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10-11-2011 (City Council) Agenda Packet Wylie City Council CITY OF WY LIE NOTICE OF MEETING Regular Meeting Agenda October 11, 2011 - 6:00 p.m. Wylie Municipal Complex — Council Chambers 300 Country Club Road, Building #100 Eric Hogue Mayor M. G. "Red" Byboth Mayor Pro Tern David Goss Place 1 Kathy Spillyards Place 3 Bennie Jones Place 4 Rick White Place 5 Diane Culver Place 6 Mindy Manson City Manager Richard Abernathy City Attorney Carole Ehrlich City Secretary In accordance with Section 551.042 of the Texas Government Code, this agenda has been posted at the Wylie Municipal Complex, distributed to the appropriate news media, and posted on the City website: www.wylietexas.gov within the required time frame. As a courtesy, the entire Agenda Packet has also been posted on the City of Wylie website: www.wylietexas.gov. The Mayor and City Council request that all cell phones and pagers be turned off or set to vibrate. Members of the audience are requested to step outside the Council Chambers to respond to a page or to conduct a phone conversation. The Wylie Municipal Complex is wheelchair accessible. Sign interpretation or other special assistance for disabled attendees must be requested 48 hours in advance by contacting the City Secretary's Office at 972.516.6020. CALL TO ORDER Announce the presence of a Quorum. INVOCATION & PLEDGE OF ALLEGIANCE Colors presented by the Sons of the American Revolution PRESENTATION • Presentation by Sons of the American Revolution to Firefighter of the year, EMS Provider of the year, and Police Officer of the Year • Presentation of 1st 6 weeks Star Students: Responsibility • Proclamation for Fire Prevention Week • Presentation of Milestone Employee Anniversaries CITIZENS COMMENTS ON NON-AGENDA ITEMS Residents may address Council regarding an item that is not listed on the Agenda. Residents must provide their name and address. Council requests that comments be limited to three (3) minutes. In addition, Council is not allowed to converse, deliberate or take action on any matter presented during citizen participation. October 11,2011 Wylie City Council Regular Meeting Agenda Page 2 of 3 CONSENT AGENDA All matters listed under the Consent Agenda are considered to be routine by the City Council and will be enacted by one motion. There will not be separate discussion of these items. If discussion is desired, that item will be removed from the Consent Agenda and will be considered separately. A. Consider, and act upon, approval of the Minutes of the September 27, 2011 Regular Meeting of the Wylie City Council. (C. Ehrlich, City Secretary) B. Consider, and act upon, approval of a Final Plat for Ronald Martinez Addition, Block A, Lot 1, creating a single lot of record for commercial development on an approximate 0.3 acre Light Industrial zoned tract, located at the northeast corner of Martinez Lane and Alanis Drive. (R. 011ie, Planning Director) C. Consider, and act upon, Ordinance No. 2011-22, amending the zoning from Commercial Corridor (CC) to Light Industrial (LI) on lot 1, Block B of the Woodlake Village Addition, 12.4 acres generally located northeast of Centennial Drive and Eubanks Lane. ZC 2011-05 (R. 011ie, Planning Director) D. Consider, and act upon, Resolution No. 2011-26(R) authorizing the City Manager of City of Wylie, Texas to execute, on behalf of the City Council of the City of Wylie, Texas, the contract between the City of Wylie and Pulliam Construction Management Inc. for the renovations of the existing Public Works facility and the construction of a new Public Works Facility. (I Butters, Assistant City Manager) E. Consider, and act upon, approving the Vendor Application from the American Cancer Society Relay for Life to hold a Rally and Holiday Bazaar as a fundraiser for cancer survivors at the Bart Peddicord Community Center on November 19, 2011. (R. Diaz, Parks and Recreation Superintendant) F. Consider, and act upon, approving the Vendor Application from Boy Scout Troop 2062 to hold a dinner and an auction as a fundraiser for their Scout Eagle project at the Bart Peddicord Community Center on November 5, 2011. (R. Diaz, Parks and Recreation Superintendant) G. Consider, and act upon, approving the Vendor Application from Wylie East High School to hold a crafts booth fundraiser for WEHS Scholarship Foundation at Olde City Park on October 24, 2011. (R. Diaz, Parks and Recreation Superintendant) H. Consider, and act upon, Ordinance No. 2011-23 setting the time and place for all regular City Council Meetings in the 2012 calendar year. (C. Ehrlich, City Secretary) REGULAR AGENDA General Business 1. Consider, and act upon, a request by Skorburg Company to construct an estate residential street section on portions of the Braddock Place property that serve lots with square footage equal to or larger than 16,000 square feet. (C. Holsted, City Engineer) October 11,2011 Wylie City Council Regular Meeting Agenda Page 3 of 3 Executive Summary The City of Wylie Design Standards and Construction Details include a design for an estate residential roadway section for lots of one acre or larger. Skothurg Company has requested to construct an estate residential street section on portions of the Braddock Place property that serve lots with square footage equal to or greater than 16,000 square feet. 2. Consider, and act upon, Ordinance No. 2011-24 amending Ordinance No. 2006-32 modifying the City of Wylie Drought Contingency Plan. (C. Holsted, City Engineer) Executive Summary The North Texas Municipal Water District has requested that member cities initiate Stage 3 of the Drought Contingency Plan effective November 1, 2011. The goal of Stage 3 is a 10%reduction in water use and increased awareness in ongoing water conservation efforts. NTMWD is concerned about the declining water levels of the reservoirs and the projections that the drought will persist or intensify through December 2011. In addition to the extreme temperatures and continuing drought conditions, NTMWD currently can't pump water from Lake Texoma due to the presence of invasive zebra mussels. Lake Texoma normally provides almost a quarter of NTMWD's raw water supply. READING OF ORDINANCES EXECUTIVE SESSION Recess into Closed Session in compliance with Section 551.001, et.seq. Texas Government Code, to wit: §§ 551.071 Consultation with Attorney; A meeting with City Attorney regarding a matter(s) in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional conduct of the State Bar of Texas conflicts with the Open Meetings Act regarding: • Receive legal advice from City Attorney related to the Hanover Development Agreement. RECONVENE INTO OPEN SESSION Take any action as a result from Executive Session. ADJOURNMENT CERTIFICATION I certify that this Notice of Meeting was posted on this 7th day of October, 2011 at 5:00 p.m. as required by law in accordance with Section 551.042 of the Texas Government Code and that the appropriate news media was contacted. As a courtesy, this agenda is also posted on the City of Wylie website: www.wylietexas.gov. Carole Ehrlich,City Secretary Date Notice Removed _14(11 Wylie City Council CITY OF WY LIE Minutes Wylie City Council Meeting Tuesday, September 27, 2011 - 6:00 p.m. Wylie Municipal Complex - Council Chambers 300 Country Club Road, Bldg. 100 Wylie, TX 75098 CALL TO ORDER Announce the presence of a Quorum. Mayor Eric Hogue called the meeting to order at 6:04 p.m. City Secretary Ehrlich took roll call with the following City Council members present: Mayor Pro Tem Red Byboth (arrived at 6:35 pm), Councilwoman Diane Culver, Councilwoman Kathy Spillyards, Councilman David Goss, and Councilman Bennie Jones. Councilman Rick White was absent. Staff present were: City Manager, Mindy Manson; Assistant City Manager, Jeff Butters; Fire Chief, Randy Corbin; Police Chief, John Duscio; Finance Director, Linda Bantz; Public Services Director, Mike Sferra; City Engineer, Chris Hoisted; Wylie Economic Development Director, Sam Satterwhite; Planning Director, Renae' 011ie; City Secretary, Carole Ehrlich; Public Information Officer, Craig Kelly, and various support staff. INVOCATION & PLEDGE OF ALLEGIANCE Councilman Goss gave the Invocation and Councilwoman Spillyards led the Pledge of Allegiance. PRESENTATION • Proclamation for National Recovery Month 2011 Mayor Hogue read a proclamation naming the month of September 2011 as National Recovery Month. • Proclamation for National Night Out Mayor Hogue read a proclamation naming October 4, 2011 as National Night Out in the City of Wylie. Present for the proclamation reading was Police Chief John Duscio who invited residents to come out to Olde City Park and meet their neighbors. Many services will be provided to those in attendance including child fingerprinting and activities for the children. Food will be provided. Minutes September 27, 2011 Wylie City Council Page 1 • A Life Saving Award to Davis Bentle Mayor Hogue recognized WISD student Davis Bentle for his life-saving actions related to a car accident and fire near his home. According to Mr. Bentle, the victim of the accident could not escape the vehicle that was on fire after the accident because the seat belt would not release. Mr. Bentle used a knife to cut the belt and remove the victim, thereby saving the accident victim's life. Fire Chief Doug Kendrick assisted with the recognition and presentation, since the incident occurred in their fire district and his crews responded to the scene. • Presentation of life saving award to Jennifer Perez and James Eckert Mayor Hogue presented a life-saving award to two citizens whose quick action prevented the death of a six year old on September 4th. Five year old James Eckert discovered six year old Jayden in the pool, not breathing, and got the adult's attention, reporting Jayden didn't have on his floaties. The adults removed Jayden Thomas from the pool, not breathing and blue. Jennifer Perez began rescue breathing and CPR. In addition to the near-drowning, Jayden had a piece of hot dog lodged in his airway. Ms. Perez cleared his airway with the Heimlich maneuver, administered CPR, and he subsequently started breathing again. The patient was conscious and breathing upon transport by WFR Medic unit, and the patient was talking to the crew by the time they arrived at the hospital. The Mayor commended Ms. Perez for her life- saving administration of resuscitation, and five year old James Eckert for sounding the alarm. CITIZENS COMMENTS ON NON-AGENDA ITEMS Residents may address Council regarding an item that is not listed on the Agenda. Residents must provide their name and address. Council requests that comments be limited to three (3) minutes. In addition, Council is not allowed to converse, deliberate or take action on any matter presented during citizen participation. Bill Baumbach, residing at 505 Rustic Place, Wylie, addressed Council asking Council to be considerate of leaving the proposed 19 acres to be considered in the work session as parkland. CONSENT AGENDA All matters listed under the Consent Agenda are considered to be routine by the City Council and will be enacted by one motion. There will not be separate discussion of these items. If discussion is desired, that item will be removed from the Consent Agenda and will be considered separately. A. Consider, and act upon, approval of the Minutes of the September 13, 2011 Regular Meeting of the Wylie City Council. (C. Ehrlich, City Secretary) B. Consider, and place on file, the Monthly Revenue and Expense Report for the City of Wylie as of August 31, 2011. (L. Bantz, Finance Director) C. Consider, and place on file, the City of Wylie Monthly Investment Report for August 31, 2011. (L. Bantz, Finance Director) D. Consider, and place on file, the Monthly Revenue and Expense Report for the Wylie Economic Development Corporation as of August 31, 2011. (S. Satterwhite, Executive Director, WEDC) Minutes September 27, 2011 Wylie City Council Page 2 E. Consider, and act upon, Resolution No. 2011-23(R) authorizing the City Manager to execute an Interlocal Agreement with the City of Fate for dispatch services for a one year term beginning October 13, 2011, annually renewable at cost plus administrative fees. (R. Corbin, Fire Chief) F. Consider, and act upon, approval of a Final Plat for Aaron Davis Addition, creating a single lot of record on 4.390 acres. The property is generally located south of Parker Road and approximately 950' west of Country Club Road. (R. 011ie, Planning Director) G. Consider, and act upon, approval of a Replat for Brown & Burns Addition, Block 1, Lot 20R, a property of 0.171 acres located at 109 Marble Street; southeast corner of Marble Street and Jackson Street. (R. 011ie, Planning Director) H. Consider, and act upon, Ordinance No. 2011-21 amending Ordinance No. 2011-17 (2010-2011 Budget) for proposed Emergency Communications amendments for fiscal year 2010-2011. (R. Corbin, Fire Chief City Secretary Ehrlich noted one change regarding the City Council minutes of September 13, 2011. She noted the strike out of the wording "that would be brought back for approval at a later date" from the last sentence in Item 8 discussion (page 6). Council Action A motion was made by Councilwoman Culver, seconded by Councilwoman Spillyards to approve the consent agenda as presented with one change noted to the September 13, 2011 minutes by City Secretary Ehrlich. A vote was taken and the motion passed 5-0 with Mayor Pro Tem Byboth and Councilman White absent. Mayor Pro Tem Byboth arrived at 6:35 p.m. REGULAR AGENDA Public Hearing L Hold a Public Hearing, and consider, and act upon, amending the zoning from Commercial Corridor (CC) to Light Industrial (LI), on 12.4 acres, generally located northeast of Centennial Drive and Eubanks Lane. ZC 2011-05 (R. 011ie, Planning Director) Staff Comments Planning Director 011ie addressed Council stating that the subject property is Lot 1, Block B of the Woodlake Village Addition and located at the northeast corner of Centennial Drive and Eubanks Lane and consists of 12.393 acres. The property is currently an undeveloped lot and is zoned CC. The subject property is Lot 1, Block B of the Woodlake Village Addition and located at the northeast corner of Centennial Drive and Eubanks Lane and consists of 12.393 acres. The property is currently an Minutes September 27, 2011 Wylie City Council Page 3 undeveloped lot and is zoned CC. Access to the property will be via Centennial Drive, with the rear of the property facing Kansas City Southern Railroad. 011ie explained the applicant is requesting to rezone the property to Light Industrial (LI) District to allow for Office/Warehouse uses as outlined in Article 5 of the current zoning ordinance. A final site plan must be submitted to the Planning &Zoning Commission for recommendation and approval prior to the release of any permits. As reflected on the Conceptual Site Plan, the applicant is proposing nine (9) single story office/warehouse buildings averaging 15,000 s.f. each. The subject lot is a long rectangular shaped lot with approximately 277' of depth and is adjacent to the Atchison, Topeka & Santa Fe Railroad and is located approximately 800' feet north of S.H. 78. Access to the property is from Eubanks Lane to the west and Spring Creek Parkway to the east, with no direct access from S.H. 78. 011ie reported with no questions for staff or the applicant and no comments from the audience, the Planning and Zoning Commission voted 4-0 to recommend approval. Council Discussion Councilman Goss asked Planning Director 011ie if the Light Industrial change would allow only warehouse use for this zoning or if it would open it up to all types of Light Industrial. Mrs. 011ie replied that it would be open to any business listed, by right, under Light Industrial. If the requirement under Light Industrial included an SUP, that would be required. She explained some of those type uses included office warehouse, financial institutions, recreation, with SUP, health club, retail and minor auto repair, and mini warehousing. Councilman Goss noted that he had concerns regarding mini warehousing being allowed by right as there were multiple mini-warehouse units in the City. Councilwoman Culver asked if screening was required in this zoning or could items be left on the property without screening. Mrs. 011ie replied that zoning did require screening either by another building or material screening. 011ie noted, because of the adjacency to the commercial corridor, this area will require complete screening of all outside materials. Mayor Pro Tem Byboth asked if this application could be done under Planned Development to insure the property stayed as approved. 011ie replied the applicant wished to stay with straight zoning rather than planned development because of the building materials the applicant wished to use. Planning Director 011ie suggested that if the Council wished, they could amend the zoning to require an SUP for all mini-warehousing in Light Industrial. Public Hearincl Mayor Hogue opened the public hearing on Zoning Case #2011-05 at 6:36 p.m. asking anyone present wishing to speak to come forward and keep their comments to three minutes. No citizens were present wishing to address Council during the public hearing. Mayor Hogue closed the public hearing at 6:37 p.m. Council Action A motion was made by Mayor Pro Tem Byboth, seconded by Councilman Goss to amend the zoning from Commercial Corridor (CC) to Light Industrial (LI), on 12.4 acres, generally located northeast of Centennial Drive and Eubanks Lane (ZC 2011-05). A vote was taken and the motion passed 6-0 with Councilman White absent. Minutes September 27, 2011 Wylie City Council Page 4 General Business 2. Consider, and act upon, approval of the Financial Management Policies. (L. Bantz, Finance Director) Staff Comments Finance Director Bantz addressed Council stating that the overriding goal of the Financial Management Policies is to enable the City to achieve a long-term stable and positive financial condition while conducting its operations consistent with the Council-Manager form of government established in the City Charter. The basis for the City's Financial Management Policies includes integrity, prudent stewardship, planning, accountability, and full disclosure. Bantz reported the policy included the recommendation from the bond rating agencies council to set the fund balance at 25%with 20% being a cause of concern. Council Action A motion was made by Mayor Pro Tem Byboth, seconded by Councilwoman Culver to approve the Financial Management Policies as presented. A vote was taken and the motion passed 6-0 with Councilman White absent. 3. Consider, and act upon, Resolution 2011-24(R) approving the current Investment Policy as required by the Texas Government Code, Chapter 2256, Public Funds Investment Act, Subchapter A—Authorized Investments for Governmental Entities. (L. Bantz, Finance Director) Staff Comments Finance Director Bantz addressed Council stating that the Texas Government Code requires that the governing body of an investing entity review its Investment Policy not less than annually. The governing body should adopt a written instrument by rule, order, ordinance, or resolution stating that it has reviewed the Investment Policy and that the written instrument so adopted shall record any changes made to the Investment Policy. The current Investment Policy was approved December 12, 2006. No changes are currently being made to it. Council Action A motion was made by Councilman Goss, seconded by Councilwoman Spillyards to approve the Investment Policy as required by the Texas Government Code, Chapter 2256, Public Funds Investment Act, Subchapter A-Authorized Investments for Governmental Entities. A vote was taken and the motion passed 6-0 with Councilman White absent. 4. Consider, and act upon, Resolution 2011-25(R) committing certain funds as required by Government Accounting Standards Board Statement No. 54. (L. Bantz, Finance Director) Minutes September 27, 2011 Wylie City Council Page 5 Staff Comments Finance Director Bantz addressed Council stating that generally accepted accounting principles that the City follows are regulated by the Government Accounting Standards Board (GASB). In 2009 GASB issued a new accounting standard for presentation of equity in the general purpose financial statements. It is required to be implemented during Fiscal Year 2010-11 for our City. GASB 54 provides the Council the ability to formally commit certain revenue sources. It also requires the Council to delegate authority to certain City staff to assign revenue sources in certain funds. Council Action A motion was made by Councilwoman Culver, seconded by Councilman Jones to adopt Resolution No. 2011-25(R) committing certain funds as required by Government Accounting Standards Board Statement No. 54. A vote was taken and the motion passed 6-0 with Councilman White absent. 5. Consider, and act upon, the appointment of two committee members to the City of Wylie City Council Subcommittee to represent the City of Wylie in meetings with the Wylie Independent School District City/Schools Partnerships Committee. (M. Manson, City Manager) Staff Comments City Manager Manson addressed Council stating that in 2005, the Wylie Independent School Board formed an advisory standing committee called City/School Partnerships. The committee consists of three WISD Board of Trustee members and three City of Wylie Council members. The purpose of the committee is focused on discussing existing and new partnerships between the Wylie Independent School District and the City of Wylie. Member terms per Ordinance No. 2005-55, establishing the committee, are concurrent with terms of office for Council members. Therefore Mayor Hogue and Councilman White's 2011 re-election requires those positions to be re-appointed or a new Council member to be appointed to the vacancies. Mayor Hogue reported the sub-committee, of which he is a member, holds quarterly meetings to discuss items affecting both entities. He reported that currently Councilwoman Spillyards serves as the chairman for the City. Councilman Goss commented that he had requested for some time to serve on this sub-committee. Mayor Hogue commented that he too would like to continue to serve. Mayor Pro Tem Byboth asked if anyone had contacted Councilman White to see if he wished to serve again. Mayor Hogue stated that he had not. Council Action A motion was made by Councilwoman Culver, seconded by Councilman Jones to appoint Mayor Hogue and Councilman Goss to serve on the City of Wylie City Council Subcommittee to represent the City of Wylie in meetings with the Wylie Independent School District City/Schools Partnerships Committee. A vote was taken and the motion passed 6-0 with Councilman White absent. READING OF ORDINANCES City Secretary Ehrlich read the caption to Ordinance No. 2011-21 into the official record. Minutes September 27, 2011 Wylie City Council Page 6 WORK SESSION • Discuss the proposed childcare program for children ages 7-11 at the Wylie Recreation Center. (R. Diaz, Parks and Recreation Superintendant) Parks and Recreation Superintendant Diaz addressed Council presenting a proposal to create a childcare program for children ages 7-11. He reported the proposal includes an area for this age group with activities such as games and videos for the attendees to use. He reported the proposed times would be split into school year and summer with the school year times set at Monday-Thursday 4:00 — 9:00 p.m., Friday 4:30 — 7:30 p.m., and Saturday 9:00 a.m. — noon. Open schedule during the summer (June, July & August) included Monday-Thursday 7:00 a.m. — 11:30 a.m. and 4:00 p.m. — 9:00 p.m., Friday 7:00 a.m. — 11:30 a.m. and 4:30 p.m. — 7:30 p.m., and Saturday 9:00 a.m. — noon. He reported a fee of $5.00 would be charged to each member for a maximum of a two hour stay. He noted that children ages 7-11 could currently participate in open climb and open gym at no charge, and registered activities were also an option for parents; however, the childcare option would include direct supervision while parents participate in the Recreation Center. Diaz reported the costs to provide this childcare service would be $50,475 which included the purchase of equipment and games and the cost of staffing the program. Currently the proposed area is rented and total revenue from rentals from April to September of 2011 totaled $17,812.60. At the proposed $5.00 fee per day, the potential annual revenue based on five children per hour would be $32,000. Diaz reported currently there was no charge for daycare service of children under the age of 7 years, based on the business plan established prior to opening. Staff was recommending the $5.00 fee be charged to all members and day pass participants for the 7-11 age groups to recover some of the expense of the new program. Council members directed staff to look at charging the fee to all recreation club members with the exception of annual members and setting the program for Tuesday, Thursday and Saturday, beginning in January 2012 in order to allow those who have previously rented the area to be able to utilize it. Council also directed staff to come back to Council and report the usage after the first three months (March 2012) and again in June to see if the program is attracting enough attendees. • Consider issues surrounding the use of±19 acres owned by the City of Wylie for commercial purposes. (S. Satterwhite, WEDC Executive Director) Wylie Economic Development Corporation Executive Director Sam Satterwhite addressed Council stating that the WEDC board wished to start a dialog regarding property located on 544. The reason for the dialog over the next few months is to obtain direction from Council regarding the installation of a sewer line to serve the commercial property on the north side of 544 from Arby's to Sanden Boulevard and/or Muddy Creek. Satterwhite noted that the WEDC board felt the property would develop faster if the utilities were in place. Satterwhite explained that the 19 acres in tonight's discussion is part of the Wells Property. There has been some discussion about leaving this property for recreational purposes. He explained that the property was purchased from the Wells family in three tracts: 19 acres facing 544, a 66 acre tract to the north and to the west of City Hall, and across FM 1378 is the 169 acre tract. Satterwhite explained that the original intent was to purchase the land at $6.2 million Minutes September 27, 2011 Wylie City Council Page 7 from the Wells family and finance through the Trust for Public Land. Council decided to purchase the land through the issuance of Certificates of Obligation in 2005. There were some misconceptions that by deed restriction, the land must be used for a public purpose. That however is not the case since the property was not financed through the Trust for Public Land. The only restrictions with the use of this land due to the purchase through Certificates of Obligation are that any uses not jeopardize the tax exempt status of the bonds. Satterwhite stated that it was the opinion of the WEDC board and him that the property would be better used for commercial property as the property was facing a six lane highway and would not be a good fit for a park or other recreational site for children. He explained however that it was a perfect site for a commercial tract. He stated that staff was waiting for an opinion from bond council as to the uses of the property within the CO's. He stated that any proceeds from the sale of the property for commercial use would be used to pay back the financed certificate obligations. Satterwhite noted three ways in which this property could be sold for commercial use: 1. Under the guidelines of Chapter 272 of the Local Government Code, sell the 19 acres through a sealed bid process which affords the opportunity for the Council to accept the highest bid or reject all bids for any reason whatsoever; and 2. Create a Reinvestment Zone to convey the property outside the requirements of Chapter 272, establishing Zone objectives most likely surrounding economic development objectives (i.e. minimum new valuation, minimum employment created, etc.); and 3. City of Wylie agrees