting of the City Council at which it is first introduced, but instead the ordinance or its caption shall be read, and the City Council will determine whether it shall be rejected or further considered at a subsequent meeting of the City Council. If rejected, no further action shall be required. The City Council must take second and final consideration of any ordinance not later than sixty days after the first reading of such ordinance. Notwithstanding the foregoing provisions, if the City Council, by a vote of not less than two - thirds of the members present at the meeting at which an ordinance is first introduced, determines that an emergency exists requiring immediate action, such ordinance may then be voted upon and rejected or passed at that meeting. e and "Nays" shall all be takeff upon the passage of all or-dinanees and r-eseltitions and entered in the minutes of the City Cotineil. The affirnia4 The Mayof shall vote only in the event of a tie; the Mayof Pfa Tem may vote on any mattef being eonsidefed by the City Coumeil. The enacting clause of all ordinances shall be, `BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS ", and every ordinance shall be authenticated by the signature of the Mayor and the City Secretary and shall be systematically recorded and indexed in an ordinance book in a manner approved by the City Council. (1) Franchise ordinances. All ordinances granting, confirming, extending, renewing or amending a franchise shall be accepted in writing by the grantees, and the full text thereof shall be placed on the City's website for at least one week prior to final adoption of the franchise ordinance. (2) Effective date. Every ordinance passed by the City Council shall be enrolled by the City Secretary as soon as practicable after its passage. If the ordinance was published, he or she shall note the time and place of publication which shall be prima facie proof of publication thereof. The affidavit by the printer or publisher shall also be prima facie proof of the publication. Enrollment of an ordinance shall be prima facie proof of its legal adoption and effect. (3) Codification of ordinances. The City Council shall have the power to cause the ordinances of the City to be corrected, amended, revised, codified and printed in code form as often as the City Council deems advisable, and such printed code, when adopted by the City Council, shall be in full force and effect without the necessity of publishing the same or any part thereof in a newspaper. All printed ordinances or codes of ordinances shall be admitted as evidence in all courts without further proof and shall have the same force and effect as did the original ordinance. (Election of 5 -6 -89, 5 -3 -97, 5- 13 -06, 11- 06 -12) Section 6.07 Tax Assessor - Collector. • slip. 1111MI WT �. applical,-4e State law. Affeafs Taxes Offset Debt Against Git The City be (d) of of shall entitled 1 10.11-4111 Section 7.05 Capital Improvements Program. Section 8.02 Board of Adjustment. �Wmflllil "m 1i CS���SS�I�I� 1:1,TIS:il1[SS�IR 1i 1 kW mm%lllm�- ISM ON 1011 N I' w 10.10i owns fff�mlm .............. 1010 11M.".111 — ----- NO �Mffpqr oil olooll jj�j "I'llowNwalk W. "N" `11 . ............... . .. . . . ......... Fill . . . .......... . ................... .1i.tioll, I'll Is- ''1 11,11111 1 lill III III I I MINN." Mill 10.11, - .... . ....... WIN. DOW .4 MAIL 1111111 �.W ELML%MZ 11, 1 11 1011 11 ,rim -11110 w imim 1 1.4 , ORIN 1.10.4 1 1111 1 �1111 I I . ...... . ...... ....... ...... , �11 ft. lj� .1 1 �1. i Mill= III W.WTORMIll. NUNN �-. MWO.M. 11mom imor F11, .......... Increase City Council from 5 to 7 members • Sec 4.01 Number, Selection and Tenn • Sec 4.09(c) Meetings & Procedures Section 4.01 Number, Selection and Term. The City Council shall be composed of the Mayor and 4ve seven Councilmembers. The Mayor and all Councilmembers shall be elected from the City at large. Subject to Section 4.06(c), the Mayor and Councilmembers shall be elected in the manner provided in Section 9.01 of this Charter for two -year terms. Each Councilmember shall occupy a position on the City Council, such positions being numbered Place One through Place Seven . At the firs* genet ' eleet on he ' undef this Chaftef and each odd numbefed year- thefeaftef, Couneilmembefs to fill Plaees , Four-, and Five shall be eleeted. The following year- and eaeh even number-ed year- ther-eaftef, t Mayof and the Gotine4membefs filling Plaees One and Two shall be eleeted. THIS AMENDMENT IS TIED TO CHANGE IN NUMBER OF COUNCIL MEMBERS. Section 4.09 Meetings and Procedure. (c) Quorum. thfee Four Councilmembers (excluding the Mayor) shall constitute a quorum, and no action shall be valid unless adopted by the affirmative vote of dwee four or more members of the City Council. If the Mayor Pro -Tem is presiding, he or she shall be counted for purposes of determining a quorum. Increase elected official terms from 2 to 3 years in length • Sec 4.01 Number, Selection and Tenn • Sec 4.06(c) Filling Vacancies • Sec 9.03 Determination of Election Results Section 4.01 Number, Selection and Term. The City Council shall be composed of the Mayor and five Councilmembers. The Mayor and all Councilmembers shall be elected from the City at large. Subject to Section 4.06(c), the Mayor and Councilmembers shall be elected in the manner