to sell at less than fair market value under the terms of a Chapter 380 Agreement which would most likely involve an incentive package to the developer/end user. Satterwhite asked for direction from Council regarding the use of the 19 acre tract. Direction from Council was to explore the sale of the property for commercial use and to explore ways to connect the trails through the property to the Municipal Complex. • Presentation of Options to Hold the City of Wylie General Election pursuant to S.B. 100. (C. Ehrlich, City Secretary) City Secretary Ehrlich addressed Council explaining that at the August 23rd Council meeting, Council had requested that direction be tabled until some firm numbers came back from Collin County Elections Administrator regarding holding elections starting in May 2012 with the passage of Senate Bill 100 and keeping three year terms holding elections annually in May. Ehrlich reported that since that time Wylie Independent School District Board of Trustees had opted to move their elections to November in even numbered years only, and changing their terms from three to four years. This re-opened another option for the City to contract with Rockwall County who previously had indicated they could hold elections for the City but due to boundaries for WISD not being in Rockwall County were unable to conduct elections for the school district. Ehrlich reported the final numbers received from Rockwall County to hold the City elections in May using the same polling places and servicing all three counties for Wylie voters was $9,357. This contracting proposal had been accepted by the Rockwall County Commissioners. Collin County Elections Administrator Sharon Rowe had sent a letter advising that the numbers originally given to each jurisdiction for "worst case scenario" were still firm at this time. Rowe Minutes September 27, 2011 Wylie City Council Page 8 was also asking for a commitment from each jurisdictions as to their option for holding elections by October 1, 2011 and would send a memorandum of understanding to each jurisdiction once it was determined how many cities would still be opting for the May 2012 uniform election date. She also indicated that if the MOU was executed by each governmental body by November 16, 2011 the charge to purchase machines would be required at that time and if the entities were able to cancel their election in May 2012, due to un-opposed candidates, the cities would still be required to pay for and retain the machines. Ehrlich reported due to WISD deciding to opt for November elections, the cost estimate for CCEA had gone from $25,756 to $44,776 for the May 2012 election cycle. Ehrlich reported the services offered by each county administrator were the same with the only difference being the confirmed cost at this time; part of that difference was due to Rockwall County renting machines and handling some of the tabulation and centralized costs while Collin County purposed to purchase the machines and contract some of the costs of tabulation and centralized fees to an outside vendor. Direction from council was to bring a contract with Rockwall County Elections Administration to Council prior to the May 2012 election for consideration of approval. • Engineering Department Overview. (C. Holsted, City Engineer) Mayor Hogue announced, due to time restraints the Engineering Department Overview would be rescheduled for the October 25, 2011 regular meeting of the Wylie City Council. Mayor Hogue convened into executive session at 8:55 p.m. reading the exceptions to be discussed. EXECUTIVE SESSION Recess into Closed Session in compliance with Section 551.001, et.seq. Texas Government Code, to wit: §§ 551.072 Deliberation Regarding Real Property; Closed Meeting; Pursuant to Section 551.072, Texas Government Code, deliberation on certain matters concerning real property. • Discussion regarding acquisition of Brown Street West ROW. §§ 551.071 Consultation with Attorney; A governmental body may not conduct a private consultation with its attorney except: (1) When the governmental body seeks the advice of its attorney (A)Pending or contemplated litigation;or (B)A settlement offer;or (2) On a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter. • Discussion with City Attorney regarding the purchase of land and an easement and settlement of the lawsuit in Cause No. 0012792011 pending in County Court at Law No. 1 of Collin County, Texas in the case styled City of Wylie, Texas v. Melissa Johnson a/k/a Melissa Ingram. Minutes September 27, 2011 Wylie City Council Page 9 RECONVENE INTO OPEN SESSION Take any action as a result from Executive Session. Mayor Hogue reconvened into open session at 9:25 p.m. General Business 6. Consider, and act upon, approval of the purchase of land and an easement and settlement of the lawsuit in Cause No. 0012792011 pending in County Court at Law No. 1 of Collin County, Texas in the case styled City of Wylie, Texas v. Melissa Johnson a/k/a Melissa Ingram and to authorize the City Manager to take all actions and to execute all documents necessary to effectuate the same. Council Action A motion was made by Councilwoman Spillyards, seconded by Mayor Pro Tem Byboth to approve the purchase of land and an easement and settlement of the lawsuit in Cause No. 0012792011 pending in County Court at Law No. 1 of Collin County, Texas in the case styled City of Wylie, Texas v. Melissa Johnson a/k/a Melissa Ingram and to authorize the City Manager to take all actions and to execute all documents necessary to effectuate the same. A vote was taken and the motion passed 6-0 with Councilman White absent. ADJOURNMENT With no further business before the Wylie City Council, a motion was made by Councilman Goss, seconded by Councilman Jones to adjourn the meeting at 9:27 p.m. A vote was taken and the motion passed 6-0 with Councilman White absent. Eric Hogue, Mayor ATTEST: Carole Ehrlich, City Secretary Minutes September 27, 2011 Wylie City Council Page 10 Wylie City Council AGENDA REPORT CITY OF VVY IE Meeting Date: October 11, 2011 Item Number: B. Department: Planning (City Secretary's Use Only) Prepared By: Renae' 011ie Account Code: Date Prepared: September 27, 2011 Budgeted Amount: Exhibits: 1 Subject Consider, and act upon, approval of a Final Plat for Ronald Martinez Addition, a property of 0.3188 acres located on the northeast corner of Martinez Lane and Alanis Drive. Recommendation Motion to approve a Final Plat for Ronald Martinez Addition, a property of 0.3188 acres located on the northeast corner of Martinez Lane and Alanis Drive. Discussion The applicant is proposing to subdivide this parcel out of the existing E.C. Davidson Survey. This parcel as currently slated to be developed as a single story 1,600 square foot building housing a custom cabinetry shop. The property is zoned Light Industrial (LI)District. The Final Plat complies with all applicable technical requirements of the City of Wylie. Planning Commission voted 4-0 to recommend approval of the Final Plat. Approved By Initial Date Department Director RO 09/27/11 City Manager 1 0/7/1 1 Page 1 of 1 �\- / APPROVAL BLOCK PROPERTY OWNER'S CERTIFICATE q\ LEGEND § §° s•M1x=Weaar:w ` icF. CONTROL Roo MONUMENT OUND 14 'RECOMMENDED FOR APPROVAL" COUNTY OFCOLLIN 5 d ).i. described in WHEREAS.RONALD F.MARTINEZ,BEING the OWNER o a 0.3188 acre tract o situated in the E.C.D of dnvidson Survey. NE Cha rman Pann nags&Zonng Commsson Date deetract d 10 No.267,aCty Wylie.C County, g l 0359 ocre C Texas,soid 0.3188 ocre �-STE urnv Twos LL'N / Cr1y N'.Tex tract metes and bounds.26 follows: 9 Y ws� utir being Y Y 2-inch iron rod found for the northwest corner of so.0.359 ocre troct Ond the southwest corner Block B.Creekbend IndustrIol Pork.1ST Revision.on oddltion to the City of Wylle.os recorded In Coblnet L. _ •5 a IL u*I�ry EASEMENT AP FOR CONSTRUCTONof Lot /Records.Collin County. exos sod corner being the sl g o y a Martnez Lone o 50 nwwww on' w',° —� w=l[wio PM ypc STATE PLANE COORDINATES y Y Texas Dote f t 9 -of- y tract THENCE South 89 degrees 08 minutes 26 s Dost.with the common boundary line of sold 0.359 acre troct ond e-� u=waxuaELM Wyl e, 5/5-inch v Marcos and the n0FLOWC5L corner of a called 1.63 acre tract of land aesibea in deed to Marn F.Martinez et al.as Vl4NITY MAP recorded in Volume 5264. 8 aT of said Deed Records. ALE IN FEET rvTs "ACCEPTED' THENCE South 00 degrees 58mnutes 1 s West,with the c dry line o d 0.359 a act and /2- Clerk's Document 92-0060525 of said Records ond the northeost corner of o called 0.072 ocre tract of lond I 1 Mayor,City of Wylie,Texas Date descriPed in said corner b d to the City the norm Wylie'as c recorded r of Al County Lane.a 5 Document it, -of- T of sail Deed Records. sects n of Wylie, Ito 1 I THENCE North 89 degrees 08 minutes 25 seconds West,with the north boundary eh d 0.072 acre tract and the ,e undersigned, e GltnesR"Na o of the of WON`an addhian to was t T f tract of lnorth ri9ht-of-way line of said Alonis Lane,a distance of 84.02 feel to and 1/2-inch in deed m the y on rod with cop of wNle, Texos,hereby certifies that the foregoing ns recorded n Volume 5591. 9 5 a so id Deed Records: Council,by forrool action,then ond there accepted the dedication of the streets,alleys, pork,easements,NUT,2.1.222.2.and',voter and sewer ond THENCE NOON)42 with a corner of soid Iupon said arized the y to note the acceptanceown and set forth thereat e;i2� signingby s name as herein sabseribed, the north comer of said 0020 acre tract.said comer being the west boon Y e of 1 LOT O Wdness y and the f D.28,, said 0359 acre tract for — SST REVISION P Kegreessecon ract ond the east right-of-way line of said Martinez Lane,a distance of a,6 feethe west to the PRINT line OF BEGINNING ANre D GONTNNING RtPm , acre of lond. y ;Ie�Texos NOW,THEREFORE,HEREFORE square �l or B KNOW ALL MEN BY THESE PRESENTS. SPC THAT,RONALD F.MARTINEZ.does hereby adopt this plot 1 E z.5s4.es 1 - _ wNe public 8L11711C use forever.the streets.are dedlcoted for street purposes.,e eosements o.public use oreos.os shown,ore dedicoted.for the public 1 S 89'08'28"E sreLR.. zm` '�-'re ocope — useony ore 311818.or other improvements or `"' 97 30' improve se for the purposes indicated on thls plot No roved by the City Council of the Clty of it in lands..eosements,If .In addiDon, POINT OF t"P.R:�OT or asing e ubhcs an ets e ments moy be aide es Ue colts to se to P ruo,lar miNues,said u y pubNc uuNDes ommodation of all public utnities oner buminate EN'° fig ea me s the easement ser utual e °and acc being n e BEGINNING to the public's a City of Wylie use thereof, u SURVEYOR'S CERTIFICATE e City of Wylie an utility entities shall have the right to re parts of any b Il( 1 KNOW ALL MEN Dv THESE PRESENTS. buildings,fences,trees.shrubs other improvementsheirrespective or growths whichsaid e sernery way endanger or tie and with the construction.maintenance, Y t yet t spe e easements a 'c utility entities shall al oll times hove.e and to 1 y r too P i t P 8 t g hen e g meson from for THAT,I Robert he reconstructing.inspecting.patrolling, .8 reading meters,ond .9 to or hereby removing a systems w c s'ty any t' procuring P anyone 01 E.C. DAVIDSON SURVEY M V0L o_re_e cT TeT) Ordln therean eor re properly bra!Nylleender my personal supervision in accordance with the Subdivision The plat approved to all platting ordinances,rules,regulations and resolutions of the y y Texas. 80_ A-267 WITNESS, y and,this the y 2011. 1 Z .4 m 'Z GIVEN U - Y SEAL OF OFFICE THI THE DAV OF 201E B I S M$ NFL"15RccTNscn 4_ _ o'_ eN aRc W 1 d„ = LOT 1,reBLOCK A Yo'r°'oROBERT MYERS RONALD F.MARTINEZ K 1A!!! o STATE OF TEXAS No.3963 ND su RVE ore r_aN STATE OF TEXAS 4 2 R31 AC. N PROFESSIONALREGISTERED A.e�396 COUNTY OF COLLIN§ d STAT F TEXAS e Before me,the undersigned authority,a Notary ublic in and for the Slate of Texos,on this ay 1 $ suaV acknowledged to me that.executed the some P for the purpose and considerations therein expressed,personally d re COUNETYOOF COLLIN§ Ronald F Mortinef,known to me to be the person whose name is subscribed to the 1 Before me.the undersigned authority, dry Pub Given under y and and seal of office,this the y 2011. Registered Professional N 4237'14"W to Pe the person whose name is suPscriPed to the me that he executed the same for the purpose and rons•Ienemuuns thereto expressedstrument and `dyedmm J 27 53 Dre.ceT 5z8).1 t"°o:re$,,. Given under r and and seal of office,this the y f 2011, Nn r ubllc in and for me Stole of Texos w�eH"G tit,Oac'e eo> / — _ My Comm,sslon Expires On: / 1 and for me stale m _/ `° A`� N 89'08'25"W v ommissian Expires On:02/14/2015 s Twuf c (VOL. fa.2.1 xf r o < 84.02 f .re.. 11.,P00,, `'A' , ",_} S eA 'AP ( - PF-:. ,Eli '� L3jww 1 (a OF,92- 52m f 2.562..361 Dread O ren, Sz5) NL ddition Selling y metes e a rdinance and Stole Low.and is subject to ALANIS LANE and withholding of utilities and fines n20'6Aw1 D'lding Permits. FINAL PLAT RONALD MARTINEZ ADDITION R.C.MYERS SURVEEYING,LLC3400 OXFORD DRIVE LOT 1, BLOCK A RON/LETT.ff%75088 (214)532-0636 BEING FAX(972)412-4875 EMAIL rcros, v gegmalLcom 0.3188 ACRE NOTE. SITUATED IN THE Bearings and coordinates posted hereon 72TONEZ E.C.DAVIDSON SURVEY, A-267 are posed on Texas State Plane 2IE01%RovGggo sage CITY OF WYLIE WYL - COLLIN COUNTY, TEXAS NADA pores.a eh Central zone 4202, RS Lambert Conformal Conic Feet BESTER DESIGN CONTACT:B RESOURCES,LLC (TX83-NCF)n o ENGINEERING CONCEPTS ON DESIGN, LE orvawmwxo/=rewocm xlnr,Aaoxlorvm/coxsmmemlox eorewcos (2,41n3-6460 mr Wylie City Council CITY OF WYLIE AGENDA REPORT q Meeting Date: October 11, 2011 Item Number: C. Department: Planning (City Secretary's Use Only) Prepared By: Renae' 011ie Account Code: Date Prepared: October 3, 2011 Budgeted Amount: $ Exhibits: Four Subject Consider, and act upon, Ordinance No. 2011-22 amending the zoning from Commercial Corridor (CC) District to Light Industrial (LI) on Lot 1, Block B of the Woodlake Village Addition, 12.4 acres generally located northeast of Centennial Drive and Eubanks Lane. ZC 2011-05 Recommendation Motion to approve Ordinance No. 2011-22 amending the zoning from Commercial Corridor (CC) District to Light Industrial (LI) on Lot 1, Block B of the Woodlake Village Addition, 12.4 acres generally located northeast of Centennial Drive and Eubanks Lane. ZC 2011-05 Discussion Owner: Mr. C.T. Beckham Applicant: Alan Adkins, Cinnamon Teal Zoning Case 2011-05 requires an Ordinance to amend the zoning accordingly in the Official Zoning map of the City; and providing a penalty clause, a repeal clause, a savings clause, a severability clause, and an effective date. The 12.393 acre tract is located at the northeast corner of Centennial Drive and Eubanks Lane and is undeveloped. The above described property shall be used only in the manner and for the purposes provided for in the Comprehensive Zoning Ordinance of the City, as amended herein by the granting of this zoning classification. Approved By Initial Date Department Director RO 10/03/11 City Manager 10/7/11 Page 1 of 1 ORDINANCE NO. 2011-22 AN ORDINANCE OF THE CITY OF WYLIE, TEXAS, AMENDING THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF WYLIE, AS HERETOFORE AMENDED, SO AS TO CHANGE THE ZONING ON THE HEREINAFTER DESCRIBED PROPERTY, ZONING CASE NUMBER 2011-05, FROM COMMERCIAL CORRIDOR (CC) DISTRICT TO LIGHT INDUSTRIAL (LI) DISTRICT; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Planning and Zoning Commission and the governing body of the City of Wylie, Texas, in compliance with the laws of the State of Texas with reference to the amendment of the Comprehensive Zoning Ordinance, have given the requisite notices by publication and otherwise, and after holding due hearings and affording a full and fair hearing to all property owners generally and to owners of the affected property, the governing body of the City is of the opinion and finds that the Comprehensive Zoning Ordinance and Map should be amended; NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1: That the Comprehensive Zoning Ordinance of the City of Wylie, Texas, be, and the same is hereby, amended by amending the Zoning Map of the City of Wylie, to give the hereinafter described property a new zoning classification of Light Industrial (LI), said property being described in Exhibit "A" (Filed Final Plat), Exhibit "B" (Location Map), and Exhibit"C" Conceptual Site Plan attached hereto and made a part hereof for all purposes. SECTION 2: That all ordinances of the City in conflict with the provisions of this ordinance be, and the same are hereby, repealed and all other ordinances of the City not in conflict with the provisions of this ordinance shall remain in full force and effect. SECTION 3: That the above described property shall be used only in the manner and for the purposes provided for in the Comprehensive Zoning Ordinance of the City, as amended herein by the granting of this zoning classification. SECTION 4: Any person, firm or corporation violating any of the provisions of this ordinance or the Comprehensive Zoning Ordinance, as amended hereby, commits an unlawful act and shall be subject to the general penalty provisions of Section 1.5 of the Zoning Ordinance, as the same now exists or is hereafter amended. SECTION 5: Should any paragraph, sentence, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of this ordinance as a whole or any part or provision thereof, other than the part so declared to be invalid, illegal or unconstitutional, and shall not affect the validity of the Comprehensive Zoning Ordinance as a whole. Ordinance No. 2011-22 Woodlake Village ZC 2011-05 SECTION 6: This ordinance shall be in full force and effect from and after its adoption by the City Council and publication of its caption as the law and the City Charter provide in such cases. SECTION 7: The repeal of any ordinance, or parts thereof, by the enactment of this Ordinance, shall not be construed as abandoning any action now pending under or by virtue of such ordinance; nor shall it have the effect of discontinuing, abating, modifying or altering any penalty accruing or to accrue, nor as effecting any rights of the municipality under any section or provisions of any ordinances at the time of passage of this ordinance. DULY PASSED AND APPROVED by the City Council of the City of Wylie, Texas, this 11th day of October, 2011. Eric Hogue, Mayor ATTEST: Carole Ehrlich, City Secretary DATE OF PUBLICATION: October 19,2011,in the Wylie News Ordinance No. 2011-22 Woodlake Village ZC 2011-05 .— \1:•' \--- )••• ''''''' ,c,.••..,..,... EUBANKS cys.,, 7.1 • —. N 7, -012551',_-- ee—e• - ,..,_.,:_,,,,,,_..--A ._,„„ :,.:, \ i t 4 : , L , 1. - a .=-• . .ge;`,01-:§.1 axe; 1 litl 4 tT3•,1 . 1 , , '.--.'",".• I I±1 tl '‘,'\1`"'\`,,* k I• \ - 1,,V,B.aji.!...„4,8,x V.,13,8,a: 6,,e.et,t„2,$,ii: ttli I 1 x ilk I * I 11 1 . r- X ''' i N .•••• :ENE I 11C-\\: \\\::: i :-z1-144.::. ' ,\' ._ a.._i 4te a.g Ir.al 2- ; it ,t, 14: ) .•148-,11. iri re :.- ,.'1 \\!,,,. ,,\ `,..es, •••• I. ; . 1 M fit—I ' la 1 ''''',' \ ° ri , -•R i4 ! '-, 1 1 x •ji,' ;, \ "„\ \ , 1 % uel ..,,.... , ; 111111 11111711(11111 1 'ii 4 , \ / 1 __„.1 \ 0,,, 4JI 4 sc....... 5.:1 , ''', :VA --", \ % ..---li .2- \;f-0\ \n i 1 1 1 •P : 1 t-- j j7'.1, Ai r riU11 !, , zl : 1 '; 1 %, '!.,Qt• \ ";. pi \ iiiii' i tio? -..„.., (11111%." ! 1 , ''• ..y.,,, ,, •,\ \ \ 4 A i 1 w-I II:III7'71, IiII;071 f 1 1 1;11 'i ''• i 11-V v...,7 A \ 1-, . I . ,,. .., .. , • 1 . cS".•,,..; ---i--- s, ,s 1'' M''' Z -n I -1 1 •%- '1- `VA pir ''', w•-...-—Mom— i \ Ivo glir .., lle ‘,?-4. 6- 1 _ , „ N..-1 isio l'.• .2 '1 .. 14, . \ 74.., to ..a, r , ll q.. ... El g ili \I,1 ',.• ,;. 1 '.1 V.. , a , I 1 , 41 , „- , _ I-1 o• :.i- ,,,,,,1 !,- v., 7. ." , al • ", i t 1 2' SPRING CREEK PARKWAY woo.oe i' I eiz32 e...xel --,,k Reirmcos U.. i-•*a Par aga...m7 FRANCiSCO CC 1.4 ENNA SI.NVEV POST NO.see 2 --. 0,...,4., ,......- FINAL PLAT CITY OF WYLIE , WOODLAKE VILLAGE COLLIN COUNTY,TEESS PAWANVinkeVtann 140 7 C.4.0•0 bv CLIENT,CEPITIMMTEL ARAPAHO DEVELOPMENT VIENTLINt III &Associatss,ci . rue SMK, WO=3,3. 63.295 ACRES ST20 LJIJ MVP?. SUITE MD DALLAS,TEXAS TS240 I Pr DIKINO 4n.04-1,02 l2/4)4$6.1.90.1 raga a,41.1 ara Vic..1,1.74 , .-.... i i V i i Lii I EfiliXa I111a I� 1ai ,„7,,,_;F°'* -'4,-'-,'-,'( r+ Ti*0 4.r70,\. irktoti 1.1:?,',„‘"7,4-'4,*, ,1, H. ..,.a.,, 3 Subject ,---- Property y� 0 11 ,...,..,s..',,_ 1111111 - liar ,. __ ._..- I '.0"- , ----..--, Al ' ' ANIII1 I ., i ii In 1 State Hi:hwa No. 78 r11111 ROME Ili i irgomiginuturim, MIIIIIIIMErs al l..-a.fross mamas ma iti a i oimram. weighs r111111111101Iiiiiiiiiiiiint% ill 11111 illiniumistaitioikftr umnujiffir imin 011011. .......lign r . — . iiiiii 1 a a a ma iligui, mil . ...,. r.:01121. limrAe-4----- .81 UHin 77 # . ' limn ■ Mak -£umHtuuuuil!rufuflr III Ijifiiiir IT 41114 vritmatallrilitunurnme I II inailit WAX igut111111.1111111111_,_inal II J. -111 ; im,f r. 1 Ihllm; impi eliniiiirunium a I.. - am,ELBeirom la ri ,14 Wm: reI in II dif III 'Mini lialuai II 1 II u= LOCATION MAP ZONING CASE #2011-05 EXHIBIT " B " ,gug EUBANKS LANE ' 1 1 C-g\ ggg-\\I\ LE L 1 U i rg L • LE -\\ \ I :°•,, , L\ ". 1 11\Kggg\C1/4 '9i \\\/, 1 g,7_,.\1/4: ‘L,----' •,, •K ‘ § \ g 1 1 % t \ tL • g g 1 • §,, 1, , 1§ ' dd d gt - §gg--- g"- . g. " g - • 1 7,„;•.... !ggig,grgi P.:.- pgsg',4111 * - A' ‘ 1 .g.• - ;..; Ms',,,,1 gs....:K.Kir g,39,, 0 i eg u4• '.. rig it'g § t ' 1 1 'g to g .. ..: ovi IIKIVTIE. t ii5 it It-sgsm ., MS Vie t P'' ii § 5 1 0 •1 \ \i' ' ‘; g 1 1 , . 1 ' \ \ 1,8.3 I I I ill il rill 1:\ k \ \ ..3 etoosi g LKWILIVUE 0!"1- -1,iii. .. ,FF-gi ' I 111 .1 I lq g• FFIC . % g , II • II ' Wylie City Council CITY of WYLIE AGENDA REPORT Meeting Date: October 11, 2011 Item Number: D. Department: CM (City Secretary's Use Only) Prepared By: Jeff Butters Account Code: Date Prepared: 08-30-2011 Budgeted Amount: $NA Amended Consolidated Fee Exhibits: Ordinance Subject Consider, and act upon, Resolution No. 2011-26(R) authorizing the City Manager of City of Wylie, Texas to execute, on behalf of the City Council of the City of Wylie, Texas, the contract between the City of Wylie and Pulliam Construction Management Inc. for the renovations of the existing Public Works facility and the construction of a new Public Works Facility. Recommendation Motion to approve Resolution No. 2011-26(R) authorizing the City Manager of City of Wylie, Texas to execute, on behalf of the City Council of the City of Wylie, Texas, the contract between the City of Wylie and Pulliam Construction Management Inc. for the renovations of the existing Public Works facility and the construction of a new Public Works Facility. Discussion Last fall the Wylie City Council approved a water rate structure which would fund a new public works facility. At the August 9th City Council meeting Council interviewed the top three construction firms and choose Pulliam Construction Management Inc. as the top firm for the Public Works Facility project. Staff has negotiated a contract with Pulliam Construction Management Inc. In order to satisfy the Local Government Code this resolution must be passed so that we can bring the contract to Council for consideration. Approved By Initial Date Department Director JB 09/08/11 City Manager IIII 10/7/11 Page 1 of 1 RESOLUTION NO. 2011-26(R) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, HEREBY AUTHORIZING THE CITY MANAGER OF THE CITY OF WYLIE, TEXAS, TO EXECUTE THE DESIGN/BUILD CONTRACT WITH PULLIAM CONSTRUCTION MANAGEMENT, INC. FOR THE PUBLIC SERVICES CAMPUS FOR WYLIE, TEXAS. WHEREAS, the City Council of the City of Wylie, Texas ("City") has investigated and determined that the procurement procedure that will provide the best value for the design and construction of the City's Public Services Campus ("Project")is a Design/Build Contract; and WHEREAS, the City's Engineer is a full-time employee of the City; and WHEREAS, the City evaluated statements of qualifications and selected a design-build firm in two (2)phases; and WHEREAS, the City prepared a request for qualifications and a design criteria package for the Project; and WHEREAS, Pulliam Construction Management, Inc. ("Pulliam") certified to the City that each engineer or architect that is a member of its team was selected based on demonstrated competence and qualifications in the manner provided by Section 2254.004, Texas Government Code; and WHEREAS, the City evaluated the statements of qualifications and selected Pulliam since it offered the best value for the City on the basis of the published selection criteria and on the City's ranking evaluations; and WHEREAS, the City has investigated and determined that it has complied with all requirements set forth in Chapter 271, Texas Local Government Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1: The City Manager of the City of Wylie, Texas, is hereby authorized to execute, on behalf of the City Council of the City, the Design/Build Contract awarded by the City Council for the Project to Pulliam, a copy of which is attached hereto as Exhibit "A" and incorporated herein for all purposes ("Contract"). SECTION 2: The inspection services, the testing of construction materials engineering and the verification testing services necessary for acceptance by the City of the Project to which Resolution No.2011-26(R) Design/Build Contract(Pulliam) Page 1 the Contract relates shall be done independently from, and are not a part of, the Contract in accordance with Chapter 271 of the Texas Local Government Code. SECTION 3: This Resolution shall take effect immediately upon its passage. RESOLVED, THIS THE 11th day of October, 2011. Eric Hogue, Mayor ATTESTED TO AND CORRECTLY RECORDED BY: Carole Ehrlich, City Secretary Resolution 2011-24(R)—Design/Build Contract(Pulliam) Page 2 597993.1 EXHIBIT "A" Pulliam Contract Resolution 2011-24(R)—Design/Build Contract(Pulliam) Page 3 597993.1 Orh .1::AIA Document A141 TM - 2004 Standard Form of Agreement Between Owner and Design-Builder AGREEMENT made as of the day of in the year Two Thousand Eleven(2011) (In words, indicate day, month and year.) ADDITIONS AND DELETIONS: The author of this document has added information needed for its BETWEEN the Owner: completion.The author may also (Name, legal status, address and other information) have revised the text of the original AIA standard form.An Additions and City of Wylie 300 CountryClub Deletions Report that notes added information as well as revisions to Wylie, TX 75098 the standard form text is available from the author and should be reviewed.A vertical line in the left margin of this document indicates and the Design Builder: where the author has added (Name, legal status, address and other information) necessary information and where the author has added to or deleted Pulliam Construction Management,Inc. from the original AIA text. P. O.Box 1132 Wylie, TX 75098 This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. for the following Project: Consultation with an attorney is also (Name, location and detailed description) encouraged with respect to professional licensing requirements ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction in the jurisdiction where the Project City of Wylie is located. 