provided in Section 9.01 of this Charter for two- three -year terms. Each Councilmember shall occupy a position on the City Council, such positions being numbered Place One through Place Five. At the firs* genera' elect on held undef this Charter and each odd numbered year thereafter, Couneilmembefs to -11 P'-,,. , Fouf, and Five shall be eleeted. The fell nd eaeh even fmn+ber-ed aftef, the Mayof and the Cotmeilmembefs filling 111 1 Two shall be eleeted. Section 4.06 Vacancies, Forfeiture, Filling of Vacancies. (a) Filling Vacancies. (1) In the event of a single vacancy in the City Council, if there are 365 days or more remaining on the term of the vacated City Council position, the City Council shall call a special election to fill such vacancy. If there are less than 365 days remaining in the term of the vacated City Council position, the City Council may, by majority vote of the remaining Councilmembers, at its discretion appoint a new Mayor or Councilmember to fill such vacancy or call a special election to fill such vacancy. Tied to term changes Section 9.03 Determination of Election Results. Cotmeilmembef Plaee One, ete., who shall have feeeived the most votes f0f eaeh offlee east in stte . eleetion, shall be deelafed eleetea. In the event no candidate for an elective office receives a maioritv of the votes cast for that place in the iieneral or special election. a run -off election shall be held between the two (2) candidates who received the greater number of votes. In the event a tie vote makes it impossible to determine the winning candidate or candidates, resolution of such tie shall be decided as provided in the Texas Election Code. Provide for Revised Prohibitions, Forfeitures of Office and Hearin Process • Sec 4.06(a) Vacancies and (b) Forfeitures • Sec 4.07 Prohibitions • Sec 4.11 Council Investigations; Hearings; Process • Sec 12.02 Prohibitions • Sec 12.10 Penalties (Addition) Section 4.06 Vacancies, Forfeiture, Filling of Vacancies. (a) Vacancies. The office of a Councilmember or the office of the Mayor shall become vacant upon his or her death, mental of physieal disability, fesig ^*i ^N, removal from office in any manner authorized by law, or forfeiture of his or her office as provided for in this Charter. Detefminalien of mental of physieal disability shall be eeffified by two physieians qualifie piaetiee medicine in the State. (b) Forfeiture. The Mayor or a Councilmember shall forfeit his or her office upon: (1) Final conviction of a felony or of an offense involving moral turpitude, a violation of any state laws regulating conflicts of interest of municipal officers, or is assessed a deferred adjudication or probation for any state laws regulating conflicts of interest of municipal officers. (2) Ceasing to be a resident of the City. (3) Failure to regularly attend City Council meetings without an approved absence obtained by a majority vote by City Council either before or after the absence. There shall be a presumption of failure to regularly attend when three (3) regular meetings are missed during a term vear without obtaininiz an annroved absence from Citv Council. !gttlafly attend when -n+ (4) A determination by City Council of the inability or unfitness to prompt]y_ and properly discharge official duties because of a serious mental or physical defect that did not exist at the time of election. Section 4.07 Prohibitions. (a) Employment with the City. No Mayor or Councilmember shall hold any ether any City eantfaet of tfansaetian; and no �afmef Mayof of Couneilmembef shall hold any compensated City office or employment until two (2) years after the expiration of the term for which he or she was elected to the City Council. (b) Appointments and Removals. Neither the City Council nor any of its members shall in any manner dictate the appointment or removal of any City administrative officer or employee whom the City Manager or any of his or her subordinates are empowered to appoint, unless otherwise provided in this Charter, but the City Council may express its views and fully and freely discuss with the City Manager anything pertaining to appointment and removal of such officers and employees. (c) Interference with Administration. Except for the purpose of inquiries, unless otherwise provided in this Charter, the City Council or its members shall deal with City officers and employees who are subject to the direction and supervision of the City Manager solely through the City Manager, and neither the City Council nor its members shall give orders to any such officer or employee, either publicly or privately. (d) Admission of Liability. Neither the City Council nor any of its members Of employees of the Cit� shall accept or admit liability or pay any claim for damages asserted against the City without first obtaining a written opinion from the City Attorney regarding the City's liability therein. (e) Conflicts of Interest. It is hereby prohibited for the Mayor or Councilmember or a City Official to violate the rules and regulations regarding conflicts of interests as set out in the Texas Local Government Code, Chapter 171 as amended or its successor. For purposes of this Section term "City Official" means any individual subject to the requirements of Texas Local Government Code, Chapter 171 as amended or its successor. (f) Attorney Client Privilege. It shall be unlawful for the Mayor or a Council Member to release any attorney- client privileged communication. The City Council as the governing body of the City holds and is entitled to the attorney client - privilege and it may only be waived by an affirmative vote of two - thirds of the City Council. Section 4.11 Council Investigations; Hearings; Process A. General. In addition to any other specific authority of investigation and hearing provided for in this Charter, the City Council shall have the power to inquire into the official conduct of any department, agency, appointed boards, office, officers, employees or appointed board members of the City. For the purpose of investigations and hearings, the City Council shall have the power to administer oaths, subpoena witnesses, compel the production of books, papers, and other evidence material to the inquiry. The City Council shall provide, by ordinance, penalties for contempt in failing or ref isin to o obey any such subpoena or to produce any such books, papers or other evidence. The City Council shall have the power to punish any such contempt in the manner provided by such ordinance. B. Hearings Process for Forfeitures of Office and Prohibitions. 1. All hearings held under this subsection shall be conducted in open session, except that the City Council may conduct a closed session to get advice from its attorney pursuant to the Texas Open Meeting 2. The office holder subject to any investigation and/or hearing under this section shall be entitled to written notice of the allegations of forfeiture and /or the alleged violation of this Charter as applicable; 3. A special meeting shall be called to hold the hearing 4. A member of City Council who initiated or is the subject of the investigation or hearing shall not sit at the dais and shall not participate in deliberations or vote; 5. City Council shall adopt by ordinance rules of procedures to be followed; 6. The City Council shall state the nature of the hearing and the allegations to be considered, shall be provided the results of any investigation and a presentation of the evidence against the office holder including, but not limited to testimony from individuals; 7. The individual who is subject to the hearing shall be provided an opportunity respond to the allegations and present any relevant evidence including, but not limited to, testimony from individuals; 8. City Council may ask of any individual; 9. No public comment shall be allowed; 10. In the case of an alleged forfeitures of office pursuant to Section 4.06 (b ) of this Charter City Council shall vote on the forfeiture and on the affirmative vote of two - thirds of City Council declare the office of said office holder to be forfeited and vacant; 11. In the case of an alleged violation of Section 4.07 of this Charter City Council may, on the affirmative vote of a majority of the City Council, take any action it determines to be appropriate including, but not limited to, directing further investigation, requesting further information, vote to enforce a penalty pursuant to section 12.10 of this Charter, vote to bring an action in municipal court, take a vote of censure; or, upon the affirmative vote of two - thirds (2/3) of CitX Council declare the office of said office holder to be forfeited and vacant. 1.2. Unless prohibited pursuant to subsection 4 herein, the Mayor shall vote in the case of an alleged forfeitures of office pursuant to Section 4.06 (b) of this Charter or of an alleged violation of Section 4.07 of this Charter. Ilk St W '- Ip Section 12.10 Penalty Clause. A. Criminal Penalty. Any Person who by himself or with others violates any provision of this charter shall, in addition to any other Penalty, be guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not more $500.00. City Council shall enact an ordinance enforcing this section. B. Civil Penalty. Upon the affirmative vote of two- thirds of the City Council any person . who by himself or with others violates any provision of this charter shall be, in addition to ar_ other penalty provided for herein, subject to a civil fine of not more than $500.00. Financial Procedures • Revision to multiple sections in Article VII ARTICLE VII FINANCIAL PROCEDURES Section 7.01 Fiscal Year. The fiscal year of the City shall begin on the first day of October and end on the last day of the following September. Section 7.02 Submission of Budget. The City Manager shall submit to the City Council a budget for the ensuing fiscal year and an accompanying message not later than shy fifty days prior to the beginning of each fiscal year. Seetion 7.03 Budget Message. The Gity Managef's budget message shall outline the pfoposed finaneial p0heies 0 as the City Tif.,nagef deems deli able Seetion 7.04 -Budget Contents. The budget shall pfovide a eomplete finaneial plan fef the ensuing fiseal yeaf. it sh Section 7.05 Capital Improvements Program. The City Manager may prepare and submit to the City Council a five year capital improvements program on his or her own initiative and shall do so when so directed by the City Council. Section 7.06 City Council Action on Budget. {b) Amendment before Adeption. Aftef the publie heafing, the City Gotmeil may adopt the budget with or- without amendment. in amending the