949 Hensley Lane Wylie, TX 75098 Renovation to Existing Public Services Facility and Construction of a New Public Services Facility The Owner and Design-Builder agree as follows. AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is protected Init. by U.S.Copyright Law 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 t at 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) TABLE OF ARTICLES 1 THE DESIGN-BUILD DOCUMENTS 2 WORK OF THIS AGREEMENT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 CONTRACT SUM 5 PAYMENTS 6 DISPUTE RESOLUTION 7 MISCELLANEOUS PROVISIONS 8 ENUMERATION OF THE DESIGN-BUILD DOCUMENTS TABLE OF EXHIBITS A TERMS AND CONDITIONS B DETERMINATION OF THE COST OF THE WORK C INSURANCE AND BONDS ARTICLE 1 THE DESIGN-BUILD DOCUMENTS §1.1 The Design Build Documents form the Design-Build Contract. The Design-Build Documents consist of this Agreement between Owner and Design-Builder(hereinafter,the "Agreement")and its attached Exhibits; Supplementary and other Conditions;Addenda issued prior to execution of the Agreement;the Project Criteria, including changes to the Project Criteria proposed by the Design-Builder and accepted by the Owner,if any;the Design Builder's Proposal and written modifications to the Proposal accepted by the Owner,if any; other documents listed in this Agreement;and Modifications issued after execution of this Agreement.The Design-Build Documents shall not be construed to create a contractual relationship of any kind(1)between the Architect and Owner,(2)between the Owner and a Contractor or Subcontractor,or(3)between any persons or entities other than the Owner and Design-Builder,including but not limited to any consultant retained by the Owner to prepare or review the Project Criteria. An enumeration of the Design-Build Documents, other than Modifications,appears in Article 8. §1.2 The Design-Build Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations,representations or agreements,either written or oral. §1.3 The Design-Build Contract may be amended or modified only by a Modification. A Modification is(1)a written amendment to the Design-Build Contract signed by both parties, (2)a Change Order, (3)a Construction Change Directive or(4)a written order for a minor change in the Work issued by the Owner. ARTICLE 2 THE WORK OF THE DESIGN-BUILD CONTRACT §2.1 The Design-Builder shall fully execute the Work described in the Design-Build Documents,except to the extent specifically indicated in the Design-Build Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION §3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice issued by the Owner. (Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed.) AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 2 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) If,prior to the commencement of Work,the Owner requires time to file mortgages, documents related to mechanic's liens and other security interests,the Owner's time requirement shall be as follows: (Insert Owner's time requirements.) §3.2 The Contract Time shall be measured from the date of commencement, subject to adjustments of this Contract Time as provided in the Design-Build Documents. (Insert provisions, if any,for liquidated damages relating to failure to complete on time or for bonus payments for early completion of the Work.) §3.3 The Design Builder shall achieve Substantial Completion of the Work not later than 365 days from the date of commencement,or as follows: (Insert number of calendar days.Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Design-Build Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work.) Portion of Work Substantial Completion Date ARTICLE 4 CONTRACT SUM §4.1 The Owner shall pay the Design-Builder the Contract Sum in current funds for the Design-Builder's performance of the Design-Build Contract. The Contract Sum shall be one of the following: (Check the appropriate box_) [ ] Stipulated Sum in accordance with Section 4.2 below; [ ] Cost of the Work Plus Design-Builder's Fee in accordance with Section 4.3 below; [X ] Cost of the Work Plus Design-Builder's Fee with a Guaranteed Maximum Price in accordance with Section 4.4 below. (Based on the selection above, complete either Section 4.2, 4.3 or 4.4 below.) §4.2 STIPULATED SUM §4.2.1 The Stipulated Sum shall be ($ ), subject to additions and deductions as provided in the Design-Build Documents. §4.2.2 The Stipulated Sum is based upon the following alternates,if any,which are described in the Design-Build Documents and are hereby accepted by the Owner: §4.2.3 Unit prices,if any, are as follows: Description Units Price §4.2.4 Allowances, if any, are as follows: (Identify and state the amounts of any allowances, and state whether they include labor, materials, or both) AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 3 severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software t at 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) Allowance Amount Included Items §4.2.5 Assumptions or qualifications,if any, on which the Stipulated Sum is based,are as follows: §4.3 COST OF THE WORK PLUS DESIGN-BUILDER'S FEE §4.3.1 The Cost of the Work is as defined in Exhibit B. §4.3.2 The Design-Builder's Fee is: (State a lump sum,percentage of Cost of the Work or other provision for determining the Design-Builder's Fee and the method of adjustment to the Fee for changes in the Work.) §4.4 COST OF THE WORK PLUS DESIGN-BUILDER'S FEE WITH A GUARANTEED MAXIMUM PRICE §4.4.1 The Cost of the Work is as defined in Exhibit B,plus the Design-Builder's Fee. §4.4.2 The Design-Builder's Fee is: (State a lump sum,percentage of Cost of the Work or other provision for determining the Design-Builder's Fee and the method of adjustment to the Fee for changes in the Work.) The Design-Builder's Fee for overhead and profit for design and construction services shall be five percent(5.0%) of the Cost of the Work(excluding the cost of design services), subject to the limits of the Guaranteed Maximum Price. This rate shall also apply for Change Orders for the additional Cost of the Work attributable to the change. The Design-Builder's Fee for overhead and profit shall not be applied to the cost of bonds furnished by the Design- Builder. §4.4.3 GUARANTEED MAXIMUM PRICE (Paragraphs deleted) §4.4..3.1The>'sum of the Cost of the Work and the Design-Builder's Fee is guaranteed by the Design-Builder not to exceed$3,500,000.00,subject to additions and deductions by changes in the Work as provided in the Design-Build Documents. Such maximum sum is referred to in the Design-Build Documents as the Guaranteed Maximum Price. The Guaranteed Maximum Price shall be determined as provided in this Section. Within ten(10)days of completion of the Drawings and Specifications to be prepared by the Design-Builder,the Design-Builder shall submit a proposed Guaranteed Maximum Price for review and approval by the Owner. The Guaranteed Maximum Price shall be composed of(1)the Cost of the Work, (2)the Design-Builder's Fee, and(3) such other costs and contingencies as the Owner and Design-Builder may mutually agree. The proposal shall also include: (1)a list of the Drawings and Specifications on which the Guaranteed Maximum Price is based, (2)a list of allowances and a statement of their basis,(3)a list of clarifications,assumptions and qualifications made by the Design-Builder in preparing the Guaranteed Maximum Price, and(4)a schedule indicating the proposed progress and date of Substantial Completion of the Work required by the Contract Documents. The Design-Builder shall meet with the Owner to review the Guaranteed Maximum Price proposal,which shall be revised as may be mutually agreed by the Owner and Design-Builder. Upon acceptance by the Owner,the Guaranteed Maximum Price shall be established by written Change Order. The Change Order shall also establish those other documents identified above as the Design-Build Documents. Until established by written Change Order, no budget,estimate or other pricing of the Design-Builder shall constitute the Guaranteed Maximum Price or other limit on costs. If the Owner and Design-Builder are unable to agree on the Guaranteed Maximum Price,the Owner may terminate this Agreement for its convenience pursuant to Section A.14.4 of Exhibit A,Terms and Conditions. §4.4.3.2 The Guaranteed Maximum Price is based on the following alternates, if any,which are described in the Design-Build Documents and are hereby accepted by the Owner: AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 4 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) §4.4.3.3 Unit Prices,if any, are as follows: Description Units Price($0.00) §4.4.3.4 Allowances,if any, are as follows: (Identify and state the amounts of any allowances, and state whether they include labor, materials, or both.) Allowance Amount($0.00) Included Items §4.4.3.5 Assumptions,if any, on which the Guaranteed Maximum Price is based,are as follows: (Identify the assumptions on which the Guaranteed Maximum Price is based.) §4.5 CHANGES IN THE WORK §4.5.1 Adjustments of the Contract Sum on account of changes in the Work may be determined by any of the methods listed in Article A.7 of Exhibit A,Terms and Conditions. §4.5.2 ARTICLE 5 PAYMENTS §5.1 PROGRESS PAYMENTS §5.1.1 Based upon Applications for Payment submitted to the Owner by the Design-Builder,the Owner shall make progress payments on account of the Contract Sum to the Design-Builder as provided below and elsewhere in the Design Build Documents. §5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month,or as follows: §5.1.3 Provided that an Application for Payment is received not later than the twenty-fifth day of month,the Owner shall make,payment to the Design Builder not later than the tenth day of the following month. If an Application for Payment is received by the Owner after the application date fixed above,payment shall be made by the Owner not later than twenty(20)days after the Owner receives the Application for Payment. §5.1.4 With each Application for Payment where the Contract Sum is based upon the Cost of the Work,or the Cost of the Work with a Guaranteed Maximum Price,the Design-Builder shall submit payrolls,petty cash accounts, receipted invoices or invoices with check vouchers attached,and any other evidence required by the Owner to demonstrate that cash disbursements already made by the Design-Builder on account of the Cost of the Work equal or exceed(1)progress payments already received by the Design-Builder,less(2)that portion of those payments attributable to the Design-Builder's Fee;plus(3)payrolls for the period covered by the present Application for Payment. §5.1.5 With each Application for Payment where the Contract Sum is based upon a Stipulated Sum or Cost of the Work with a Guaranteed Maximum Price,the Design-Builder shall submit the most recent schedule of values in accordance with the Design-Build Documents.The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. Compensation for design services shall be shown separately. Where the Contract Sum is based on the Cost of the Work with a Guaranteed Maximum Price,the Design-Builder's Fee shall be shown separately. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule of values,unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder's Applications for Payment. AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 5 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) §5.1.6 In taking action on the Design-Builder's Applications for Payment,the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Design-Builder and shall not be deemed to have made a detailed examination,audit or arithmetic verification of the documentation submitted in accordance with Sections 5.1.4 or 5.1.5, or other supporting data;to have made exhaustive or continuous on-site inspections;or to have made examinations to ascertain how or for what purposes the Design-Builder has used amounts previously paid,on account of the Agreement. Such examinations,audits and verifications,if required by the Owner,will be performed by the Owner's accountants acting in the sole interest of the Owner. §5.1.7 Except with the Owner's prior approval,the Design-Builder shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. §5.2 PROGRESS PAYMENTS-STIPULATED SUM §5.2.1 Applications for Payment where the Contract Sum is based upon a Stipulated Sum shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. §5.2.2 Subject to other provisions of the Design-Build Documents,the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five percent(5%)on the Work,other than services provided by design professionals and other consultants retained directly by the Design-Builder.Pending final determination of cost to the Owner of Changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A,Terms and Conditions; 2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction(or,if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing),less retainage of five percent(5%); .3 Subtract the aggregate of previous payments made by the Owner;and .4 Subtract amounts,if any,for which the Owner has withheld payment from or nullified an Application for Payment,as provided in,Section A.9.5 of Exhibit A,Terms and Conditions. §5.2.3 The progress payment amount determined in accordance with Section 5.2.2 shall be further modified under the following circumstances: .1 add,upon Substantial Completion of the Work,a sum sufficient to increase the total payments to the full amount of the Contract Sum,less such amounts as the Owner shall determine for incomplete Work,retainage applicable to such work and unsettled claims; and (Section A.9.8.6 of ExhibitA, Terms and Conditions requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any.) .2 add,if final completion of the Work is thereafter materially delayed through no fault of the Design- Builder,any additional amounts payable in accordance with Section A.9.10.3 of Exhibit A,Terms and Conditions. §5.2.4 Reduction or limitation of retainage,if any,under Section 5.2.2 shall be as follows: (If is intended,prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.2.2.1 and 5.2.2.2 above, and this is not explained elsewhere in the Design- Build Documents, insert here provisions for such reduction or limitation.) §5.3 PROGRESS PAYMENTS-COST OF THE WORK PLUS A FEE §5.3.1 Where the Contract Sum is based upon the Cost of the Work plus a fee without a Guaranteed Maximum Price,Applications for Payment shall show the Cost of the Work actually incurred by the Design-Builder through the end of the period covered by the Application for Payment and for which Design-Builder has made or intends to make actual payment prior to the next Application for Payment. AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 6 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) §5.3.2 Subject to other provisions of the Design-Build Documents,the amount of each progress payment shall be computed as follows: .1 Take the Cost of the Work as described in Exhibit B; .2 Add the Design-Builder's Fee, less retainage of five percent(5%).The Design-Builder's Fee shall be computed upon the Cost of the Work described in the preceding Section 5.3.2.1 at the rate stated in Section 4.3.2; or if the Design-Builder's Fee is stated as a fixed sum in that section,an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the preceding section bears to a reasonable estimate of the probable Cost of the Work upon its completion; .3 Subtract the aggregate of previous payments made by the Owner; .4 Subtract the shortfall,if any, indicated by the Design-Builder in the documentation required by Section 5.1.4 or resulting from errors subsequently discovered by the Owner's accountants in such documentation;and .5 Subtract amounts,if any,for which the Owner has withheld or withdrawn a Certificate for Payment as provided in the Section A.9.5 of Exhibit A,Terms and Conditions. §5.3.3 Retainage in addition to the retainage stated at Section 5.3.2.2,if any, shall be as follows: §5.3.4 Except with the Owner's prior approval,payments for the Work,other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than five percent(5%).The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. §5.4 PROGRESS PAYMENTS-COST OF THE WORK PLUS A FEE WITH A GUARANTEED MAXIMUM PRICE §5.4.1 Applications for Payment where the Contract Sum is based upon the Cost of the Work Plus a Fee with a Guaranteed Maximum Price 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 Design-Builder on account of that portion of the Work for which the Design-Builder 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. §5.4.2 Subject to other provisions of the Design-Build 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 A.7.3.8 of Exhibit A,Terms and Conditions; .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 Design-Builder's Fee, less retainage of five percent(5%).The Design-Builder's Fee shall be computed upon the Cost of the Work described in Sections 5.4.2.1 and 5.4.2.2 at the rate stated in Section 4.4.2 or,if the Design-Builder'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 in the two preceding sections bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Subtract the aggregate of previous payments made by the Owner; .5 Subtract the shortfall,if any, indicated by the Design-Builder in the documentation required by Section 5.1.4 to substantiate prior Applications for Payment,or resulting from errors subsequently discovered by the Owner's accountants in such documentation;and .6 Subtract amounts,if any,for which the Owner has withheld or nullified a Certificate for Payment as provided in Section A.9.5 of Exhibit A,Terms and Conditions. AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 7 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) §5.4.3 Except with the Owner's prior approval,payments for the Work,other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than;.five percent(5%). The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. §5.5 FINAL PAYMENT §5.5.1 Final payment,constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Design-Builder no later than 30 days after the Design-Builder has fully performed the Design-Build Contract, including the requirements in Section A.9.10 of Exhibit A,Terms and Conditions, except for the Design-Builder's responsibility to correct non-conforming Work discovered after final payment or to satisfy other requirements,if any,which extend beyond final payment. ARTICLE 6 DISPUTE RESOLUTION §6.1 Intentionally Deleted. §6.2 If the parties do not resolve their dispute through mediation pursuant to Section A.4.3 of Exhibit A,Terms and Conditions,the method of binding dispute resolution shall be the following: (If the parties do not select a method of binding dispute resolution, then the method of binding dispute resolution shall be by litigation in a court of competent jurisdiction.) (Check one.) [ ] Arbitration pursuant to Section A.4.4 of Exhibit A,Terms and Conditions [X ] Litigation in a court of competent jurisdiction [ ] Other(Specify) §6.3 ARBITRATION §6.3.1 Intentionally Deleted. ARTICLE 7 MISCELLANEOUS PROVISIONS §7.1 The Architect,other design professionals and consultants engaged by the Design-Builder shall be persons or entities duly licensed to practice their professions in the jurisdiction where the Project is located and are listed as follows: (Insert name, address, license number, relationship to Design-Builder and other information.) Name and Address License Number Relationship to Other Information Design-Builder §7.2 Consultants,if any, engaged directly by the Owner,their professions and responsibilities are listed below: (Insert name, address, license number, if applicable, and responsibilities to Owner and other information.) Name and Address License Number Responsibilities Other Information to Owner §7.3 Separate contractors,if any, engaged directly by the Owner,their trades and responsibilities are listed below: AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 8 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) (Insert name, address, license number, if applicable, responsibilities to Owner and other information.) Name and Address License Number Responsibilities Other Information to Owner §7.4 The Owner's Designated Representative is: (Insert name, address and other information.) Mindy Manson, City Manager City of Wylie,Texas 300 Country Club Wylie, TX 75098 §7.4.1 The Owner's Designated Representative identified above shall be authorized to act on the Owner's behalf with respect to the Project. §7.5 The Design-Builder's Designated Representative is: (Insert name, address and other information.) Tommy Pulliam,President Pulliam Construction Management,Inc. P. O.Box 1132 Wylie, TX 75098 §7.5.1 The Design-Builder's Designated Representative identified above shall be authorized to act on the Design- Builder's behalf with respect to the Project. §7.6 Neither the Owner's nor the Design-Builder's Designated Representative shall be changed without ten days written notice to the other party. §7.7 Other provisions: Each engineer or architect that is a member of the Design-Build team was selected based on demonstrated competence and qualifications in the manner provided by Section 2254.004,Texas Govt. Code. §7.7.1 Where reference is made in this Agreement to a provision of another Design-Build Document,the reference refers to that provision as amended or supplemented by other provisions of the Design-Build Documents. §7.7.2 Payments due and unpaid under the Design-Build Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) I Ten percent( 10.00%)per annum. (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Design-Builder's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 9 severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software t at 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) ARTICLE 8 ENUMERATION OF THE DESIGN-BUILD DOCUMENTS §8.1 The Design-Build Documents,except for Modifications issued after execution of this Agreement,are enumerated as follows: §8.1.1 The Agreement is this executed edition of the Standard Form of Agreement Between Owner and Design- Builder,A1A Document A141-2004. §8.1.2 The Supplementary and other Conditions of the Agreement,if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) l Title of the Supplementary and Other Conditions Exhibit: (Table deleted) §8.1.3 The Project Criteria,including changes to the Project Criteria proposed by the Design-Builder,if any, and accepted by,the Owner, consist of the following: (Either list applicable documents and their dates below or refer to an exhibit attached to this Agreement.) Title of the Project Criteria exhibit: (Table deleted) §8.1.4 The Design-Builder's Proposal, dated , consists of the following: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) I Title of the Design-Builder's Proposal: §8.1.5 Amendments to the Design-Builder's Proposal,if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Amendments to Design-Builder's Proposal exhibit: §8.1.6 The Addenda,if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of Addenda exhibit: I (Table deleted) §8.1.7 Exhibit A,Terms and Conditions. (If the parties agree to substitute terms and conditions other than those contained in AIA Document A141-2004, Exhibit A, Terms and Conditions, then identify such terms and conditions and attach to this Agreement as Exhibit A.) §8.1.8 Exhibit B,Determination of the Cost of the Work,if applicable. (If the parties agree to substitute a method to determine the cost of the Work other than that contained in AIA DocumentA141-2004,Exhibit B, Determination of the Cost of the Work, then identify such other method to determine the cost of the Work and attach to this Agreement as Exhibit B.If the Contract Sum is a Stipulated Sum, then Exhibit B is not applicable) §8.1.9 Exhibit C,Insurance and Bonds,if applicable. (Complete AIA Document A141-2004, Exhibit C,Insurance and Bonds or indicate "not applicable.") §8.1.10 Other documents,if any,forming part of the Design-Build Documents are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in 10 severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software t at 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) This Agreement entered into as of the day and year first written above. City of Wylie Pulliam Construction Management, Inc. By: By: OWNER(Signature) DESIGN-BUILDER(Signature) Mindy Manson,City Manager Tommy Pulliam,President (Printed name and title) (Printed name and title) AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is protected Init. by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this Ale Document or any portion of it,may result in I Isevere civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) Additions and Deletions Report for AIA®Document A 141 TM— 2004 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 15:44:36 on 10/05/2011. PAGE 1 AGREEMENT made as of the day of in the year Two Thousand Eleven(2011) City of Wylie 300 Country Club Wylie, TX 75098 Pulliam Construction Management,Inc. P. 0.Box 1132 Wylie, TX 75098 (Name, location and detailed description) ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction City of Wylie 949 Hensley Lane Wylie, TX 75098 Renovation to Existing Public Services Facility and Construction of a New Public Services Facility PAGE 3 §3.3 The Design-Builder shall achieve Substantial Completion of the Work not later than 365 days from the date of commencement, or as follows: [X ] Cost of the Work Plus Design-Builder's Fee with a Guaranteed Maximum Price in accordance with Section 4.4 below. Description Units Price($9.00) PAGE 4 Additions and Deletions Report for AIA Document A141 TM-2004.Copyright©2004 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® 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) Allowance Amount{$0.00) Included Items The Design-Builder's Fee for overhead and profit for design and construction services shall be five percent(5.0%) of the Cost of the Work(excluding the cost of design services), subject to the limits of the Guaranteed Maximum Price. This rate shall also apply for Change Orders for the additional Cost of the Work attributable to the change. The Design-Builder's Fee for overhead and profit shall not be applied to the cost of bonds furnished by the Design- Builder. §4.4.3.1 The sum of the Cost of the Work and the Design Builder's Fee is guaranteed by the Design Builder not to exceed ($ ),subject to additions and deductions by changes in the Work as provided in the Design Build Documents. Such maximum sum is referred to in the Design Build Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Design Builder without reimbursement by the Owner. (Insert specific provisions if the Design Builder is to participate in any savings.) §4.43.1The sum of the Cost of the Work and the Design-Builder's Fee is guaranteed by the Design-Builder not to exceed$3,500,000.00, subject to additions and deductions by changes in the Work as provided in the Design-Build Documents. Such maximum sum is referred to in the Design-Build Documents as the Guaranteed Maximum Price. The Guaranteed Maximum Price shall be determined as provided in this Section. Within ten(10)days of completion of the Drawings and Specifications to be prepared by the Design-Builder,the Design-Builder shall submit a proposed Guaranteed Maximum Price for review and approval by the Owner. The Guaranteed Maximum Price shall be composed of(1)the Cost of the Work, (2)the Design-Builder's Fee, and(3) such other costs and contingencies as the Owner and Design-Builder may mutually agree. The proposal shall also include: (1)a list of the Drawings and Specifications on which the Guaranteed Maximum Price is based, (2)a list of allowances and a statement of their basis,(3)a list of clarifications,assumptions and qualifications made by the Design-Builder in preparing the Guaranteed Maximum Price,and(4)a schedule indicating the proposed progress and date of Substantial Completion of the Work required by the Contract Documents. The Design-Builder shall meet with the Owner to review the Guaranteed Maximum Price proposal,which shall be revised as may be mutually agreed by the Owner and Design-Builder. Upon acceptance by the Owner,the Guaranteed Maximum Price shall be established by written Change Order. The Change Order shall also establish those other documents identified above as the Design-Build Documents. Until established by written Change Order, no budget,estimate or other pricing of the Design-Builder shall constitute the Guaranteed Maximum Price or other limit on costs. If the Owner and Design-Builder are unable to agree on the Guaranteed Maximum Price,the Owner may terminate this Agreement for its convenience pursuant to Section A.14.4 of Exhibit A,Terms and Conditions. PAGE 5 §4.5.2Where the Contract Sum is the Cost of the Work,with or without a Guaranteed Maximum Price,and no specific provision is made in Sections 4.3.2 or 4.4.2 for adjustment of the Design Builder's Fee in the case of Changes in the Work, or if the extent of such changes is such,in the aggregate,that application of the adjustment will cause substantial inequity to the Owner or Design Builder,the Design Builder's Fee shall be equitably adjusted on the basis of the Fee established for the original Work,and the Contract Sum shall be adjusted accordingly. Additions and Deletions Report for AIA Document A141 TM-2004.Copyright©2004 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° 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) §5.1.3 Provided that an Application for Payment is received not later than the twenty-fifth day of month,the Owner shall make payment to the Design-Builder not later than the tenth day of the following month. If an Application for Payment is received by the Owner after the application date fixed above,payment shall be made by the Owner not later than twenty(20)days after the Owner receives the Application for Payment. PAGE 6 .