budget, it may add or- iner-ease pfogfafns law of for- debt sen4ee or- f6f estima ed eash defieit, provided that no amendfRefit to the budget shall inefease the author-ized expendittifes to an amount greater- than the total of estimated ineome. (c) Adoption-. The City Council should adopt the budget, with or without amendments, after public hearings and before the first day of the ensuing fiscal year. Should the City Council take no final action, amounts appropriated for the current fiscal year shall be deemed adopted on a month to month basis. Final adoption shall constitute appropriation of the expenditures proposed from funds so indicated. Seetion 7.07 Amendments After Adoption. {-a} , the City Managef eeffifies budget, that thefe afe available f6f appfopfia ion fevenu- i of those estimated in the the City Council may make supplemental appfopfiations for- the year- ttp to the amount of sueh exeess. Mi ■ 1 I Hill Vol "I" "Ill win lkw",TffrMa"A 1 � . • S'` . ftiTlT_ SR ISl.T.RR'�.lrlZff!!�'!f!fE�!!7: 1 10.015111#1 1 W.1-1111 1011M.. 51.1 MW rim • S'` . ftiTlT_ SR ISl.T.RR'�.lrlZff!!�'!f!fE�!!7: 51.1 MW rim • M.F.- 51.1 MW M.F.- 51.1 MW 1 M - -7 7-"- 1 Section 7.11 Audit. The City Council shall cause an annual audit to be made of the books and accounts of each department of the City and shall have an annual financial statement prepared based on the audit. A complete audit shall be made at the end of each fiscal year, and at such other times as may be necessary, by an independent Certified Public Accountant who shall be selected by the City Council. The annual financial statement, including the auditor's opinion, shall be filed with the City Secretary and shall be available for public inspection. The auditor selected shall not maintain or keep any of the City accounts or records. Elections conducted Pursuant to State Law • Sec 4.02 Qualifications • Sec 9.01 City Elections • Sec 9.02 Candidates Section 4.02 Qualifications. The Mayor and each Councilmember must, at the time-o=f the age of eighteen or older on the first day of the term of office U of the City of Schertz, and have been a resident of the City for a months immediately preceding the deadline for filing for an a� ballot offiee, and not be an obliger-to the Gi ^''ligation Pa a pefson may be eleet °a and holE „If;ce i�. such obligatien is b filing -f--- offi°°, have attained plied for, be a registered voter t least six twelve consecutive )plication for a place on the A "e, provided, howeve etively contested in the Section 9.01 City Elections. � ::re�eers�s��s�re��. �s�r_ sr_ s .���s:re��rrrrrs�rs�r_srzsrss�r ...... (a) The regular City election shall be held annually on the uniform election date in November, or at such other times as may be authorized or specified by State Law, at which time officers will be elected to fill those offices which become vacant that year. (b) The City Council shall fix the place for holding such election. (c) The City Council may, by ordinance or resolution, order a special election, fix the date and place for holding same, and provide all means for holding _ such special election. On m". -zer, STO M1 91V WmAwkmu mm � ::re�eers�s��s�re��. �s�r_ sr_ s .���s:re��rrrrrs�rs�r_srzsrss�r ...... (a) The regular City election shall be held annually on the uniform election date in November, or at such other times as may be authorized or specified by State Law, at which time officers will be elected to fill those offices which become vacant that year. (b) The City Council shall fix the place for holding such election. (c) The City Council may, by ordinance or resolution, order a special election, fix the date and place for holding same, and provide all means for holding _ such special election. Section 9.02 Candidates. (a) Any person having the qualifications set forth for- Couneiln mbe+—under Section 4.02 of this Charter shall have the right to file an application to have his or her name placed on the official ballot as a candidate for any one elective office_ sue4i —as Nf F, , shall 1. Any such application shall be in writingsigned by such candidate, and filed with the City Secretary in accordance with the Texas Elections Code and this Charter. 2. An application filed in accordance herewith shall entitle such applicant a place on the official ballot. (b) A candidate of the City Council shall specify the place number or position the candidate is seeking. (c) A filing fee of five dollars, or such other amount as may hereafter be set by the City Council, must be paid to the City Secretary by each candidate upon presentation of his or her application. The filing fee shall be waived if the candidate states in writing that payment thereof will constitute a financial hardship. Initiative Referendum Recall • Sec 10.03 Initiative and Referendum Petition Signatures • Sec 10.03 Recall Petition Signatures Section 10.03 Petitions. (a) Number of signatures. Initiative; and referendums petitions must be signed by qualified voters of the City equal in number to at least €ice (5 0) fifteen (15) percent of the number of voters registered to vote at the last general City election total fi•iflibe - of qualified votefs who voted at the last Mayefal , . Recall petitions must be signed by qualified voters of the City equal in number to at least twenty (20) percent of the number of voters registered to vote at the last genera] City election. (b) Form and content. All pages of a petition shall be uniform in size and style and shall be assembled as one instrument for filing. For a petition signature to be valid, the petition must: (1) Contain in addition to the signature: (A) The signor's printed name; and (B) The signor's (i) Date of birth; or (ii) Voter registration number and the County of voter registration; and (C) The signor's residence address (including street address and County of voter registration); and (2) Comply with any other applicable requirements prescribed by State law. Petitions shall contain or have attached thereto throughout their circulation the full text of the proposed ordinance or other subject matter of the petition. A recall petition must distinctly and specifically state the reason or reasons upon which the petition is predicated. (c) Affidavit of circulator. Each page of a petition shall have attached to it when filed the following notarized affidavit, with all blanks properly completed: "STATE OF TEXAS § CITY OF SCHERTZ § I, , being first duly sworn, on oath confirm that (i) I am one of the signers of the above petition, (ii) I personally circulated the foregoing page of said petition, (iii) there are signatures on such page, (iv) each of the signatures appearing on such page was signed in my presence on the day and date it purports to have been signed, (v) the same are the genuine signatures of the persons whose names they purport to be, and (vi) each signer had an opportunity to read the full text of the ordinance or other subject matter of the petition. Sworn and subscribed to before me, this the day of 20 Signed and Sealed by a Notary Public in and for State of Texas" (d) Filing recall petition. Recall petitions shall be initiated and filed with the City Secretary within sixty days after the petitioners' committee files its affidavit. (e) Filing referendum petitions. Referendum petitions must be filed within sixty days after adoption by the City Council of the ordinance sought to be reconsidered. Disannexation Procedures • Sec 1.02(c) Providing for Disannexation Procedures See. 1.02. - Boundaries; Extension, Annexation and Disannexation. (a) Boundaries. The bounds and limits of the City are hereby established and described as those which exist under authority of the current City ordinances and displayed on a map maintained by the City Secretary and those boundaries established and changed hereafter as provided; such map to be maintained hereafter by the City Manager and maintained in a public place. (b) Extension of Boundaries; Annexation of Territory. The City Council shall have the power by ordinance to annex territory lying adjacent to the City, with or without the consent of the owners or inhabitants thereof, thereby extending and enlarging the bounds and limits of the City. Such annexations shall be limited and controlled by the applicable annexation laws of the State. (c) Disannexation. Any area hereafter annexed under this Charter and the law of this State maybe disannexed as follows: only ,.,.,ranee t'' State!TT' i. Prior to disannexing any property of the City a public hearing shall held before both the City's Planning and Zoning commission and City Council on the proposed disannexation. ii. Before the I Oth day before the hearing date before the Planning and Zoning Commission, written notice of the public hearing shall be sent to each owner, as indicated by the most recently pproved municipal tax roll, of real property within 200 feet of the area to be disannexed. The notice may be served by in the United States mail, properly addressed with postage paid. iii. Not later than 30 days of completion of the public hearing by the Planning and Zoning Commission the City Council shall hold a public hearing on the proposed disannexation. Before the 15th day before the date of the public hearing, general description of the property to be disannexed and notice of the time and place of the hearing must be published in an official newspaper or a newspaper of general circulation in the City. iv. Not later than 30 days after the completion of the public hearing conducted by City Council the City Council may adopt an ordinance disannexing the property. A metes and bounds description of the property shall be attached to the ordinance as an exhibit. Signature of Documents • Sec 4.05 Clarifying when Mayor signs documents Section 4.05 Mayor and Mayor Pro -Tem. The Mayor shall be the official head of the City government. He or she shall be the chairman and shall preside at all meetings of the City Council. The Mayor may vote only in the event of a tie. He or she shall, when ,,uthaf unless another signatory is otherwise designated by the City Council, sign all official documents such as ordinances, resolutions, conveyances, grant agreements, official plats, contracts, and bonds. He or she shall appoint special committees as instructed by City Council, with committee membership to be composed of nominees by the City Council. He or she shall perform such other duties consistent with this Charter or as may be imposed upon him or her by City Council. The Mayor shall not have veto powers. The Mayor Pro -Tem shall be a Councilmember appointed by the City Council for a term and pursuant to procedures established