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values,less retainage of five percent(5 %)on the Work,other than services provided by design professionals and other consultants retained directly by the Design-Builder.Pending final determination of cost to the Owner of Changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A,Terms and Conditions; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction(or,if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing),less retainage ofve'percent(5 %); PAGE 7 .2 Add the Design-Builder's Fee,less retainage of five percent(5%).The Design-Builder's Fee shall be computed,upon the Cost of the Work described in the preceding Section 5.3.2.1 at the rate stated in Section 4.3.2; or if the Design-Builder's Fee is stated as a fixed sum in that section,an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the preceding section bears to a reasonable estimate of the probable Cost of the Work upon its completion; §5.3.4 Except with the Owner's prior approval,payments for the Work,other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than five percent(5'%).The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. .3 Add the Design-Builder's Fee,less retainage of five percent(5%).The Design-Builder's Fee shall be computed upon the Cost of the Work described in the two preceding sections Sections 5.4.2.1 and 5.4.2.2 at the rate stated in Section 4.4.2 or,if the Design-Builder'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 in the two preceding sections bears to a reasonable estimate of the probable Cost of the Work upon its completion; PAGE 8 §5.4.3 Except with the Owner's prior approval,payments for the Work,other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than five percent(5 %). The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. §6.1 The parties appoint the following individual to serve as a Neutral pursuant to Section A.4.2 of Exhibit A, Terms and Conditions: 1.2.2 of Exhibit A, Terms and Conditions, shall apply.}Intentionally Deleted. Additions and Deletions Report for AIA Document A141 TM-2004.Copyright©2004 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 law. This document was produced by AIA software at 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) ['X ] Litigation in a court of competent jurisdiction §6.3.1 If Arbitration is selected by the parties as the method of binding dispute resolution,then any claim,dispute orother matter in question arising out of or related to this Agreement shall be subject to arbitration as provided in Section A.4.4 of Exhibit A,Terms and Conditions.Intentionally Deleted. PAGE 9 Mindy Manson,City Manager City of Wylie,Texas 300 Country Club Wylie, TX 75098 Tommy Pulliam,President Pulliam Construction Management,Inc. P. O.Box 1132 Wylie, TX 75098 Each engineer or architect that is a member of the Design-Build team was selected based on demonstrated competence and qualifications in the manner provided by Section 2254.004,Texas Govt. Code. Ten percent( 10.00%)per annum. PAGE 10 Title of the Supplementary and Other Conditions Exhibit: Document Title Page, Title of the Project Criteria exhibit: Title Sate Title of the Design-Builder's Proposal: Title of the Amendments to Design-Builder's Proposal exhibit: Additions and Deletions Report for AIA Document A141 TM-2004.Copyright©2004 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® 4 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) Title of Addenda exhibit: Number Date Pages PAGE 11 City of Wylie Pulliam Construction Management, Inc. Mindy Manson,City Manager Tommy Pulliam,President Additions and Deletions Report for AIA Document A141 TM-2004.Copyright©2004 by The American Institute of Architects.All rights reserved. WARNING:This AleDocument is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° 5 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) Certification of Document's Authenticity AIA®Document D401 TM — 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 certification at 15:44:36 on 10/05/2011 under Order No.7045488178_1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA®Document A141TM—2004, Standard Form of Agreement Between Owner and Design-Builder,as published by the AIA in its software,other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (Dated) AIA Document D401 TM-2003.Copyright©1992 and 2003 by The American Institute of Architects.All rights reserved.WARNING:This Ale Document is protected by U.S.Copyright Law 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 15:44:36 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1347633491) eltij Document A141 TM - 2004 Exhibit A Terms and Conditions for the following PROJECT: (Name and location or address) ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction ADDITIONS AND DELETIONS: City of Wylie The author of this document has 949 Hensley Lane added information needed for its Wylie TX 75098 completion.The author may also have revised the text of the original AIA standard form.An Additions and THE OWNER: Deletions Report that notes added (Name, legal status and address) information as well as revisions to the standard form text is available City of Wylie from the author and should be 300 Country Club reviewed.A vertical line in the left Wylie, TX 75098 ` margin of this document indicates where the author has added THE DESIGN-BUILDER: necessary information and where (Name, legal status and address) the author has added to or deleted from the original AIA text. Pulliam Construction Management,Inc. This document has important legal P. O.Box 1132 Wylie, TX 75098 consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is Init. protected by U.S.Copyright Law 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) TABLE OF ARTICLES A.1 GENERAL PROVISIONS A.2 OWNER A.3 DESIGN-BUILDER A.4» DISPUTE RESOLUTION A.5 AWARD OF CONTRACTS A CONSTRUCTION BY,OWNER OR BY SEPARATE CONTRACTORS A.7 CHANGES IN THE WORK A.8 TIME A.9 PAYMENTS AND COMPLETION A.10' PROTECTION OF PERSONS AND PROPERTY A.11 INSURANCE AND BONDS A.12' UNCOVERING AND CORRECTION OF WORK A.13 MISCELLANEOUS PROVISIONS A.14 TERMINATION OR SUSPENSION OF THE DESIGN-BUILD CONTRACT AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AleDocument,or any portion of it, 2 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) ARTICLE A.1 GENERAL PROVISIONS §A.1.1 BASIC DEFINITIONS §A.1.1.1 THE DESIGN-BUILD DOCUMENTS The Design-Build Documents are identified in Section 1.1 of the Agreement. §A.1.1.2 PROJECT CRITERIA The Project Criteria are identified in Section 8.1.3 of the Agreement and may describe the character, scope, relationships,forms, size and appearance of the Project, materials and systems and,in general,their quality levels, performance standards,requirements or criteria,and major equipment layouts. §A.1.1.3 ARCHITECT The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and having a direct contract with the Design-Builder to perform design services for all or a portion of the Work,and is referred to throughout the Design-Build Documents as if singular in number. The term"Architect"means the Architect or the Architect's authorized representative. §A.1.1.4 CONTRACTOR A Contractor is a person or entity, other than the Architect,that has a direct contract with the Design-Builder to perform all or a portion of the construction required in connection with the Work. The term"Contractor"is referred to throughout the Design-Build Documents as if singular in number and means a Contractor or an authorized representative of the Contractor. The term"Contractor"does not include a separate contractor,as defined in Section A.6.1.2, or subcontractors of a separate contractor. §A.1.1.5 SUBCONTRACTOR A Subcontractor is a person or entity who has a direct contract with a Contractor to perform a portion of the construction required in connection with the Work at the site. The term"Subcontractor"is referred to throughout the Design-Build Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. §A.1.1.6 THE WORK The term"Work"means the design,construction and services required by the Design-Build Documents,whether completed or partially completed,and includes all other labor,materials,equipment and services provided or to be provided by the Design Builder to fulfill the Design-Builder's obligations. The Work may constitute the whole or a part of the Project. §A.1.1.7 THE PROJECT The Project is the total design and construction of which the Work performed under the Design-Build Documents may be the whole or a part,and which may include design and construction by the Owner or by separate contractors. (Paragraphs deleted) §A.1.2 COMPLIANCE WITH APPLICABLE LAWS §A.1.2.1 If the Design-Builder believes that implementation of any instruction received from the Owner would cause a violation of any applicable law, statute,ordinance,building code, rule or regulation,the Design-Builder shall notify the Owner in writing.Neither the Design-Builder nor any Contractor or Architect shall be obligated to perform any act which they believe will violate any applicable law, ordinance,rule or regulation. §A.1.2.2 The Design-Builder shall be entitled to rely on the completeness and accuracy of the information contained in the Project Criteria,but not that such information complies with applicable laws,regulations and codes,which shall be the obligation of the Design-Builder to determine. In the event that a specific requirement of the Project Criteria conflicts with applicable laws,regulations and codes,the Design-Builder shall furnish Work which complies with such laws,regulations and codes. In such case,the Owner shall issue a Change Order to the Design- Builder unless the Design-Builder recognized such non-compliance prior to execution of this Agreement and failed to notify the Owner. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 3 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.1.3 CAPITALIZATION §A.1.3.1 Terms capitalized in these Terms and Conditions include those which are(1)specifically defined, (2)the titles of numbered articles and identified references to sections in the document, or(3)the titles of other documents published by the American Institute of Architects. §A.1.4 INTERPRETATION §A.1.4.1 In the interest of brevity,the Design-Build Documents frequently omit modifying words such as "all"and "any" and articles such as "the" and"an,"but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. §A1.4.2 Unless otherwise stated in the Design-Build Documents,words which have well-known technical or construction industry meanings are used in the Design-Build Documents in accordance with such recognized meanings. §A.1.5 EXECUTION OF THE DESIGN-BUILD DOCUMENTS §A.1.5.1 The Design-Build Documents shall be signed by the Owner and Design-Builder. §A.1.5.2 Execution of the Design-Build Contract by the Design-Builder is a representation that the Design-Builder has visited the site,become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Design-Build Documents. §A.1.6 OWNERSHIP AND USE OF DOCUMENTS AND ELECTRONIC DATA §A.1.6.1 Drawings, specifications,and other documents including those in electronic form,prepared by the Architect and furnished by the Design Builder are Instruments of Service. The Design-Builder,Design-Builder's Architect and other providers of professional services individually shall retain all common law, statutory and other reserved rights,including copyright in those Instruments of Services furnished by them.Drawings, specifications,and other documents and materials and electronic data are furnished for use solely with respect to this Project. §A.1.6.2 Upon execution of the Design-Build Contract,the Design-Builder grants to the Owner a non-exclusive license to reproduce and use the Instruments of Service solely in connection with the Project, including the Project's further development by the Owner and others retained by the Owner for such purposes,provided that the Owner shall comply with all obligations,including prompt payment of sums when due,under the Design-Build Documents. Subject to the Owner's compliance with such obligations, such license shall extend to those parties retained by the Owner for such purposes, including other design professionals. The Design-Builder shall obtain similar non- exclusive licenses from its design professionals,including the Architect. The Owner shall not otherwise assign or transfer any,license herein to another party without prior written agreement of the Design-Builder. Any unauthorized reproduction or use of the Instruments of Service by the Owner or others shall be at the Owner's sole risk and expense without liability to the Design-Builder and its design professionals.Except as provided in Section A.1.6.4, termination of this Agreement prior to completion of the Design-Builder's services to be performed under this Agreement shall terminate this license. §A.1.6.3 Prior to any electronic exchange by the parties of the Instruments of Service or any other documents or materials to be provided by one party to the other,the Owner and the Design-Builder shall agree in writing on the specific conditions,governing the format thereof, including any special limitations or licenses not otherwise provided in the Design-Build Documents. §A.1.6.4 If this Agreement is terminated for any reason other than the default of the Owner,each of the Design- Builder's design professionals,including the Architect, shall be contractually required to convey to the Owner a non-exclusive license to use that design professional's Instruments of Service for the completion,use and maintenance of the Project, conditioned upon the Owner's written notice to that design professional of the substitute contractor engaged by Owner and its assumption of the Design-Builder's contractual duties and obligations to that design professional and payment to that design professional of all amounts due to that design professional and its consultants.The Design-Builder shall incorporate the requirements of this Section A.1.6.4 in all agreements with its design professionals. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 4 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.1.6.5 Submission or distribution of the Design-Builder's documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the rights reserved in Section A.1.6.1. §A.1.6.6 Any licenses granted the Owner under this Section A.1.6 are conditioned upon and shall not be valid or effective until the Owner has paid the Design-Builder all sums due under the Contract Documents for its design services. §A.1.6.7 The Instruments of Service are prepared through the Design-Builder solely for use by the Design-Builder to construct the Project and may not be suitable for use by a substitute design-builder or others without direct involvement in the creation of the Instruments of Service. Accordingly, and notwithstanding anything to the contrary in the Contract Documents,if the Owner terminates the Agreement for convenience or for any reason other than for cause prior to completion of the construction of the Work by the Design-Builder,or if the Design-Builder terminates the Agreement for cause for a default of the Owner,the Design-Builder shall not be liable to the Owner or the substitute design-builder for any claim,damage,loss, expense or other liability arising out of or related to Instruments of Service or other elements of the design of the Project,it being understood that the sole rights and recourse of the Owner and substitute design-builder shall be against the Architect and such other design professionals whose agreements are assumed in writing by the Owner or substitute design-builder pursuant to Section A.1.6.4. §A.1.6.8 Any use of the Instruments of Service in contravention of this Section A.1.6 by the Owner,a substitute design-builder or other parties by or through the Owner shall be at their sole risk and expense without liability to the Design-Builder,the Architect or their design professionals. ARTICLE A.2 OWNER §A.2.1 GENERAL §A.2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The term"Owner"means the Owner or the Owner's authorized representative. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all Project matters requiring the Owner's approval or authorization. The Owner shall render decisions in a timely manner and in accordance with the Design-Builder's schedule submitted to the Owner. I (Paragraph deleted) §A.2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER §A.2.2.1 Information or services required of the Owner by the Design-Build Documents shall be furnished by the Owner with reasonable promptness. Any other information or services relevant to the Design-Builder's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Design-Builder of a written request for such information or services. §A.2.2.2 The Owner shall be responsible to provide surveys, if not required by the Design-Build Documents to be provided by the Design Builder,describing physical characteristics,legal limitations,and utility locations for the site of this Project, and a written 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;adjacent drainage; rights-of-way, restrictions, easements, encroachments,zoning,deed restriction,boundaries,and contours of the site; locations,dimensions,and necessary data pertaining 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 a Project benchmark. §A.2.2.3 The Owner shall provide,to the extent available to the Owner and if not required by the Design-Build Documents to be provided by the Design-Builder,the results and reports of prior tests,inspections or investigations conducted for the Project involving structural or mechanical systems, chemical,air and water pollution,hazardous materials or environmental and subsurface conditions and information regarding the presence of pollutants at the Project site. §A.2.2.4 The Owner may obtain independent review of the Design-Builder's design, construction and other documents by a separate architect,engineer,and contractor or cost estimator under contract to or employed by the AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 5 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) Owner. Such independent review shall be undertaken at the Owner's expense in a timely manner and shall not delay the orderly progress of the Work. §A.2.2.5 The Owner shall cooperate with the Design-Builder in securing building and other permits,licenses and inspections. The Owner shall not be required to pay the fees for such permits,licenses and inspections unless the cost,of,such fees is excluded from the responsibility of the Design-Builder under the Design-Build Documents. §A.2.2.6 The services, information, surveys and reports required to be provided by the Owner under Section A.2.2, shall be furnished at the Owner's expense,and the Design-Builder shall be entitled to rely upon the accuracy and completeness thereof, except as otherwise specifically provided in the Design-Build Documents or to the extent the Owner advises the Design Builder to the contrary in writing. §A.2.2.7 If the Owner observes or otherwise becomes aware of a fault or defect in the Work or non-conformity with the Design-Build Documents,the Owner shall give prompt written notice thereof to the Design-Builder. §A.2.2.8 The Owner shall,at the request of the Design-Builder,prior to execution of the Design-Build Contract and promptly upon request thereafter,furnish to the Design-Builder reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Design-Build Documents. §A.2.2.9 The Owner shall communicate through the Design-Builder with persons or entities employed or retained by the Design-Builder,unless otherwise directed by the Design-Builder. §A.2.2.10 The Owner shall furnish the services of geotechnical engineers or other consultants,if not required by the Design-Build Documents to be provided by the Design-Builder,for subsoil,air and water conditions when such services are,deemed reasonably necessary by the Design-Builder to properly carry out the design services provided by the Design-Builder and the Design-Builder's Architect. Such services may include,but are not limited to,test borings,test pits,determinations of soil bearing values,percolation tests,evaluations of hazardous materials,ground corrosion and resistivity tests,and necessary operations for anticipating subsoil conditions. The services of geotechnical engineer(s)or other consultants shall include preparation and submission of all appropriate reports and professional recommendations. As a convenience to the Owner,the Design-Builder has included the cost of obtaining a geotechnical report form a third-party engineer in the design compensation payable to the Design Builder. However, such report shall be deemed furnished by the Owner,and the Design-Builder shall be entitled to rely on the accuracy and completeness thereof per Section A.2.2.6 and shall not be responsible for any errors or omissions in the report. §A.2.2.11 The Owner shall promptly obtain easements,zoning variances,and legal authorizations regarding site utilization where essential to the execution of the Owner's program. §A.2.3 OWNER REVIEW AND INSPECTION §A.2.3.1 The Owner shall review and approve or take other appropriate action upon the Design-Builder's submittals, including but not limited to design and construction documents,required by the Design-Build Documents,but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Design-Build Documents. The Owner's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Design-Builder or separate contractors. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details, such as dimensions and quantities,or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Design-Builder as required by the Design-Build Documents. §A.2.3.2 Upon review of the design documents, construction documents,or other submittals required by the Design- Build Documents,the Owner shall take one of the following actions: .1 Determine that the documents or submittals are in conformance with the Design-Build Documents and approve them. .2 Determine that the documents or submittals are in conformance with the Design-Build Documents but request changes in the documents or submittals which shall be implemented by a Change in the Work. .3 Determine that the documents or submittals are not in conformity with the Design-Build Documents and reject them. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 6 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) .4 Determine that the documents or submittals are not in conformity with the Design-Build Documents, but accept them by implementing a Change in the Work. .5 Determine that the documents or submittals are not in conformity with the Design-Build Documents, but accept them and request changes in the documents or submittals which shall be implemented by a Change in the Work. §A.2.3.3 The Design-Builder shall submit to the Owner for the Owner's approval,pursuant to Section A.2.3.1,any proposed change or deviation to previously approved documents or submittals. The Owner shall review each proposed change or deviation to previously approved documents or submittals which the Design-Builder submits to the Owner for the Owner's approval with reasonable promptness in accordance with Section A.2.3.1 and shall make one of the determinations described in Section A.2.3.2. §A.2.3.4 Notwithstanding the Owner's responsibility under Section A.2.3.2,the Owner's review and approval of the Design-Builder's documents or submittals shall not relieve the Design-Builder of responsibility for compliance with the Design-Build Documents unless a)the Design-Builder has notified the Owner in writing of the deviation prior to approval by the Owner or,b)the Owner has approved a Change in the Work reflecting any deviations from the requirements of the Design-Build Documents. §A.2.3.5 The Owner may visit the site to keep informed about the progress and quality of the portion of the Work completed. However,the Owner shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. Visits by the Owner shall not be construed to create an obligation on the part of the Owner to make on-site inspections to check the quantity or quality of the Work. The Owner shall neither have control over or charge of, nor be responsible for,the construction means,methods,techniques, sequences or procedures,or for the safety precautions and programs in connection with the Work, since these are solely the Design-Builder's rights and responsibilities under the Design-Build Documents,except as provided in Section A.3.3.7. §A.2.3.6 The Owner shall not be responsible for the Design-Builder's failure to perform the Work in accordance with the requirements of the Design-Build Documents. The Owner shall not have control over or charge of and will not be responsible for acts or omissions of the Design-Builder, Architect, Contractors, or their agents or employees, or any other persons or entities performing portions of the Work for the Design-Builder. §A.2.3.7 The Owner may reject Work that does not conform to the Design-Build Documents. Whenever the Owner considers it necessary or advisable,the Owner shall have authority to require inspection or testing of the Work in accordance with Section A.13.5.2,whether or not such Work is fabricated,installed or completed.However,neither this authority of the Owner nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Owner to the Design-Builder,the Architect, Contractors,material and equipment suppliers,their agents or employees, or other persons or entities performing portions of the Work. §A.2.3.8 The Owner may appoint an on-site project representative to observe the Work and to have such other responsibilities as the Owner and the Design-Builder agree to in writing. §A.2.3.9 The Owner shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion. §A.2.3.10 The Owner shall engage,independently of the Design-Builder,a firm or firms for testing of construction materials engineering and the verification testing services necessary for acceptance of the Work. §A.2.4 OWNER'S RIGHT TO STOP WORK §A.2.4.1 If the Design-Builder fails to correct Work which is not in accordance with the requirements of the Design- Build Documents as required by Section A.12.2 or persistently fails to carry out Work in accordance with the Design-Build Documents,the Owner may issue a written order to the Design-Builder to stop the Work, or any portion thereof,until the cause for such order has been eliminated;however,the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Design-Builder or any other person or entity, except to the extent required by Section A.6.1.3. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 7 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.2.5 OWNER'S RIGHT TO CARRY OUT THE WORK §A.2.5.1 If the Design-Builder defaults or neglects to carry out the Work in accordance with the Design-Build Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness,the Owner may after such seven-day period give the Design-Builder a second written notice to correct such deficiencies within a three-day period. If the Design-Builder within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies,the Owner may,without prejudice to other remedies the Owner may have, correct such deficiencies. In such case,an appropriate Change Order shall be issued deducting from payments then or thereafter due the Design-Builder the reasonable cost of correcting such deficiencies. If payments due the Design-Builder are not sufficient to cover such amounts,the Design-Builder shall pay the difference to the Owner. ARTICLE A.3 DESIGN-BUILDER §A3.1 GENERAL §A3.1.1 The Design-Builder is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The Design-Builder may be an architect or other design professional,a construction contractor,a real estate developer or any other person or entity legally permitted to do business as a design-builder in the location where the Project is located. The term"Design-Builder"means the Design-Builder or the Design-Builder's authorized representative. The Design-Builder's representative is authorized to act on the Design-Builder's behalf with respect to the Project. §A.3.1.2 The Design-Builder shall perform the Work in accordance with the Design-Build Documents. §A.3.2 DESIGN SERVICES AND RESPONSIBILITIES §A.3.2.1 When applicable law requires that services be performed by licensed professionals,the Design-Builder shall provide those services through the performance of qualified persons or entities duly licensed to practice their professions. The Owner understands and agrees that the services performed by the Design-Builder's Architect and the Design-Builder's other design professionals and consultants are undertaken and performed in the sole interest of and for the exclusive benefit of the Design-Builder. §A.3.2.2 The agreements between the Design-Builder and Architect or other design professionals identified in the Agreement,and in any subsequent Modifications, shall be in writing. These agreements,including services and financial arrangements with respect to this Project, shall be promptly and fully disclosed to the Owner upon the Owner's written request. §A.3.2.3 The Design Builder shall be responsible to the Owner for acts and omissions of the Design-Builder's employees, Architect, Contractors, Subcontractors and their agents and employees, and other persons or entities, including the Architect and other design professionals,performing any portion of the Design-Builder's obligations under the Design-Build Documents. §A.3.2.4 The Design-Builder shall carefully study and compare the Design-Build Documents,materials and other information provided by the Owner pursuant to Section A.2.2, shall take field measurements of any existing conditions related to the Work, shall observe any conditions at the site affecting the Work,and report promptly to the Owner any errors,inconsistencies or omissions discovered. §A.3.2.5 The Design Builder shall provide to the Owner for Owner's written approval design documents sufficient to establish the size,quality and character of the Project; its architectural, structural,mechanical and electrical systems; and the materials and such other elements of the Project to the extent required by the Design-Build Documents prior to commencement of construction.Deviations,if any,from the Design-Build Documents shall be disclosed in writing. §A.3.2.6 Upon the Owner's written approval of the design documents submitted by the Design-Builder,the Design- Builder shall provide construction documents for review and written approval by the Owner. The construction documents shall set forth in detail the requirements for construction of the Project. The construction documents shall include drawings and specifications that establish the quality levels of materials and systems required.Deviations,if any,from the Design-Build Documents shall be disclosed in writing. Construction documents may include drawings, specifications,and other documents and electronic data setting forth in detail the requirements for construction of the Work,and shall: AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 8 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) .1 be consistent with the approved design documents; .2 provide information for the use of those in the building trades; and .3 include documents customarily required for regulatory agency approvals. §A.3.2.7 The Design-Builder shall meet with the Owner no less frequently than once every two(2)weeks to review progress of the design and construction documents. §A.3.2.8 Upon the Owner's written approval of construction documents,the Design-Builder,with the assistance of the Owner, shall prepare and file documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project. §A.3.2.9 The Design-Builder shall obtain from each of the Design-Builder's professionals and furnish to the Owner certifications with respect to the documents and services provided by such professionals(a)that,to the best of their knowledge,information and belief,the documents or services to which such certifications relate(i)are consistent with the Project Criteria set forth in the Design-Build Documents,except to the extent specifically identified in such certificate, (ii)comply with applicable professional practice standards,and(iii)comply with applicable laws, ordinances,codes, rules and regulations governing the design of the Project; and(b)that the Owner and its consultants shall be entitled to rely upon the accuracy of the representations and statements contained in such certifications,as well as any other certificates in the form and manner required by law. §A.3.2.10 If the Owner requests the Design-Builder,the Architect or the Design-Builder's other design professionals to execute certificates other than those required by Section A.3.2.9,the proposed language of such certificates shall be submitted to the Design-Builder,or the Architect and such design professionals through the Design-Builder,for review and negotiation at least 14 days prior to the requested dates of execution.Neither the Design-Builder,the Architect nor such other design professionals shall be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of their respective agreements with the Owner or Design-Builder. §A.3.3 CONSTRUCTION §A.3.3.1 The Design-Builder shall perform no construction Work prior to the Owner's review and approval of the construction documents. The Design-Builder shall perform no portion of the Work for which the Design-Build Documents require the Owner's review of submittals, such as Shop Drawings,Product Data and Samples,until the Owner has approved each submittal. §A.3.3.2 The construction Work shall be in accordance with approved submittals, except that the Design-Builder shall not be relieved of responsibility for deviations from requirements of the Design-Build Documents by the Owner's approval of design and construction documents or other submittals such as Shop Drawings,Product Data, Samples or other submittals unless the Design-Builder has specifically informed the Owner in writing of such deviation at the,time of submittal and(1)the Owner has given written approval to the specific deviation as a minor change in the Work,or(2)a Change Order or Construction Change Directive has been issued authorizing the deviation.The Design-Builder shall not be relieved of responsibility for errors or omissions in design and construction documents or other submittals such as Shop Drawings,Product Data, Samples or other submittals by the Owner's approval thereof. §A.3.3.3 The Design-Builder shall direct specific attention,in writing or on resubmitted design and construction documents or other submittals such as Shop Drawings,Product Data, Samples or similar submittals,to revisions other than those requested by the Owner on previous submittals. In the absence of such written notice,the Owner's approval of a resubmission shall not apply to such revisions. §A.3.3.4 When the Design-Build Documents require that a Contractor provide professional design services or certifications related to systems, materials or equipment,or when the Design-Builder in its discretion provides such design services or certifications through a Contractor,the Design-Builder shall cause professional design services or certifications to be provided by a properly licensed design professional,whose signature and seal shall appear on all drawings, calculations, specifications,certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professionals,if prepared by others, shall bear such design professional's written approval. The Owner shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 9 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.3.3.5 The Design-Builder shall be solely responsible for and have control over all construction means,methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Design-Build Documents. §A.3.3.6 The Design-Builder shall keep the Owner informed of the progress and quality of the Work. §A.3.3.7 The Design-Builder shall be responsible for the supervision and direction of the Work,using the Design- Builder's best skill and attention. If the Design-Build Documents give specific instructions concerning construction means,methods,techniques, sequences or procedures,the Design-Builder shall evaluate the jobsite safety thereof and,except as stated below, shall be fully and solely responsible for the jobsite safety of such means,methods, techniques, sequences or procedures. If the Design-Builder determines that such means,methods,techniques, sequences or procedures may not be safe,the Design-Builder shall give timely written notice to the Owner and shall not,proceed with that portion of the Work without further written instructions from the Owner. If the Design-Builder is then instructed to proceed with the required means,methods,techniques, sequences or procedures without acceptance of changes proposed by the Design-Builder,the Owner shall be solely responsible for any resulting loss or damage. §A.3.3.8 The Design-Builder shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. §A.3.4 LABOR AND MATERIALS §A.3.4.1 Unless otherwise provided in the Design-Build Documents,the Design-Builder shall provide or cause to be provided and shall pay for design services, labor,materials, equipment,tools, construction equipment and machinery,water,heat,utilities,transportation and other facilities and services necessary for proper execution and completion of the Work,whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. §A.3.4.2 When a material is,specified in the Design-Build Documents,the Design-Builder may make substitutions only with the consent of the Owner and,if appropriate,in accordance with a Change Order. §A.3.4.3 The Design-Builder shall enforce strict discipline and good order among the Design-Builder's employees and other persons carrying out the Design-Build Contract. The Design-Builder shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. §A.3.5 WARRANTY §A.3.5.1 The Design-Builder warrants to the Owner that materials and equipment furnished under the Design-Build Documents will be of good quality and new unless otherwise required or permitted by the Design-Build Documents, that the Work will be free from defects not inherent in the quality required or permitted by law or otherwise, and that the Work will conform to the requirements of the Design-Build Documents. Work not conforming to these requirements,including substitutions not properly approved and authorized,may be considered defective. The Design-Builder's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Design-Builder,improper or insufficient maintenance,improper operation,or normal wear and tear and normal usage. If required by the Owner,the Design-Builder shall furnish satisfactory evidence as to the kind and quality of materials and equipment. §A.3.6 TAXES §A.3.6.1 The Design-Builder shall pay all sales,consumer,use and similar taxes for the Work provided by the Design Builder which had been legally enacted on the date of the Agreement,whether or not yet effective or merely scheduled to go into effect. §A.3.7 PERMITS,FEES AND NOTICES §A.3.7.1 The Design-Builder shall secure and pay for building and other permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Work which are customarily secured after execution of the Design-Build Contract and which were legally required on the date the Owner accepted the Design- Builder's proposal. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 10 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.3.7.2 The Design-Builder shall comply with and give notices required by laws, ordinances,rules,regulations and lawful orders of public authorities relating to the Project. §A.3.7.3 It is the Design-Builder's responsibility to ascertain that the Work is in accordance with applicable laws, ordinances, codes, rules and regulations. §A.3.7.4 If the Design-Builder performs Work contrary to applicable laws, ordinances, codes,rules and regulations, the Design-Builder shall assume responsibility for such Work and shall bear the costs attributable to correction. §A.3.8 ALLOWANCES §A.3.8.1 The Design-Builder shall include in the Contract Sum all allowances stated in the Design-Build Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct,but the Design-Builder shall not be required to employ persons or entities to which the Design- Builder has reasonable objection. §A.3.8.2 Unless otherwise provided in the Design-Build Documents: .1 allowances shall cover the cost to the Design-Builder of materials and equipment delivered at the site and all required taxes,less applicable trade discounts; .2 Design-Builder's costs for unloading and handling at the site,labor,installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; and .3 whenever costs are more than or less than allowances,the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect(1)the difference between actual costs and the allowances under Section A.3.8.2.1 and(2)changes in Design-Builder's costs under Section A.3.8.2.2. §A.3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in the Work. §A.3.9 DESIGN-BUILDER'S SCHEDULE §A.3.9.1 The Design-Builder,promptly after execution of the Design-Build Contract, shall prepare and submit for the Owner's information the Design-Builder's schedule for the Work. The schedule shall not exceed time limits and shall be in such detail as required under the Design-Build Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Design Build Documents, shall provide for expeditious and practicable execution of the Work and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. §A.3.9.2 The Design Builder shall prepare and keep current a schedule of submittals required by the Design-Build Documents. §A.3.9.3 The Design Builder shall perform the Work in general accordance with the most recent schedules submitted to the Owner. §A.3.10 DOCUMENTS AND SAMPLES AT THE SITE §A.3.10.1 The Design-Builder shall maintain at the site for the Owner one record copy of the drawings, specifications,addenda, Change Orders and other Modifications,in good order and marked currently to record field changes and selections made during construction,and one record copy of approved Shop Drawings,Product Data, Samples and similar required submittals. These shall be delivered to the Owner upon completion of the Work. §A.3.11 SHOP DRAWINGS,PRODUCT DATA AND SAMPLES §A.3.11.1 Shop Drawings are drawings,diagrams, schedules and other data specially prepared for the Work by the Design-Builder or a Contractor, Subcontractor,manufacturer, supplier or distributor to illustrate some portion of the Work. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 11 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.3.11.2 Product Data are illustrations, standard schedules,performance charts,instructions,brochures,diagrams and other information furnished by the Design-Builder to illustrate materials or equipment for some portion of the Work. §A.3.11.3>Samples are physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. §A.3.11.4 Shop Drawings,Product Data, Samples and similar submittals are not Design-Build Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Design-Build Documents the way by which the Design-Builder proposes to conform to the Design-Build Documents. §A.3.11.5 The Design-Builder shall review for compliance with the Design-Build Documents and approve and submit to the Owner only those Shop Drawings,Product Data, Samples and similar submittals required by the Design-Build Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. §A.3.11.6 By approving and submitting Shop Drawings,Product Data, Samples and similar submittals,the Design- Builder represents that the Design-Builder has determined and verified materials,field measurements and field constrncfion criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Design-Build Documents. §A.3.12 USE OF SITE §A.3.12.1 The Design-Builder shall confine operations at the site to areas permitted by law, ordinances,permits and the Design-Build Documents,and shall not unreasonably encumber the site with materials or equipment. §A.3.13 CUTTING AND PATCHING §A.3.13.1 The Design-Builder shall be responsible for cutting,fitting or patching required to complete the Work or to make its parts fit together properly. §A.3.13.2 The Design-Builder shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting,patching or otherwise altering such construction or by excavation.The Design-Builder shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld.The Design-Builder shall not unreasonably withhold from the Owner or a separate contractor the Design Builder's consent to cutting or otherwise altering the Work. §A.3.14 CLEANING UP §A.3.14.1 The Design-Builder shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Design-Build Contract. At completion of the Work,the Design- Builder shall remove from and about the Project waste materials,rubbish,the Design-Builder's tools, construction equipment,machinery and surplus materials. §A.3.14.2 If'the Design-Builder fails to clean up as provided in the Design-Build Documents,the Owner may do so and the cost thereof shall be charged to the Design-Builder. §A.3.15 ACCESS TO WORK §A.3.15.1 The Design-Builder shall provide the Owner access to the Work in preparation and progress wherever located. §A.3.16 ROYALTIES,PATENTS AND COPYRIGHTS §A.3.16.1 The Design-Builder shall pay all royalties and license fees. The Design-Builder shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner harmless from loss on account thereof,but shall not be responsible for such defense or loss when a particular design,process or product of a particular manufacturer or manufacturers is required or where the copyright violations are contained in drawings, specifications or other documents prepared by or furnished to the Design-Builder by the Owner.However,if the Design-Builder has reason to believe that the required design,process or product is an infringement of a copyright or AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 12 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) a patent,the Design-Builder shall be responsible for such loss unless such information is promptly furnished to the Owner. §A.3.17 INDEMNIFICATION §A.3.17.1 To the fullest extent permitted by law,the Design-Builder shall indemnify and hold harmless the Owner, Owner's consultants,and agents and employees of any of them from and against claims, damages,losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim,damage,loss or expense is attributable to bodily injury, sickness,disease or death or to injury to or destruction of tangible property other than the Work itself,but only to the extent caused by the negligent acts or omissions of the Design-Builder, Architect,a Contractor,a Subcontractor,anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim,damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Section A.3.17. §A.3.17.2 In'claims against any,person or entity indemnified under this Section A.3.17 by an employee of the Design Builder,the Architect,a Contractor,a Subcontractor,anyone directly or indirectly employed by them or anyone for whose acts they may be liable,the indemnification obligation under Section A.3.17.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Design-Builder,the Architect or a Contractor or a Subcontractor under workers' compensation acts,disability benefit acts or other employee benefit acts. ARTICLE A.4 DISPUTE RESOLUTION §A.4.1 CLAIMS AND DISPUTES §A.4.1.1 Definition. A Claim is a demand or assertion by one of the parties seeking,as a matter of right,adjustment or interpretation of Design-Build Contract terms,payment of money, extension of time or other relief with respect to the terms of the Design-Build Contract. The term"Claim"also includes other disputes and matters in question between the Owner and Design-Builder arising out of or relating to the Design-Build Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. §A.4.1.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the other party. §A.4.1.3 Continuing Performance.Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section A.9.7.1'and Article A.14,the Design-Builder shall proceed diligently with performance of the Design-Build Contract and the Owner shall continue to make payments in accordance with the Design-Build Documents. §A.4.1.4 Claims for Concealed or Unknown Conditions.If conditions are encountered at the site which are(1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Design- Build Documents or(2)unknown,physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Design Build Documents,then the observing party shall give notice to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Owner shall promptly investigate such conditions and,if they differ materially and cause an increase or decrease in the Design- Builder's cost of, or time required for,performance of any part of the Work, shall negotiate with the Design-Builder an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Design-Build Documents and that no change in the terms of the Design-Build Contract is justified,the Owner shall so notify the Design-Builder in writing, stating the reasons, Claims by the Design-Builder in opposition to such determination must be made within 21 days after the Owner has given notice of the decision. If the conditions encountered are materially different,the Contract Sum and Contract Time shall be equitably adjusted,but if the Owner and Design-Builder cannot agree on an adjustment in the Contract Sum or Contract Time,the adjustment shall proceed pursuant to Section A.4.2. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 13 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.4.1.5 Claims for Additional Cost.If the Design-Builder wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work.Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section A.10.6. §A.4.1.6 If the Design-Builder believes additional cost is involved for reasons including but not limited to(1)an order by the Owner to stop the Work where the Design-Builder was not at fault, (2)a written order for the Work issued by the Owner, (3)failure of payment by the Owner, (4)termination of the Design-Build Contract by the Owner, (5)Owner's suspension or(6)other reasonable grounds, Claim shall be filed in accordance with this Section A.4.1. §A4.1.7 Claims for Additional Time §A.4.1.7.1 If the Design-Builder wishes to make Claim for an increase in the Contract Time,written notice as provided herein shall be given. The Design-Builder's Claim shall include an estimate of the time and its effect on the progress of the Work.In the case of a continuing delay, only one Claim is necessary. §A.4.1.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time,could not have been reasonably anticipated and had an adverse effect on the scheduled construction. §A.4.1.8 Injury or Damage to Person or Property. If either party to the Design-Build Contract suffers injury or damage to person or,property because of an act or omission of the other party or of others for whose acts such party is legally responsible,written notice of such injury or damage,whether or not insured, shall be given to the other party within a reasonable time not exceeding'`10 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. §A.4.1.9 If unit prices are stated in the Design-Build Documents or subsequently agreed upon,and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Design Builder,the applicable unit prices shall be equitably adjusted. §A.4.1.10 Claims for Consequential Damages.Design-Builder and Owner waive Claims against each other for consequential damages arising out of or relating to the Design-Build Contract.This mutual waiver includes: .1 '' damages incurred by the Owner for rental expenses,for losses of use, income,profit,financing, business and reputation,and for loss of management or employee productivity or of the services of such persons;and .2 damages incurred by the Design-Builder for principal office expenses including the compensation of personnel stationed there,for losses of financing,business and reputation,and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable,without limitation,to all consequential damages due to either parry's termination in accordance with Article A.14.Nothing contained in this Section A.4.1.10 shall be deemed to preclude an award of liquidated direct damages,when applicable,in accordance with the requirements of the Design-Build Documents. §A.4.1.11 If the enactment or revision of codes, laws or regulations or official interpretations which govern the Project cause an increase or decrease of the Design-Builder's cost of, or time required for,performance of the Work, the Design-Builder shall be entitled to an equitable adjustment in Contract Sum or Contract Time. If the Owner and Design-Builder cannot agree upon an adjustment in the Contract Sum or Contract Time,the Design-Builder shall submit a Claim pursuant to Section A.4.1. §A.4.2 RESOLUTION OF CLAIMS AND DISPUTES §A.4.2.1 Decision by Neutral. Intentionally Deleted. §A.4.2.2 Decision by Owner.Except for those claims arising under Sections A.10.3 and A.10.5,the Owner shall provide an initial decision as to any claim submitted by the Design-Builder. An initial decision by the Owner shall be required as a condition precedent to mediation of all Claims between the Owner and Design-Builder arising prior to the date final payment is due,unless 30 days have passed after the Claim has been referred to the Owner with no decision having been rendered by the Owner. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 14 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.4.2.3 The initial decision pursuant to Section A.4.2.2 shall be in writing, shall state the reasons therefore and shall notify the parties of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject first to mediation under Section A.4.3 and thereafter to such other dispute resolution methods as provided in Section 6.2 of the Agreement or elsewhere in the Design-Build Documents. §A.4.2.4 In the event of a Claim against the Design-Builder,the Owner may,but is not obligated to,notify the surety,if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Design-Builder's default,the Owner may,but is not obligated to,notify the surety and request the surety's assistance in resolving the controversy. §A.4.2.5 If a Claim relates to or is the subject of a mechanic's lien,the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to initial resolution of the Claim. §A.4.3 MEDIATION §A.4.3.1 Any Claim arising out of or related to the Design-Build Contract, except those waived as provided for in Sections A.4.1.10,A.9.10.4 and A.9.10.5, shall,after initial decision of the Claim or 30 days after submission of the Claim for initial decision,be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party. §A.4.3.2 The parties shall endeavor to resolve their Claims by mediation which,unless the parties mutually agree otherwise, shall be in accordance with the provisions of Section 154.023,Texas CPRC. §A.4.