by the City Council from time to time. The Mayor Pro - Tem shall act as Mayor during the absence or disability of the Mayor and in this capacity shall have the rights conferred upon the Mayor. While acting as Mayor, the Mayor Pro -Tem may vote on any matter before the City Council. Appointment Appointment of Assistant City Managers • Sec 5.01 Section 5.01 Appointment; Qualifications; Compensation. The City Council shall appoint a City Manager and fix his or her compensation. He or she shall be chosen on the basis of his or her executive and administrative training, experience, ability and character. He or she need not be a resident of the City or State at the time of his or her appointment, but he or she must agree, prior to such appointment, to become a resident of the City within four months after the date of his or her appointment. If he or she thereafter fails to become a resident of the City within that four -month period, he or she shall be deemed to have forfeited his or her appointment and the office shall be declared vacant by announcement of the Mayor at the first meeting of the City Council following the expiration of the four -month period. The City Manager shall serve at the will and pleasure of the City Council. He or she shall be employed for or relieved from his or her duties by a vote of a majority of the members of the entire City Council. , the Gity Catmeil may appoint one of mofer Assistant City Managefs and set the eompensation fof stteh appointees, City Manager Designee • Sec 5.03(c Section 5.03 Powers and Duties of City Manager. The City Manager shall be the chief administrative officer of the City. He or she shall be responsible to the City Council for the administration of all City affairs placed in his or her charge by or under this Charter. He or she shall have the following powers and duties: (a) He or she shall appoint and, when he or she deems it necessary for the good of the City, suspend or remove City employees and appointive administrative officers provided for, by or under this Charter, except as otherwise provided by law, this Charter, or personnel rules adopted pursuant to this Charter. He or she may authorize any administrative officer who is subject to his or her direction and supervision to exercise these powers with respect to subordinates in that officer's department, office or agency. (b) He or she shall direct and supervise the administration of all departments, offices and agencies of the City, except as otherwise provided by this Charter or by law. (c) use The City Manager or their designee shall attend all City Council meetings and shall have the right to take part in discussion but may not vote. (d) He or she shall see that all laws, provisions of this Charter and acts of the City Council, subject to enforcement by him or her or by officers subject to his or her direction and supervision, are faithfully executed. (e) He or she shall prepare and submit the annual budget and capital program to the City Council. (f) He or she shall submit to the City Council and make available to the public a complete report on the finances and administrative activities of the City as of the end of each fiscal year. (g) He or she shall make such other reports as the City Council may require concerning the operations of City departments, offices and agencies subject to his or her direction and supervision. (h) He or she shall keep the City Council fully advised as to the financial condition and future needs of the City and make such recommendations to the City Council concerning the affairs of the City. (i) He or she shall perform such other duties as are specified in this Charter or may be required by the City Council. (j) He or she shall keep a written inventory of all real property and all permanent equipment belonging to the City, said inventory to be subject to annual audit. A system shall be established to control the use and replacement of expendable items. He or she shall have the authority to sign documents in the name of the City as authorized by the City Council. Personnel Policies • Sec 6.02 Operational and Personnel Policies Section 6.02 Operational and Personnel Rules Policies. The City Manager shall be responsible for the preparation of operational and personnel policies. , ..hieh vdles shall be submitted by him of hef to the City Couneil. Personnel policies which affect the budget and employee discipline and /or adverse actions shall be approved by City Council. The City Council may accept and adopt such v.,� policies as proposed or may adopt them with such amendments as the City Council deems necessary or may reject them in their entirety and direct the City Manager to further consider the ..� policies and present new proposals at a subsequent meeting. Operational and administrative policies shall be approved by the City Manager but shall be provided to City Council for their information. Deputy City Secretary • Sec 6.06 Section 6.06 City Secretary (a) The City Council shall appoint a City Secretary who shall act as Secretary of the City Council and who shall hold office at the pleasure of the City Council. The City Secretary shall be the clerical officer of the City Council, and shall keep the minutes, agenda, ordinances and other official records of the City Council and the City. The City Secretary shall be the custodian of the official seal of the City, and shall have such other duties and powers prescribed in this Charter and by the City Council. The City Council will set the compensation for the City Secretary. The City Secretary shall report administratively to the City Manager but may be removed from office only by the City Council. (b) Upon approval by City Council of the position (s), the City Secretary may hire a deputy or deputies. The Deput,, or Deputies shall report directly to the City Secretary. J�i I I • Planning & Zoning Commission • Sec 8.01 Section 8.01 Planning and Zoning Commission. Ordinances Passed by Petition • Sec 10.09 Section 10.09 Ordinances Passed by Petition, Repeal or Amendment No ordinance which may have been passed by the City Council upon a petition or adopted by popular vote under the provisions of this Article maw pealed or amended by the City Council for a period of three (3) years from the date said ordinance became effective and then only upon an affirmative vote of two - thirds (2/3s) of the Citv Council. Personal Financial Interest • Sec 12.01 Section 12.01 Personal Financial Interest For purposes of this Section terin "City Official" means any individual subject to the requirements of Texas Local Government Code, Chapter 171. It is hereby prohibited for City Council members or a City Official to violate the rules and regulations regarding conflicts of interests as set out in the Texas Local Government Code, Chapter 171. .... ..... .. . .. ... .... . . . . . .. .. . . . For purposes of this Section terin "City Official" means any individual subject to the requirements of Texas Local Government Code, Chapter 171. It is hereby prohibited for City Council members or a City Official to violate the rules and regulations regarding conflicts of interests as set out in the Texas Local Government Code, Chapter 171. Size of Charter Review Commission • Sec 12.05 Section 12.05 Charter Review Commission. The City Council shall periodically appoint a Charter Review Commission which shall consist of no less than 5 and no more than 1.1 of fwe citizens of the City. It shall be the duty of the Commission to: (a) Inquire into the operation of the City government under the Charter provisions and determine whether any such provisions require revision and to this end, public hearings may be held and the Commission shall have the power to compel the attendance of any officer or employee of the City to require the submission of any of the City records which it may consider necessary to the conduct of such hearing. (b) Make any recommendations it considers desirable to insure compliance with the provisions of this Charter by the several departments of the City. (c) Propose amendments to this Charter to improve its effective application to current conditions. (d) Report its findings and present its proposed amendments, if any, to the City Council. The City Council shall receive any report submitted by the Charter Review Commission, may comment on any proposed amendment recommendations made, and, if any amendment or amendments are presented as a part of such report, shall order such to be submitted to the voters of the City in the manner provided in Section 12.04. The term of office of the Charter Review Commission shall be 1.80 days after the date of appointment of the Commission, and, if during this term no report is presented to the City Council, then all records of the proceedings of the Commission shall be filed with the City Manager and the Charter Review Commission shall be dismissed. Term of Charter Review Commission • Sec 12.05 Section 12.05 Charter Review Commission. The City Council shall periodically appoint a Charter Review Commission of five citizens of the City. It shall be the duty of the Commission to: (a) Inquire into the operation of the City government under the Charter provisions and determine whether any such provisions require revision and to this end, public hearings may be held and the Commission shall have the power to compel the attendance of any officer or employee of the City to require the submission of any of the City records which it may consider necessary to the conduct of such hearing. (b) Make any recommendations it considers desirable to insure compliance with the provisions of this Charter by the several departments of the City. (c) Propose amendments to this Charter to improve its effective application to current conditions. (d) Report its findings and present its proposed amendments, if any, to the City Council. The City Council shall receive any report submitted by the Charter Review Commission, may comment on any proposed amendment recommendations made, and, if any amendment or amendments are presented as a part of such report, shall order such to be submitted to the voters of the City in the manner provided in Section 12.04. The term of office of the Charter Review Commission shall be 180 days after the date of the first meeting, said first meeting to occur within forty-five 45) days of the date of appointment. appointment of the Commission, and, ilf during this term no report is presented to the City Council, then all records of the proceedings of the Commission shall be filed with the City Manager and the Charter Review Commission shall be dismissed. Disaster Clause • Sec 