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the county where the Project is located,unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. §A.4.4 ARBITRATION Intentionally Deleted. (Paragraphs deleted) ARTICLE A.5 AWARD OF CONTRACTS §A.5.1 Unless otherwise stated in the Design-Build Documents or the bidding or proposal requirements,the Design- Builder,as soon as practicable after award of the Design-Build Contract, shall furnish in writing to the Owner the names of additional persons or entities not originally included in the Design-Builder's proposal or in substitution of a person or entity(including those who are to furnish design services or materials or equipment fabricated to a special design)proposed for each principal portion of the Work. The Owner will reply to the Design-Builder in writing within fourteen(14)days stating whether or not the Owner has reasonable objection to any such proposed additional person or entity.Failure of the Owner to reply within said period shall constitute notice of no reasonable objection. §A.5.2 The Design-Builder shall not contract with a proposed person or entity to whom which the Owner has made reasonable and timely objection. The Design-Builder shall not be required to contract with anyone to whom the Design-Builder has made reasonable objection. §A.5.3 If the Owner has reasonable objection to a person or entity proposed by the Design-Builder,the Design- Builder shall propose another to whom the Owner has no reasonable objection. If the proposed but rejected additional person or entity was reasonably capable of performing the Work,the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change,and an appropriate Change Order shall be issued before commencement of the substitute person's or entity's Work.However,no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Design-Builder has acted promptly and responsively in submitting names as required. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 15 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.5.4 The Design-Builder shall not change a person or entity previously selected if the Owner makes reasonable objection to such substitute. §A.5.5 CONTINGENT ASSIGNMENT OF CONTRACTS §A.5.5.1 Each agreement for a portion of the Work is assigned by the Design-Builder to the Owner provided that: .1 assignment is effective only after termination of the Design-Build Contract by the Owner for cause pursuant to Section A.14.2 and only for those agreements which the Owner accepts by notifying the contractor in writing;and .2 assignment is subject to the prior rights of the surety,if any,obligated under bond relating to the Design-Build Contract. §A.5.5.2 Upon such assignment,if the Work has been suspended for more than 30 days,the Contractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. ARTICLE A.6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS §A.6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS §A.6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces and to award separate contracts in connection with other portions of the Project or other construction or operations on the site.The Design-Builder shall cooperate with the Owner and separate contractors whose work might interfere with the Design-Builder's Work. If the Design-Builder claims that delay or additional cost is involved because of such action by the Owner,the Design-Builder shall make such Claim as provided in Section A.4.1. §A.6.1.2 The term"separate contractor" shall mean any contractor retained by the Owner pursuant to Section A.6.1.1. §A.6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the work of the Design-Builder,who shall cooperate with them. The Design-Builder shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Design-Builder shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement.The construction schedules shall then constitute the schedules to be used by the Design-Builder, separate contractors and the Owner until subsequently revised. §A.6.2 MUTUAL RESPONSIBILITY §A.6.2.1 The Design-Builder shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities and shall connect and coordinate the Design Builder's construction and operations with theirs as required by the Design-Build Documents. §A.6.2.2 If part of the Design-Builder's Work depends for proper execution or results upon design,construction or operations by the Owner or a separate contractor,the Design-Builder shall,prior to proceeding with that portion of the Work,promptly report to the Owner apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results.Failure of the Design-Builder so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Design-Builder's Work, except as to defects not then reasonably discoverable. §A.6.2.3 The Owner shall be reimbursed by the Design-Builder for costs incurred by the Owner which are payable to a separate contractor because of delays,improperly timed activities or defective construction of the Design- Builder. The Owner shall be responsible to the Design-Builder for costs incurred by the Design-Builder because of delays,improperly timed activities,damage to the Work or defective construction of a separate contractor. §A.6.2.4 The Design-Builder shall promptly remedy damage wrongfully caused by the Design-Builder to completed or partially completed construction or to property of the Owner or separate contractors. §A.6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described in Section A.3.13. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 16 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.6.3 OWNER'S RIGHT TO CLEAN UP §A.6.3.1 If a dispute arises among the Design-Builder, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish,the Owner may clean up and the Owner shall allocate the cost among those responsible. ARTICLE A.7 CHANGES IN THE WORK §A.7.1 GENERAL §A.7.1.1 Changes in the Work may be accomplished after execution of the Design-Build Contract,and without invalidating the Design-Build Contract,by Change Order or Construction Change Directive, subject to the limitations stated in this Article A.7 and elsewhere in the Design-Build Documents. §A7.1.2 A Change Order shall be based upon agreement between the Owner and Design-Builder. A Construction Change Directive may be issued by the Owner with or without agreement by the Design-Builder. §A.7.1.3 Changes in the Work shall be performed under applicable provisions of the Design-Build Documents,and the Design-Builder shall proceed promptly,unless otherwise provided in the Change Order or Construction Change Directive. §A.7.2 CHANGE ORDERS §A.7.2.1 A Change Order is a written instrument signed by the Owner and Design-Builder stating their agreement upon all of the following: .1 a change in the Work; .2 the amount of the adjustment,if any, in the Contract Sum;and .3 the extent of the adjustment,if any,in the Contract Time. §A.7.2.2 If the Owner requests a proposal for a change in the Work from the Design-Builder and subsequently elects not to proceed with the change,a Change Order shall be issued to reimburse the Design-Builder for any costs incurred for,estimating services, design services or preparation of proposed revisions to the Design-Build Documents. §A.7.2.3 Methods used in determining adjustments to the Contract Sum may include those listed in Section A.7.3.3. §A.7.3 CONSTRUCTION CHANGE DIRECTIVES §A.7.3.1 A Construction Change Directive is a written order signed by the Owner directing a change in the Work prior to agreement on adjustment,if any,in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive,without invalidating the Design-Build Contract,order changes in the Work within the general scope of the Design-Build Documents consisting of additions, deletions or other revisions,the Contract Sum and Contract Time being adjusted accordingly. §A.7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. §A.7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum,the adjustment shall be based on one of the following methods: .1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; .2 unit prices stated in the Design-Build Documents or subsequently agreed upon,or equitably adjusted as provided in Section A.4.1.9; .3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or .4 as provided in Section A.7.3.6. §A.7.3.4 Upon receipt of a Construction Change Directive,the Design-Builder shall promptly proceed with the change in the Work involved and advise the Owner in writing within five (5)days of the Design-Builder's agreement or disagreement with the method,if any,provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 17 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.7.3.5 A Construction Change Directive signed by the Design-Builder indicates the agreement of the Design- Builder therewith,including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. §A.7.3.6 If the Design-Builder does not respond in writing within five(5)days or disagrees with the method for adjustment in the Contract Sum,the method and the adjustment shall be determined by the Owner on the basis of reasonable expenditures and savings of those performing the Work attributable to the change,including,in case of an increase in the Contract Sum,a reasonable allowance for overhead and profit. In such case,and also under Section A.7.3.3.3,the Design-Builder shall keep and present,in such form as the Owner may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Design-Build Documents, costs for the purposes of this Section A.7.3.6 shall be limited to the following: .1 additional costs of professional services; .2 costs of labor,including social security, old age and unemployment insurance,fringe benefits required by agreement or custom,and workers' compensation insurance; .3 costs of materials, supplies and equipment,including cost of transportation,whether incorporated or consumed; .4 rental costs of machinery and equipment, exclusive of hand tools,whether rented from the Design- Builder or others; .5 costs of premiums for all bonds and insurance,permit fees, and sales,use or similar taxes related to the Work;and .6 additional costs of supervision and field office personnel directly attributable to the change. §A.7.3.7 The amount of credit to be allowed by the Design-Builder to the Owner for a deletion or change that results in a net decrease in the Contract Sum shall be actual net cost. When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase,if any,with respect to that change. §A.7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner,amounts not in dispute for such changes,in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. For any portion of such cost that remains in dispute,the Owner shall make an interim determination for purposes of monthly payment for those costs. That determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of the Design-Builder to disagree and assert a Claim in accordance with Article A.4. §A.7.3.9 When the Owner and Design-Builder reach agreement concerning the adjustments in the Contract Sum and Contract Time,or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. §A.7.4 MINOR CHANGES IN THE WORK §A.7.4.1 The Owner shall have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Design-Build Documents. Such changes shall be effected by written order and shall be binding on the Design-Builder. The Design-Builder shall carry out such written orders promptly. ARTICLE A.8 TIME §A.8.1 DEFINITIONS §A.8.1.1 Unless otherwise provided, Contract Time is the period of time,including authorized adjustments,allotted in the Design-Build Documents for Substantial Completion of the Work. §A.8.1.2 The date of commencement of the Work shall be the date stated in the Agreement unless provision is made for the date to be fixed in a notice to proceed issued by the Owner. §A.8.1.3 The date of Substantial Completion is the date determined by the Owner in accordance with Section A.9.8. §A.8.1.4 The term"day" as used in the Design-Build Documents shall mean calendar day unless otherwise specifically defined. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 18 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.8.2 PROGRESS AND COMPLETION §A.8.2.1 Time limits stated in the Design-Build Documents are of the essence of the Design-Build Contract.By executing the Design-Build Contract,the Design-Builder confirms that the Contract Time is a reasonable period for performing the Work. §A.8.2.2 The Design-Builder shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence construction operations on the site or elsewhere prior to the effective date of insurance required by Article A.11 to be furnished by the Design-Builder and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance.Unless the date of commencement is established by the Design-Build Documents or a notice to proceed given by the Owner,the Design-Builder shall notify the Owner in writing not less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages,mechanic's liens and other security interests. §A.8.2.3 The Design-Builder shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. §A.8.3 DELAYS AND EXTENSIONS OF TIME §A.8.3.1 If the Design-Builder is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or of a separate contractor employed by the Owner,or by changes ordered in the Work,or by labor disputes,fire,unavoidable delay in deliveries,or unavoidable casualties or other causes beyond the control of Design Builder,its employees, agents,representatives,and/or subcontractors,or by delay authorized by the Owner pending resolution of disputes pursuant to the Design-Build Documents, or by other causes which the Owner in its sole discretion determines may justify delay,then the Contract Time shall be extended by Change Order for such reasonable time as the Owner may determine. §A.8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section A.4.1.7. §A.8.3.3 This Section A.8.3 does not preclude recovery of damages for delay by either party under other provisions of the Design-Build'Documents. ARTICLE A.9 PAYMENTS AND COMPLETION §A.9.1 CONTRACT SUM §A.9.1.1 The Contract Sum is stated in the Design-Build Documents and,including authorized adjustments,is the total amount payable by the Owner to the Design-Builder for performance of the Work under the Design-Build Documents. §A.9.2 SCHEDULE OF VALUES §A.9.2.1 Before the first Application for Payment,where the Contract Sum is based upon a Stipulated Sum or the Cost of the Work plus Contractor's Fee with a Guaranteed Maximum Price,the Design-Builder shall submit to the Owner an initial schedule of values allocated to various portions of the Work prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule,unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder's Applications for Payment. The schedule of values may be updated periodically to reflect changes in the allocation of the Contract Sum. §A.9.3 APPLICATIONS FOR PAYMENT §A.9.3.1 At least ten days before the date established for each progress payment,the Design-Builder shall submit to the Owner an itemized Application for Payment for operations completed in accordance with the current schedule of values. Such application shall be notarized,if required,and supported by such data substantiating the Design- Builder's right to,payment as the Owner may require, such as copies of requisitions from Contractors and material suppliers,and reflecting retainage if provided for in the Design-Build Documents: §A.9.3.1.1 As provided in Section A.7.3.8, such applications may include requests for payment on account of Changes in the Work which have been properly authorized by Construction Change Directives but are not yet included in Change Orders. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 19 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Design- Builder does not intend to pay to a Contractor or material supplier or other parties providing services for the Design- Builder,unless such Work has been performed by others whom the Design-Builder intends to pay. §A.9.3.2 Unless otherwise provided in the Design-Build Documents,payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner,payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Design-Builder with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. §A.9.3.3 The Design-Builder warrants that title to all Work other than Instruments of Service covered by an Application for Payment will pass to the Owner no later than the time of payment. The Design-Builder further warrants that,upon submittal of an Application for Payment,all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall be free and clear of liens, Claims, security interests or encumbrances in favor of the Design-Builder, Contractors, Subcontractors,material suppliers,or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. §A.9.4 ACKNOWLEDGEMENT OF APPLICATION FOR PAYMENT §A.9.4.1 The Owner shall,within ten(10)days after receipt of the Design-Builder's Application for Payment,issue to the Design-Builder a written acknowledgement of receipt of the Design-Builder's Application for Payment indicating the amount the Owner has determined to be properly due and,if applicable,the reasons for withholding payment in whole or in part. §A.9.5 DECISIONS TO WITHHOLD PAYMENT §A.9.5.1 The Owner may withhold a payment in whole or in part to the extent reasonably necessary to protect the Owner due to the Owner's determination that the Work has not progressed to the point indicated in the Application for Payment or that the quality of Work is not in accordance with the Design-Build Documents. The Owner may also withhold a payment or,because of subsequently discovered evidence,may nullify the whole or a part of an Application for Payment previously issued to such extent as may be necessary to protect the Owner from loss for which the Design-Builder is responsible,including loss resulting from acts and omissions,because of the following: .1 '' defective Work not remedied; .2 third-party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Design-Builder; .3 failure of the Design-Builder to make payments properly to Contractors or for design services labor, materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or a separate contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 persistent failure to carry out the Work in accordance with the Design-Build Documents. §A.9.5.2 When the above reasons for withholding payment are removed,payment will be made for amounts previously withheld. §A.9.6 PROGRESS PAYMENTS §A.9.6.1 After the Owner has issued a written acknowledgement of receipt of the Design-Builder's Application for Payment,the Owner shall make payment of the amount,in the manner and within the time provided in the Design- Build Documents. §A.9.6.2 The Design-Builder shall promptly pay the Architect,each design professional and other consultants retained directly by the Design-Builder,upon receipt of payment from the Owner, out of the amount paid to the Design-Builder on account of each such party's respective portion of the Work,the amount to which each such party is entitled. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 20 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.9.6.3 The Design-Builder shall promptly pay each Contractor,upon receipt of payment from the Owner,out of the amount paid to the Design-Builder on account of such Contractor's portion of the Work,the amount to which said Contractor is entitled,reflecting percentages actually retained from payments to the Design-Builder on account of the Contractor's portion of the Work.The Design-Builder shall,by appropriate agreement with each Contractor, require each Contractor to make payments to Subcontractors in a similar manner. §A.9.6.4 The Owner shall have no obligation to pay or to see to the payment of money to a Contractor except as may otherwise be required by law. §A.9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections A.9.6.3 and A.9.6.4. §A.9.6.6 A progress payment,or partial or entire use or occupancy of the Project by the Owner, shall not constitute acceptance of Work not in accordance with the Design-Build Documents. §A.9.6.7 Unless the Design-Builder provides the Owner with a payment bond in the full penal sum of the Contract Sum,payments received by the Design-Builder for Work properly performed by Contractors and suppliers shall be held,by the Design-Builder for those Contractors or suppliers who performed Work or furnished materials,or both, under contract with the Design-Builder for which payment was made by the Owner.Nothing contained herein shall require money to be placed in a separate account and not be commingled with money of the Design-Builder, shall create any fiduciary liability or tort liability on the part of the Design-Builder for breach of trust or shall entitle any person or entity to an award of punitive damages against the Design-Builder for breach of the requirements of this provision. §A.9.7 FAILURE OF PAYMENT §A.9.7.1 If for reasons other than those enumerated in Section A.9.5.1,the Owner does not issue a payment within the time period required by,Section 5.1.3 of the Agreement,then the Design-Builder may,upon seven additional days' written notice to the Owner, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Design Builder's reasonable costs of shut down, delay and start up,plus interest as provided for in the Design-Build Documents. §A.9.8 SUBSTANTIAL COMPLETION §A.9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Design-Build Documents so that the Owner can occupy or use the Work or a portion thereof for its intended use. §A.9.8.2 When,the Design Builder considers that the Work,or a portion thereof which the Owner agrees to accept separately,is substantially complete,the Design-Builder shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected prior to final payment.Failure to include an item on such list does not alter the responsibility of the Design-Builder to complete all Work in accordance with the Design-Build Documents. §A.9.8.3 Upon receipt of the Design-Builder's list,the Owner shall make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Owner's inspection discloses any item,whether or not included on the Design-Builder's list,which is not substantially complete,the Design-Builder shall complete or correct such item. In such case,the Design-Builder shall then submit a request for another inspection by the Owner to determine whether the Design-Builder's Work is substantially complete. §A.9.8.4 In the event of a dispute regarding whether the Design-Builder's Work is substantially complete,the dispute shall be resolved pursuant to Article A.4. §A.9.8.5 When the Work or designated portion thereof is substantially complete,the Design-Builder shall prepare for the Owner's signature an Acknowledgement of Substantial Completion which,when signed by the Owner, shall establish(1)the date of Substantial Completion of the Work, (2)responsibilities between the Owner and Design- Builder for security, maintenance,heat,utilities,damage to the Work and insurance, and(3)the time within which the Design-Builder shall finish all items on the list accompanying the Acknowledgement. When the Owner's inspection discloses that the Work or a designated portion thereof is substantially complete,the Owner shall sign the AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 21 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) Acknowledgement of Substantial Completion. Warranties required by the Design-Build Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Acknowledgement of Substantial Completion. §A.9.8.6 Upon execution of the Acknowledgement of Substantial Completion and consent of surety, if any,the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Design-Build Documents. §A.9.9 PARTIAL OCCUPANCY OR USE §A9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Design-Builder,provided such occupancy or use is consented to by the insurer,if so required by the insurer,and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Design-Builder have accepted in writing the responsibilities assigned to each of them for payments,retainage,if any, security, maintenance,heat,utilities, damage to the Work and insurance, and have agreed in writing concerning the period for completion or correction of the Work and commencement of warranties required by the Design-Build Documents. When the Design-Builder considers a portion substantially complete,the Design-Builder shall prepare and submit a list to the Owner as provided under Section A.9.8.2. Consent of the Design-Builder to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Design-Builder. §A.9.9.2 Immediately prior to such partial occupancy or use,the Owner and Design-Builder shall jointly inspect the area to be occupied or portion of the Work to be used to determine and record the condition of the Work. §A.9.9.3 Unless otherwise agreed upon,partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Design-Build Documents. §A.9.10 FINAL COMPLETION AND FINAL PAYMENT §A.9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment,the Owner shall promptly make such inspection and,when the Owner finds the Work acceptable under the Design-Build Documents and fully performed,the Owner shall, subject to Section A.9.102,promptly make final payment to,the Design-Builder. §A.9.10.2 Neither final payment nor any remaining retained percentage will become due until the Design-Builder submits to the Owner(1)an affidavit that payrolls,bills for materials and equipment,and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered(less amounts withheld by Owner)have been paid or otherwise satisfied, (2)a certificate evidencing that insurance required by the Design-Build Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least 30 days'prior written notice has been given to the Owner, (3)a written statement that the Design-Builder knows of no substantial reason that the insurance will not be renewable to cover the period required by the Design-Build Documents, (4)consent of surety,if any,to final payment,and(5)if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts,releases and waivers of liens, claims,security interests or encumbrances arising out of the Design-Build Contract,to the extent and in such form as may be designated by the Owner. If a Contractor refuses to furnish a release or waiver required by the Owner,the Design-Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made,the Design-Builder shall refund to the Owner all money that the Owner may be liable to pay in connection with the discharge of such lien,including all costs and reasonable attorneys'fees. §A.9.10.3 If,'after the Owner determines that the Design-Builder's Work or designated portion thereof is substantially completed,final completion thereof is materially delayed through no fault of the Design-Builder or by issuance of a Change Order or a Construction Change Directive affecting final completion,the Owner shall,upon application by the Design-Builder,make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Design-Build Documents,and if bonds have been furnished,the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Design-Builder. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 22 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. §A.9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from: .1 liens, Claims, security interests or encumbrances arising out of the Design-Build Documents and unsettled; .2 failure of the Work to comply with the requirements of the Design-Build Documents; or .3 terms of special warranties required by the Design-Build Documents. §A.9.10.5 Acceptance of final payment by the Design-Builder,a Contractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final;,Application for Payment. ARTICLE A.10 PROTECTION OF PERSONS AND PROPERTY §A.10.1 SAFETY PRECAUTIONS AND PROGRAMS §A.10.1.1 The Design-Builder shall be responsible for initiating and maintaining all safety precautions and programs in connection with the performance of the Design-Build Contract. §A.10.2 SAFETY OF PERSONS AND PROPERTY §A.10.2.1 The Design-Builder shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage,injury or loss to: .1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein,whether in storage on or off the site or under the care,custody or control of the Design-Builder or the Design-Builder's Contractors or Subcontractors;and .3 other,property at the site or adjacent thereto, such as trees, shrubs,lawns,walks,pavements, roadways, structures and utilities not designated for removal,relocation or replacement in the course of construction. §A.10.2.2 The Design-Builder shall give notices and comply with applicable laws, ordinances,rules,regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage,injury or loss. §A.10.2.3 The Design-Builder shall erect and maintain,as required by existing conditions and performance of the Design Build Documents,reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards,promulgating safety regulations and notifying owners and users of adjacent sites and utilities. §A.10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work,the Design-Builder shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. §A.10.2.5 The Design-Builder shall promptly remedy damage and loss(other than damage or loss insured under property insurance required by the Design-Build Documents)to property referred to in Sections A.10.2.1.2 and A.10.2.1.3 caused in whole or in part by the Design-Builder,the Architect,a Contractor,a Subcontractor,or anyone directly or indirectly employed by any of them or by anyone for whose acts they may be liable and for which the Design-Builder is responsible under Sections A.10.2.1.2 and A.10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or anyone directly or indirectly employed by the Owner,or by anyone for whose acts the Owner may,be liable, and not attributable to the fault or negligence of the Design-Builder. The foregoing obligations of the Design-Builder are in addition to the Design-Builder's obligations under Section A.3.17. §A.10.2.6 The Design-Builder shall designate in writing to the Owner a responsible individual whose duty shall be the prevention of accidents. §A.10.2.7 The Design-Builder shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 23 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.10.3 HAZARDOUS MATERIALS §A.10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance that is classified as a Hazardous Substance pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 960 lencountered on the site by the Design-Builder,the Design-Builder shall,upon recognizing the condition,immediately stop Work in the affected area and report the condition to the Owner. §A.10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Design-Builder and,in the event such material or substance is found to be present,to verify that it has been rendered harmless.Unless otherwise required by the Design-Build Documents,the Owner shall furnish in writing to the Design-Builder the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Design-Builder shall promptly reply to the Owner in writing stating whether or not the Design-Builder has reasonable objection to the persons or entities proposed by the Owner. If the Design-Builder has an objection to a person or entity proposed by the Owner,the Owner shall propose another to whom the Design-Builder has no reasonable objection. When the material or substance has been rendered harmless,work in the affected area shall resume upon written agreement of the Owner and Design-Builder. The Contract Time shall be extended appropriately, and the Contract Sum shall be increased in the amount of the Design Builder's reasonable additional costs of shutdown,delay and start-up,which adjustments shall be accomplished as provided in Article A.7. §A.10.3.3 To the fullest extent permitted by law,the Owner shall indemnify and hold harmless the Design-Builder, Contractors,Subcontractors,Architect, Architect's consultants and the agents and employees of any of them from and against Claims, damages,losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact a Hazardous Substance exists on site as of the date of the Agreement,is not disclosed in the Design-Build Documents and presents the risk of bodily injury or death as described in Section A.10.3.1 and has not been rendered harmless,provided that such Claim, damage,loss or expense is attributable to bodily injury, sickness, disease or death or to injury to or destruction of tangible property(other than the Work itself)to the extent that such damage,loss or expense is not due to the negligence of the Design-Builder, Contractors, Subcontractors,Architect,Architect's consultants and the agents and employees of any of them. §A.10.4 The Owner shall not be responsible under Section A.10.3 for materials and substances brought to the site by the Design-Builder unless such materials or substances were required by the Design-Build Documents. §A.10.5 If,without negligence on the part of the Design-Builder,the Design-Builder is held liable for the cost of remediation of a Hazardous Substance solely by reason of performing Work as required by the Design-Build Documents,the Owner,to the fullest extent permitted by law, shall indemnify the Design-Builder for all cost and expense thereby incurred. §A.10.6 EMERGENCIES §A.10.6.1 In'an emergency affecting safety of persons or property,the Design-Builder shall act,at the Design- Builder's discretion,to prevent threatened damage,injury or loss. Additional compensation or extension of time claimed by the Design-Builder on account of an emergency shall be determined as provided in Section A.4.1.7 and Article A.7.' ARTICLE A.11 INSURANCE AND BONDS §A.11.1 Except as may otherwise be set forth in the Agreement or elsewhere in the Design-Build Documents,the Owner and Design-Builder shall purchase and maintain the following types of insurance with limits of liability and deductible amounts and subject to such terms and conditions,as set forth in this Article A.11. §A.11.2 DESIGN-BUILDER'S LIABILITY INSURANCE §A.11.2.1 The Design-Builder shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Design-Builder from claims set forth below that may arise out of or result from the Design-Builder's operations under the Design-Build Contract and for which the Design-Builder may be legally liable,whether such operations be by the Design-Builder, AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 24 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) by a Contractor or by anyone directly or indirectly employed by any of them,or by anyone for whose acts any of them may be liable: .1 claims under workers' compensation,disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; .2 claims for damages because of bodily injury, occupational sickness or disease, or death of the Design- Builder's employees; .3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the Design-Builder's employees; .4 claims for damages insured by usual personal injury liability coverage; .5 claims for damages, other than to the Work itself,because of injury to or destruction of tangible property, including loss of use resulting therefrom; .6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership,maintenance or use of a motor vehicle; .7 claims for bodily injury or property damage arising out of completed operations;and .8 claims involving contractual liability insurance applicable to the Design-Builder's obligations under Section A.3.17. §A.11.2.2 The insurance required by Section A.11.2.1 shall be written for not less than limits of liability specified in the Design-Build Documents or required by law,whichever coverage is greater. Coverages,whether written on an occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. §A.11.2.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work.These certificates and the insurance policies required by this Section A.11.2 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final',payment and are reasonably available,an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Section A.9.10.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate,or both, shall be furnished by the Design-Builder with reasonable promptness in accordance with the Design-Builder's information and belief. §A.11.3 OWNER'S LIABILITY INSURANCE §A.11.3.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. §A.11.4 PROPERTY INSURANCE §A.11A.1 Unless otherwise provided,the Design-Builder,on behalf of Owner, shall purchase and maintain,in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located,property insurance written on a builder's risk, "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus the value of subsequent Design-Build Contract modifications and cost of materials supplied or installed by others,comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained,unless otherwise provided in the Design-Build Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance,until final payment has been made as provided in Section A.9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section A.11.4 to be covered,whichever is later. This insurance shall include interests of the Owner,Design-Builder, Contractors and Subcontractors in the Project. I §A.11.4.1.1 Intentionally Deleted. §A.11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Design-Build Contract and with all of the coverages in the amount described above,the Owner shall so inform the Design-Builder in writing prior to commencement of the Work. The Design-Builder may then effect insurance that will protect the interests of the Design-Builder, Contractors and Subcontractors in the Work,and,by appropriate Change Order,the cost thereof shall be charged to the Owner. If the Design-Builder is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above without so notifying the Design-Builder in writing,then the Owner shall bear all reasonable costs properly attributable thereto. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 25 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.11.4.1.3 If the property insurance requires deductibles,the Design-Builder shall pay costs not covered because of such deductibles,but only to the extent the loss is caused by the Design-Builder,a Subcontractor,or their agents or employees. Otherwise,the Owner shall pay costs not covered because of such deductibles. §A.11.4.1.4 This property insurance shall cover portions of the Work stored off the site and also portions of the Work in transit. §A.11.4.1.5 Partial occupancy or use in accordance with Section A.9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use,by endorsement or otherwise. The Owner and the Design-Builder shall take reasonable steps to obtain consent of the insurance company or companies and shall,without mutual written consent,take no action with respect to partial occupancy or use that would cause cancellation,lapse or reduction of insurance. §A.11.4.2 Boiler and Machinery Insurance. Intentionally Deleted. §A.11.4.3 Loss of Use Insurance.The Owner,at the Owner's option,may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards,however caused. The Owner waives all rights of action against the Design-Builder,Architect,the Design-Builder's other design professionals,if any, Contractors and Subcontractors for loss of use of the Owner's property, including consequential losses due to fire or other hazards,however caused. §A.11.4.4 If the Design-Builder requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the Owner shall,if possible, include such insurance,and the cost thereof shall be charged to the Design-Builder by appropriate Change Order. §A.11.4.5 If during the Project construction period the Owner insures properties,real or personal or both,at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period,the Owner shall waive all rights in accordance with the terms of Section A.11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. §A.11.4.6 Before an exposure to loss may occur,the Design-Builder shall file with the Owner a copy of each policy that includes insurance coverages required by this Section A.11.4.Each policy shall contain all generally applicable conditions,definitions,exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire and that its limits will not be reduced until at least 30 days' prior written notice has been given to the Owner. §A.11A.7 Waivers of Subrogation.The Owner and Design-Builder waive all rights against each other and any of their consultants, separate contractors described in Section A.6.1,if any, Contractors, Subcontractors,agents and employees, each of the other,and any of their contractors, subcontractors,agents and employees,for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section A.11.4 or other property insurance applicable to the Work,except such rights as they have to proceeds of such insurance held by the Design-Builder or Owner as fiduciary. The Owner or Design-Builder,as appropriate, shall require of the separate contractors described in Section A.6.1,if any, and the Contractors, Subcontractors,agents and employees of any of them,by appropriate agreements,written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification,contractual or otherwise, even though the person or entity did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. §A.11.4.8 A loss insured under Owner's or Design Builder's property insurance shall be adjusted by the Owner or Design-Builder as fiduciary and made payable to the Owner as fiduciary for the insureds,as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section A.11.4.10. The Design-Builder shall pay Contractors their just shares of insurance proceeds received by the Design-Builder,and,by appropriate AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 26 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) agreements,written where legally required for validity, shall require Contractors to make payments to their Subcontractors in similar manner. (Paragraph deleted) §A.11.4.9lntentionally Deleted. §A.11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power.; The Owner as fiduciary shall,in the case of a decision or award,make settlement with insurers in accordance with directions of a decision or award. §A.11.5 PERFORMANCE BOND AND PAYMENT BOND §A.I11.5.1 The Owner shall require the Design-Builder to furnish bonds covering faithful performance of the Design- Build Contract and payment of obligations arising thereunder prior tocommencement of any Work. ARTICLE A.12 UNCOVERING AND CORRECTION OF WORK §A.12.1 UNCOVERING OF WORK §A.12.1.1 If'a portion of the Work is covered contrary to requirements specifically expressed in the Design-Build Documents,it must be uncovered for the Owner's examination and be replaced at the Design-Builder's expense without change in the Contract Time or Contract Sum. §A.12.1.2 If,a portion of the Work has been covered which the Owner has not specifically requested to examine prior to its being covered,the Owner may request to see such Work and it shall be uncovered by the Design-Builder. If such Work is in accordance with the Design-Build Documents, costs of uncovering and replacement shall,by appropriate Change Order,be at the Owner's expense. If such Work is not in accordance with the Design-Build Documents,correction shall be at the Design-Builder's expense unless the condition was caused by the Owner or a separate contractor,in which event the Owner shall be responsible for payment of such costs. §A.12.2 CORRECTION OF WORK §A.12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION. §A.12.2.1.1 The Design-Builder shall promptly correct Work rejected by the Owner or failing to conform to the requirements of the Design-Build Documents,whether discovered before or after Substantial Completion and whether or not fabricated,installed or completed. Costs of correcting such rejected Work,including additional testing,shall be at the Design-Builder's expense. §A.12.2.2 AFTER SUBSTANTIAL COMPLETION §A.12.2.2.1 In addition to the Design-Builder's obligations under Section A.3.5,if,within one year after the date of Substantial Completion or after the date for commencement of warranties established under Section A.9.8.5 or by terms of an applicable special warranty required by the Design-Build Documents,any of the Work is found to be not in accordance with the requirements of the Design-Build Documents,the Design-Builder shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Design-Builder a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition. During the one-year period for correction of Work,if the Owner fails to notify the Design-Builder and give the Design-Builder an opportunity to make the correction,the Owner waives the rights to require correction by the Design-Builder and to make a claim for breach of warranty. If the Design-Builder fails to correct non-conforming Work within a reasonable time during that period after receipt of notice from the Owner,the Owner may correct it in accordance with Section A.2.5. §A.12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. §A.12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the Design-Builder pursuant to this Section A.12.2. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 27 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.12.2.3 The Design-Builder shall remove from the site portions of the Work which are not in accordance with the requirements of the Design-Build Documents and are neither corrected by the Design-Builder nor accepted by the Owner. §A.12.2.4 The Design-Builder shall bear the cost of correcting destroyed or damaged construction,whether completed or partially completed, of the Owner or separate contractors caused by the Design-Builder's correction or removal of Work which is not in accordance with the requirements of the Design-Build Documents. §A.12.2.5 Nothing contained in this Section A.12.2 shall be construed to establish a period of limitation with respect to other obligations the Design-Builder might have under the Design-Build Documents.Establishment of the one- year period for correction of Work as described in Section A.12.2.2 relates only to the specific obligation of the Design-Builder to correct the Work,and has no relationship to the time within which the obligation to comply with the Design-Build Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to correct the Work. §A.12.3 ACCEPTANCE OF NONCONFORMING WORK §A.12.3.1 If'the Owner prefers to accept Work not in accordance with the requirements of the Design-Build Documents,the Owner may do so instead of requiring its removal and correction,in which case the Contract Sum will be equitably adjusted by Change Order. Such adjustment shall be effected whether or not final payment has been made. ARTICLE A.13 MISCELLANEOUS PROVISIONS §A.13.1 GOVERNING LAW §A.131.1 The Design-Build Contract shall be governed by the law of the place where the Project is located. §A.13.2 SUCCESSORS AND ASSIGNS §A.13.2.1 The Owner and Design-Builder respectively bind themselves,their partners, successors,assigns and legal representatives to the other party hereto and to partners, successors,assigns and legal representatives of such other party in respect to covenants,agreements and obligations contained in the Design-Build Documents.Except as provided in Section A.13.2.2,neither party to the Design-Build Contract shall assign the Design-Build Contract as a whole without 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 Design-Build Contract. §A.13.2.2 The Owner may,without consent of the Design-Builder,assign the Design-Build Contract to an institutional lender providing construction financing for the Project. In such event,the lender shall assume the Owner's rights and obligations under the Design-Build Documents. The Design-Builder shall execute all consents reasonably required to facilitate such assignment. §A.13.3 WRITTEN NOTICE §A.13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm or entity or to an officer of the corporation for which it was intended, or if sent by registered or certified mail to the last business address known to the party giving notice. §A.13.4 RIGHTS AND REMEDIES §A.13.4.1 Duties and obligations imposed by the Design-Build Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations,rights and remedies otherwise imposed or available by law. §A.13.4.2 No action or failure to act by the Owner or Design-Builder shall constitute a waiver of a right or duty afforded them under the Design-Build Documents,nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder,except as may be specifically agreed in writing. §A.13.5 TESTS AND INSPECTIONS §A.13.5.1 Tests,inspections and approvals of portions of the Work required by the Design-Build Documents or by laws, ordinances,rules,regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided,the Owner shall make arrangements for such tests,inspections and approvals with AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 28 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) an independent testing laboratory or entity and shall bear all related costs of tests,inspections and approvals. The Owner shall give timely notice of when and where tests and inspections are to be made so that the Design-Builder may be present for such procedures. §A.13.5.2 Intentionally Deleted. §A.13.5.3 If such procedures for testing,inspection or approval under Section A.13.5.1 reveal failure of the portions of the Work to comply with requirements established by the Design-Build Documents,all costs made necessary by such failure,including those of repeated procedures, shall be at the Design-Builder's expense. §A.13.5.4 Required certificates of testing,inspection or approval shall,unless otherwise required by the Design- Build Documents,be secured by the Owner. §A.13.5.5 Intentionally Deleted. §A.13.5.6 Tests or inspections conducted pursuant to the Design-Build Documents shall be made promptly to avoid unreasonable delay in the Work. §A.13.6 COMMENCEMENT OF STATUTORY LIMITATION PERIOD §A.13.6.1 As between the Owner and Design-Builder: .1 Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion,any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; .2 Between Substantial Completion and Final Application for Payment. As to acts or failures to act occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final Application for Payment,any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of issuance of the final Application for Payment;and .3 After Final Application for Payment. As to acts or failures to act occurring after the relevant date of issuance of the final Application for Payment,any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Design-Builder pursuant to any Warranty provided under Section A.3.5,'the date of any correction of the Work or failure to correct the Work by the Design-Builder under Section A.12.2,or the date of actual commission of any other act or failure to perform any duty or obligation by the Design-Builder or Owner,whichever occurs last. ARTICLE A.14 TERMINATION OR SUSPENSION OF THE DESIGN/BUILD CONTRACT §A.14.1 TERMINATION BY THE DESIGN-BUILDER §A.14.1.1 The Design-Builder may terminate the Design-Build Contract if the Work is stopped for a period of 60 consecutive days through no act or fault of the Design-Builder or a Contractor, Subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder,for any of the following reasons: .1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; .2 an act of government, such as a declaration of national emergency which requires all Work to be stopped; or .3 the Owner has failed to make payment to the Design-Builder in accordance with the Design-Build Documents. §A.14.1.2 The Design-Builder may terminate the Design-Build Contract if,through no act or fault of the Design- Builder or a Contractor, Subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder,repeated suspensions,delays or interruptions of the entire Work by the Owner,as described in Section A.14.3, constitute in the aggregate more than 100 percent of the total number of days scheduled for completion,or 120 days in any 365-day period,whichever is less. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 29 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.14.1.3 If one of the reasons described in Sections A.14.1.1 or A.14.1.2 exists,the Design-Builder may,upon seven days' written notice to the Owner,terminate the Design-Build Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials,equipment,tools, and construction equipment and machinery, including reasonable overhead,profit and damages allocable to the portion of Work actually executed. §A.14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Design-Builder or a Contractor or their agents or employees or any other persons performing portions of the Work under a direct or indirect contract with the Design-Builder because the Owner has persistently failed to fulfill the Owner's obligations under the Design-Build Documents with respect to matters important to the progress of the Work,the Design- Builder may,upon seven additional days' written notice to the Owner,terminate the Design-Build Contract and recover from the Owner as,provided in Section A.14.1.3. §A.14.2 TERMINATION BY THE OWNER FOR CAUSE §A.14.2.1 The Owner may terminate the Design-Build Contract if the Design-Builder: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Contractors for services,materials or labor in accordance with the respective agreements between the Design-Builder and the Architect and Contractors; .3 persistently disregards laws, ordinances or rules,regulations or orders of a public authority having jurisdiction;or .4 otherwise is guilty of substantial breach of a provision of the Design-Build Documents. §A.14.2.2 When any of the above reasons exist,the Owner may without prejudice to any other rights or remedies of the Owner and after giving the Design-Builder and the Design-Builder's surety, if any, seven days' written notice, terminate employment of the Design-Builder and may, subject to any prior rights of the surety: .1 take possession of the site and of all materials,equipment,tools, and construction equipment and machinery thereon owned by the Design-Builder; .2 accept assignment of contracts pursuant to Section A.5.5.1;and .3 finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Design-Builder,the Owner shall furnish to the Design-Builder a detailed accounting of the costs incurred by the Owner in finishing the Work. §A.14.2.3 When the Owner terminates the Design-Build Contract for one of the reasons stated in Section A.14.2.1, the Design-Builder shall not be entitled to receive further payment until the Work is finished. §A.14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Design-Builder. If such costs and damages exceed the unpaid balance,the Design-Builder shall pay the difference to the Owner. §A.14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE §A.14.3.1 The Owner may,without cause, order the Design-Builder in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. §A.14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension,delay or interruption as described in Section A.14.3.1. Adjustment of the Contract Sum shall include profit.No adjustment shall be made to the extent: .1 that performance is,was or would have been so suspended,delayed or interrupted by another cause for which the Design-Builder is responsible; or .2 that an equitable adjustment is made or denied under another provision of the Design-Build Contract. §A.14.4 TERMINATION BY THE OWNER FOR CONVENIENCE §A.14.4.1 The Owner may, at any time,terminate the Design-Build Contract for the Owner's convenience and without cause. §A.14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience,the Design-Builder shall: AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 30 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) .1 cease operations as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct,for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of termination stated in the notice,terminate all existing contracts and purchase orders and enter into no further contracts and purchase orders. §A.14.4.3 In the event of termination for the Owner's convenience prior to commencement of construction,the Design-Builder shall be entitled to receive payment for design services performed. In case of termination for the Owner's convenience after commencement of construction,the Design-Builder shall be entitled to receive payment for Work executed and costs incurred by reason of such termination,along with reasonable overhead and profit on the Work actually executed. §A.15 EQUAL OPPORTUNITY §A.15.1 The Design/Builder shall maintain policies of employment as follows: §A.15.1.1 The Design/Builder and Design/Builder's Sub-Contractors shall not discriminate against any employee or applicant for employment because of race,religion, color, sex or national origin. The Design/Builder shall take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race,religion,color, sex or national origin. Such actions shall include,but not be limited to,the following: employment,upgrading,demotion or transfer;recruitment or recruitment advertising;layoff or termination.rates of pay or other forms of compensation;and selection for training,including apprenticeship. The Design/Builder agrees to post in conspicuous places,available to employees and applicants for employment,notices setting forth the policies of nondiscrimination. §A.15.1.2 The Design/Builder and the Design/Builder's Sub-Contractors shall,in all solicitations or advertisements for employees placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race,religion,color, sex or national origin. §A.16 -WORKING RESTRICTIONS §A.16.1 THE ENTIRE BUILDING IS ALCOHOL-FREE AT ALL TIMES AND APPLIES TO ALL OCCUPANTS. AIA Document A141 TM-2004 Exhibit A.