12.09 Section 12.09 Disaster Clause. In the case of a common disaster when a legal quorum of the City Council cannot otherwise be assembled due to multiple deaths or injuries, the surviving_ persons of the City Council, or highest surviving City official, if no elected official remains, shall, within 24 hours of such disaster, request the highest surviving officers of the Guadalupe County Commissioners Court to appoint a number of residents of Schertz, qualified to serve as City Council Members, equal to the number necessary to make a quorum to act during the emergency as the City Council. The newly appointed City Council shall call a City election within 15 days of their appointment, or as provided in the Texas Election Code, for election of the vacant offices, if for good reasons it is known a quorum of the present City Council will never again meet. If it is determined that a quorum of the City Council will meet again, the appointed Council Members shall serve in their position until such time as the Council Members may begin serving_, Two Year Term Transition with 7 Council Members f►1DjGli Mayor shall be elected to a two year term to expire 2018 Place 1 shall be elected to a two year term to expire 2018 Place 2 shall be elected to a two year term to expire 2018 Place 6 shall be elected to a two year term to expire 2018 2017 Place 3 shall be elected to a two year term to expire 2019 Place 4 shall be elected to a two year term to expire 2019 Place 5 shall be elected to a two year term to expire 2019 Place 7 shall be elected to a two year term to expire 2019 2018 Mayor shall be elected to a two year term to expire 2020 Place 1 shall be elected to a two year term to expire 2020 Place 2 shall be elected to a two year term to expire 2020 Place 6 shall be elected to a two year term to expire 2020 2019 Place 3 shall be elected to a two year term to expire 2021 Place 4 shall be elected to a two year term to expire 2021. Place 5 shall be elected to a two year term to expire 2021 Place 7 shall be elected to a two year term to expire 2021. I_ Mayor shall be elected to a two year term to expire 2022 Place 1 shall be elected to a two year term to expire 2022 Place 2 shall be elected to a two year term to expire 2022 Place 6 shall be elected to a two year term to expire 2022 2021 Place 3 shall be elected to a two year term to expire 2023 Place 4 shall be elected to a two year term to expire 2023 Place 5 shall be elected to a two year term to expire 2023 Place 7 shall be elected to a two year term to expire 2023 Two Year Term Transition with 7 Council Members 2016 2017 2018 2019 2020 2021 Mayor Mayor Mayor Place 1 Place 1 Place 1 Place 2 Place 2 Place 2 Place 6 Place 6 Place 6 Place 3 Place 3 Place 3 Place 4 Place 4 Place 4 Place 5 Place 5 Place 5 Place 7 Place 7 Place 7 Three Year Staggered Term Transition with 5 Council Members 2016 Mayor shall be elected to a three year term to expire 2019 Place 1 shall be elected to a two year term to expire 2018 Place 2 shall be elected to a two year term to expire 2018 2017 Place 3 shall be elected to a two year term to expire 2019 . Place 4 shall be elected to a three year term to expire 2020 Place 5 shall be elected to a three year term to expire 2020 2018 Place 1 shall be elected to a three year term to expire 2021 Place 2 shall be elected to a three year term to expire 2021 2019 Mayor shall be elected to a three year term to expire 2022 Place 3 shall be elected to a three year term to expire 2022 2020 Place 4 shall be elected to a three year term to expire 2023 Place 5 shall be elected to a three year term to expire 2023 2021 Place 1 shall be elected to a three year term to expire 2024 Place 2 shall be elected to a three year term to expire 2024 Three Year Staggered Term Transition with 5 Council Members 2016 2017 2018 2019 2020 2021 Mayor Mayor Place 1 Place 1 Place 2 Place 2 Place 1 Place 3 Place 3 Place 2 Place 4 Place 4 Place 5 Place 5 Three Year Term Transition with 7 Council Members f►1D] Goi Mayor shall be elected to a three year term to expire 2019 . Place 1 shall be elected to a three year term to expire 2019 Place 2 shall be elected to a three year term to expire 2019 Place 6 shall be elected to a two year term to expire 2018 Place 7 shall be elected to a two year term to expire 2018 2017 Place 3 shall be elected to a three year term to expire 2020 Place 4 shall be elected to a three year term to expire 2020 Place 5 shall be elected to a three year term to expire 2020 2018 Place 6 shall be elected to a three year term to expire 2021 Place 7 shall be elected to a three year term to expire 2021 2019 Mayor shall be elected to a three year term to expire 2022 Place 1 shall be elected to a three year term to expire 2022 Place 2 shall be elected to a three year term to expire 2022 2020 Place 3 shall be elected to a three year term to expire 2023 Place 4 shall be elected to a three year term to expire 2023 Place 5 shall be elected to a three year term to expire 2023 2021 Place 6 shall be elected to a three year term to expire 2024 Place 7 shall be elected to a three year term to expire 2024 Three Year Term Transition with 7 Council Members 2016 2017 2018 2019 2020 2021 Mayor Mayor Place 1 Place 1 Place 2 Place 2 Place 3 Place 3 Place 4 Place 4 Place 5 Place 5 Place 6 Place 6 Place 6 Place 7 Place 7 Place 7