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 31 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) Additions and Deletions Report for AIA®Document A 141 TM— 2004 Exhibit A 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 15:49:50 on 10/05/2011. PAGE 1 ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction City of Wylie 949 Hensley Lane Wylie, TX 75098 City of Wylie 300 Country Club Wylie, TX 75098 Pulliam Construction Management,Inc. P. 0 Box 1132 Wylie, TX 75098 PAGE 3 §A.1.1.8 NEUTRAL The Neutral is the individual appointed by the parties to decide Claims and disputes pursuant to Section A.4.2.1. PAGE 4 §A.1_6.4 If this Agreement is terminated for any reason other than the default of the Owner, each of the Design- Builder's design professionals,including the Architect, shall be contractually required to convey to the Owner a non-exclusive license to use that design professional's Instruments of Service for the completion,use and maintenance of the Project, conditioned upon the Owner's written notice to that design professional of the Owner's substitute contractor engaged by Owner and its assumption of the Design-Builder's contractual duties and obligations to that design professional and payment to that design professional of all amounts due to that design professional and its consultants. If the Owner does not assume the remaining duties and obligations of the Design Builder to that design professional under this Agreement,then the Owner shall indemnify and hold harmless that design professional from all claims and any expense, including legal fees,which that design professional shall thereafter incur by reason of the Owner's use of such Instruments of Service. The Design-Builder shall incorporate the requirements of this Section A.1.6.4 in all agreements with its design professionals. PAGE 5 Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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® 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.1.6.6 Any licenses granted the Owner under this Section A.1.6 are conditioned upon and shall not be valid or effective until the Owner has paid the Design-Builder all sums due under the Contract Documents for its design services. §A.1.6.7 The Instruments of Service are prepared through the Design-Builder solely for use by the Design-Builder to,construct the Project and may not be suitable for use by a substitute design-builder or others without direct involvement in the creation of the Instruments of Service. Accordingly, and notwithstanding anything to the contrary in the Contract Documents,if the Owner terminates the Agreement for convenience or for any reason other than for cause prior to completion of the construction of the Work by the Design-Builder,or if the Design-Builder terminates the Agreement for cause for a default of the Owner,the Design-Builder shall not be liable to the Owner or the substitute design-builder for any claim,damage,loss, expense or other liability arising out of or related to Instruments of Service or other elements of the design of the Project,it being understood that the sole rights and recourse of the Owner and substitute design-builder shall be against the Architect and such other design professionals whose agreements are assumed in writing by the Owner or substitute design-builder pursuant to Section A.16.4. §A.1.6.8 Any use of the Instruments of Service in contravention of this Section A.1.6 by the Owner,a substitute design-builder or other parties by or through the Owner shall be at their sole risk and expense without liability to the Design Builder,the Architect or their design professionals. §A.2.1.2 The Owner shall furnish to the Design Builder within 15 days after receipt of a written request information necessary and relevant for the Design Builder to evaluate,give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site,and the Owner's interest therein. PAGE 6 §A.2.2.10 The Owner shall furnish the services of geotechnical engineers or other consultants,if not required by the Design-Build Documents to be provided by the Design-Builder,for subsoil,air and water conditions when such services are deemed reasonably necessary by the Design-Builder to properly carry out the design services provided by the Design-Builder and the Design-Builder's Architect. Such services may include,but are not limited to,test borings,test pits,determinations of soil bearing values,percolation tests,evaluations of hazardous materials,ground corrosion and resistivity tests,and necessary operations for anticipating subsoil conditions. The services of geotechnical engineer(s)or other consultants shall include preparation and submission of all appropriate reports and professional recommendations. As a convenience to the Owner,the Design-Builder has included the cost of obtaining a geotechnical report form a third-party engineer in the design compensation payable to the Design Builder. However, such report shall be deemed furnished by the Owner,and the Design-Builder shall be entitled to rely on the accuracy and completeness thereof per Section A.2.2.6 and shall not be responsible for any errors or omissions in the report. PAGE 7 §A.2.3.10 The Owner shall engage,independently of the Design-Builder,a firm or firms for testing of construction materials engineering and the verification testing services necessary for acceptance of the Work. PAGE 8 §A.3.2.5 The Design-Builder shall provide to the Owner for Owner's written approval design documents sufficient to establish the size,quality and character of the Project;its architectural, structural,mechanical and electrical systems; and the materials and such other elements of the Project to the extent required by the Design-Build Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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° 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) Documents. Documents prior to commencement of construction.Deviations,if any,from the Design-Build Documents shall be disclosed in writing. PAGE 9 §A.3.2.7 The Design-Builder shall meet with the Owner periodically no less frequently than once every two(2) weeks to review progress of the design and construction documents. §A.3.2.9 The Design-Builder shall obtain from each of the Design-Builder's professionals and furnish to the Owner certifications with respect to the documents and services provided by such professionals(a)that,to the best of their knowledge,information and belief,the documents or services to which such certifications relate(i)are consistent with the Project Criteria set forth in the Design-Build Documents,except to the extent specifically identified in such certificate, (ii)comply with,applicable professional practice standards,and(iii)comply with applicable laws, ordinances,codes, rules and regulations governing the design of the Project; and(b)that the Owner and its consultants shall be entitled to rely upon the accuracy of the representations and statements contained in such certifications.certifications,>as well as any other certificates in the form and manner required by law. PAGE 14 §A.4.1.8 Injury or Damage to Person or Property. If either party to the Design-Build Contract suffers injury or damage to person or,property because of an act or omission of the other party or of others for whose acts such party is legally responsible,written notice of such injury or damage,whether or not insured, shall be given to the other party within a reasonable time not exceeding 24-10 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. §A.4.2.1 Decision by Neutral. If the parties have identified a Neutral in Section 6.1 of the Agreement or elsewhere in the Design Build Documents,then Claims, excluding those arising under Sections A.10.3 through A.10.5, shall be referred initially to the Neutral for decision. An initial decision by the Neutral shall be required as a condition precedent to mediation of all Claims between the Owner and Design Builder arising prior to the date final payment is due,unless 30 days have passed after the Claim has been referred to the Neutral with no decision having been rendered by,the Neutral.Unless the Neutral and all affected parties agree,the Neutral will not decide disputes between the Design Builder and persons or entities other than the Owner.Intentionallly Deleted. §A.4.2.2 Decision by Owner.If the parties have not identified a Neutral in Section 6.1 of the Agreement or elsewhere in the Design Build Documents then, except Except for those claims arising under Sections A.10.3 and A.10.5,the Owner shall provide an initial decision. decision as to any claim submitted by the Design-Builder. An initial decision by the Owner shall be required as a condition precedent to mediation of all Claims between the Owner and Design-Builder arising prior to the date final payment is due,unless 30 days have passed after the Claim has been referred to the Owner with no decision having been rendered by the Owner. §A.4.2.3 The initial decision pursuant to Sections A.4.2.1 and Section A.4.2.2 shall be in writing, shall state the reasons therefore and shall notify the parties of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject first to mediation under Section A.4.3 and thereafter to such other dispute resolution methods as provided in Section 6.2 of the Agreement or elsewhere in the Design-Build Documents. PAGE 15 §A.4.3.1 Any Claim arising out of or related to the Design-Build Contract, except those waived as provided for in Sections A.4.1.10,A.9.10.4 and A.9.10.5, shall,after initial decision of the Claim or 30 days after submission of the Claim for initial decision,be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable or other binding dispute resolution proceedings by either party. Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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 law. This document was produced by AIA software at 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.4.3.2 The parties shall endeavor to resolve their Claims by mediation which,unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation.Request for mediation shall be filed in writing with the other party to the Design Build Contract and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration or other binding dispute resolution proceedings but,in such event,mediation shall proceed in advance thereof or of legal or equitable proceedings,which shall be stayed pending mediation for a period of 60 days from the date of filing,unless stayed for a longer period by agreement of the parties or court order.provisions of Section 154.023,Texas CPRC. §A.4.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the pliaee-county where the Project is located,unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. Intentionally Deleted. §A.4.4.1 Claims,except those waived as provided for in Sections A.4.1.10,A.9.10.4 and A.9.10.5,for which initial decisions have not become final and binding,and which have not been resolved by mediation but which are subject to arbitration pursuant to Sections 6.2 and 6.3 of the Agreement or elsewhere in the Design Build Documents, shall be decided by arbitration which,unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect at the time of the arbitration.The demand for arbitration shall be filed in writing with the other party to the Design Build Contract and with the American Arbitration Association. §A.4.4.2 A demand for arbitration may be made no earlier than concurrently with the filing of a request for mediation,but in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Section A.13.6. §A.4.4.3 An arbitration pursuant to this Section A.4.4 may be joined with an arbitration involving common issues of law or fact between the Owner or Design Builder and any person or entity with whom the Owner or Design Builder has a contractual obligation to arbitrate disputes which does not prohibit consolidation or joinder. No other arbitration arising out of or relating to the Design Build Contract shall include,by consolidation,joinder or in any other manner,an additional person or entity not a party to the Design Build Contract or not a party to an agreement with the Owner or Design Builder,except by written consent containing a specific reference to the Design Build Contract signed by the Owner and Design Builder and any other person or entities sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to the Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. § n n n n Cia n .»,Timely Assertion of Claims. demand all Claims then known to that party on which arbitration is permitted to be demanded. §A.4.4.5 Judgment on Final Award.The award rendered by the arbitrator or arbitrators shall be final,and judgment may,be entered upon it in accordance with applicable law in any court having jurisdiction thereof. §A.5.1 Unless otherwise stated in the Design-Build Documents or the bidding or proposal requirements,the Design- Builder,as soon as practicable after award of the Design-Build Contract, shall furnish in writing to the Owner the names of additional persons or entities not originally included in the Design-Builder's proposal or in substitution of a person or entity(including those who are to furnish design services or materials or equipment fabricated to a special design)proposed for each principal portion of the Work. The Owner will promptly reply to the Design- Builder in writing within fourteen(14)days stating whether or not the Owner has reasonable objection to any such Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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° 4 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) proposed additional person or entity. Failure of the Owner to reply promptly within said period shall constitute notice of no reasonable objection. PAGE 17 §A.7.3.4 Upon receipt of a Construction Change Directive,the Design-Builder shall promptly proceed with the change in the Work involved and advise the Owner in writing within five(5)days of the Design-Builder's agreement or disagreement with the method,if any,provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. PAGE 18 §A.7.3.6 If the Design Builder does not respond promptly in writing within five(5)days or disagrees with the method for adjustment in the Contract Sum,the method and the adjustment shall be determined by the Owner on the basis of reasonable expenditures and savings of those performing the Work attributable to the change,including,in case of an increase in the Contract Sum,a reasonable allowance for overhead and profit. In such case,and also under Section A.7.3.3.3,the Design Builder shall keep and present,in such form as the Owner may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Design-Build Documents, costs for the purposes of this Section A.7.3.6 shall be limited to the following: PAGE 19 §A.8.3.1 If the Design-Builder is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or of a separate contractor employed by the Owner,or by changes ordered in the Work,or by labor disputes,fire,unusual unavoidable delay in deliveries,or unavoidable casualties or other causes beyond the Design Builder's control,control of Design Builder,its employees, agents,representatives, and/or subcontractors,or by delay authorized by the Owner pending resolution of disputes pursuant to the Design-Build Documents,or by other causes which the Owner in its sole discretion determines may justify delay,then the Contract Time shall be extended by Change Order for such reasonable time as the Owner may determine. PAGE 20 §A.9.3.3 The Design-Builder warrants that title to all Work other than Instruments of Service covered by an Application for Payment will pass to the Owner no later than the time of payment. The Design-Builder further warrants that,upon submittal of an Application for Payment,all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall,to the best of the Design Builder's knowledge, information and belief, shall be free and clear of liens, Claims, security interests or encumbrances in favor of the Design-Builder,Contractors, Subcontractors,material suppliers,or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. §A.9.4.1 The Owner shall,within seven ten(10)days after receipt of the Design-Builder's Application for Payment, issue to the Design-Builder a written acknowledgement of receipt of the Design-Builder's Application for Payment indicating the amount the Owner has determined to be properly due and,if applicable,the reasons for withholding payment in whole or in part. PAGE 21 §A.9.7.1 If for reasons other than those enumerated in Section A.9.5.1,the Owner does not issue a payment within the time period required by Section 5.1.3 of the Agreement,then the Design-Builder may,upon seven additional days' written notice to the Owner, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Design-Builder's reasonable costs of shutdown, shut down, delay and start up, start up,plus interest as provided for in the Design-Build Documents. PAGE 24 Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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° 5 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance,including but not limited to asbestos or polychlorinated biphenyl(PCB), encountered substance that is classified as a Hazardous Substance pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 960 lencountered on the site by the Design- Builder,the Design-Builder shall,upon recognizing the condition,immediately stop Work in the affected area and report the condition to the Owner. §A.10.3.3 To the fullest extent permitted by law,the Owner shall indemnify and hold harmless the Design-Builder, Contractors,;Subcontractors,Architect, Architect's consultants and the agents and employees of any of them from and against Claims, damages,losses and expenses,including but not limited to attorneys'fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance a Hazardous Substance exists on site as of the date of the Agreement,is not disclosed in the Design-Build Documents and presents the risk of bodily injury or death as described in Section A.10.3.1 and has not been rendered harmless, provided that such Claim,damage,loss or expense is attributable to bodily injury, sickness,disease or death or to injury to or destruction of tangible property(other than the Work itself)to the extent that such damage,loss or expense is not due to the negligence of the Design-Builder,Contractors, Subcontractors,Architect, Architect's consultants and the agents and employees of any of them. §A.10.5 If,without negligence on the part of the Design-Builder,the Design-Builder is held liable for the cost of remediation of a hazardous material or substance Hazardous Substance solely by reason of performing Work as required by the Design-Build Documents,the Owner Owner,to the fullest extent permitted by law, shall indemnify the Design-Builder for all cost and expense thereby incurred. PAGE 25 §A.11.4.1 Unless otherwise,provided,the Owner Design-Builder,on behalf of Owner, shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk, "all-risk"or equivalent policy form in the amount of the initial Contract Sum,plus the value of subsequent Design-Build Contract modifications and cost of materials supplied or installed by others,comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained,unless otherwise provided in the Design-Build Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance,until final',payment has been made as provided in Section A.9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section A.11.4 to be covered,whichever is later. This insurance shall include interests of the Owner,Design-Builder, Contractors and Subcontractors in the Project. §A.11.4.1.1 Property insurance shall be on an"all risk"or equivalent policy form and shall include,without limitation,insurance against the perils of fire(with extended coverage)and physical loss or damage including, without duplication of coverage,theft,vandalism,malicious mischief, collapse, earthquake,flood,windstorm, falsework,testing and startup,temporary buildings and debris removal, including demolition occasioned by enforcement of any applicable legal requirements,and shall cover reasonable compensation for Design Builder's services and expenses required as a result of such insured loss.Intentionally Deleted. PAGE 26 §A.11.4.1.3 If the property insurance requires deductibles,the Design-Builder shall pay costs not covered because of such deductibles,but only to the extent the loss is caused by the Design-Builder,a Subcontractor,or their agents or employees. Otherwise,the Owner shall pay costs not covered because of such deductibles. Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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° 6 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) §A.11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and machinery insurance required by the Design Build Documents or by law,which shall specifically cover such insured objects during installation and until final acceptance by the Owner;this insurance shall include interests of the Owner,Design Builder, Contractors and Subcontractors in the Work,and the Owner and Design Builder shall be named insurcds.Intentionally Deleted. §A.11.4.6 Before an exposure to loss may occur,the Owner Design-Builder shall file with the Design Builder Owner a copy of each policy that includes insurance coverages required by this Section A.11.4.Each policy shall contain all generally applicable conditions,definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire and that its limits will not be reduced until at least 30 days' prior written notice has been given to the Design Builder.Owner. §A.11.4.7 Waivers of Subrogation.The Owner and Design-Builder waive all rights against each other and any of their consultants,separate contractors described in Section A.6.1,if any, Contractors, Subcontractors,agents and employees, each of the other,and any of their contractors, subcontractors,agents and employees,for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section A.11.4 or other property insurance applicable to the Work,except such rights as they have to proceeds of such insurance held by the Design-Builder or Owner as fiduciary. The Owner or Design-Builder,as appropriate, shall require of the separate contractors described in Section A.6.1,if any, and the Contractors, Subcontractors,agents and employees of any of them,by appropriate agreements,written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification,contractual or otherwise, even though the person or entity did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. §A.11.4.8 A loss insured under Owner's or Design Builder's property insurance shall be adjusted by the Owner or Design Builder as fiduciary and made payable to the Owner as fiduciary for the insureds,as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section A.11.4.10. The Design-Builder shall pay Contractors their just shares of insurance proceeds received by the Design-Builder,and,by appropriate agreements,written where legally required for validity, shall require Contractors to make payments to their Subcontractors in similar manner. §A.11.4.9 If'required in writing by a party in interest,the Owner as fiduciary shall,upon occurrence of an insured loss, give bond for proper performance of the Owner's duties. The cost of required bonds shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received,which the Owner shall distribute in accordance with such agreement as the parties in interest may reach. If after such loss no other special agreement is made and unless the Owner terminates the Design Build Contract for convenience, replacement of damaged property shall be performed by the Design Builder after notification of a Change in the Work in accordance with Article A.7. §A.11.4.91ntentionally Deleted. §A.11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power.; The Owner as fiduciary shall,in the case of a decision or award,make settlement with insurers in accordance with directions of a decision or award.If distribution of insurance proceeds by arbitration is required,the arbitrators will direct such distribution. PAGE 27 §A.11.5.1 The Owner shall have the right to require the Design-Builder to furnish bonds covering faithful performance of the Design-Build Contract and payment of obligations arising thereunder,including payment to design professionals engaged by or on behalf of the Design Builder,as stipulated in bidding requirements or Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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° 7 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) specifically required in the Agreement or elsewhere in the Design Build Documents on the date of execution of the Design Build Contract.thereunder prior tocommencement of any Work. §A.12.1.1 If a portion of the Work is covered contrary to requirements specifically expressed in the Design-Build Documents,it must be uncovered for the Owner's examination and be replaced at the Design-Builder's expense without change in the Contract Time.Time or Contract Sum. PAGE 28 §A.I13.5.1 Tests,inspections and approvals of portions of the Work required by the Design-Build Documents or by laws, ordinances,rules,regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided,the Design Builder Owner shall make arrangements for such tests,inspections and approvals with an independent testing laboratory or entity acceptable to the Owner or with the appropriate public authority, and shall bear all related costs of tests,inspections and approvals. The Design Builder Owner shall give timely notice of when and where tests and inspections are to be made so that the Owner Design-Builder may be present for such procedures. §A.13.5.2 If the Owner or public authorities having jurisdiction determine that portions of the Work require additional testing,inspection or approval not included under Section A.13.5.1,the Owner shall in writing instruct the Design Builder to make arrangements for such additional testing,inspection or approval by an entity acceptable to the Owner,and the Design Builder shall give timely notice to the Owner of when and where tests and inspections are to be made so that the Owner may be present for such procedures. Such costs, except as provided in Section A.13.5.3, shall be at the Owner's expense.Intentionally Deleted. §A.13.5.3 If'such procedures for testing,inspection or approval under Sections A.13.5.1 and A.13.5.2 Section A.13.5.1 reveal failure of the portions of the Work to comply with requirements established by the Design-Build Documents,all costs made necessary by such failure,including those of repeated procedures, shall be at the Design- Builder's expense. §A.13.5.4 Required certificates of testing,inspection or approval shall,unless otherwise required by the Design- Build Documents,be secured by the Design Builder and promptly delivered to the Owner. §A.13.5.5 If the Owner is to observe tests, inspections or approvals required by the Design Build Documents,the Owner will do so promptly and,where practicable,at the normal place of testing.Intentionally Deleted. PAGE 29 §A.14.1.1 The Design-Builder may terminate the Design-Build Contract if the Work is stopped for a period of 30 60 consecutive,days through no act or fault of the Design-Builder or a Contractor, Subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder,for any of the following reasons: .2 an act of government, such as a declaration of national emergency which requires all Work to be stopped; or .3 the Owner has failed to make payment to the Design-Builder in accordance with the Design-Build Documents; orDocuments. .4 the Owner has failed to furnish to the Design Builder promptly,upon the Design Builder's request, reasonable evidence as required by Section A.2.2.8. PAGE 30 §A.14.1.3 If one of the reasons described in Sections A.14.1.1 or A.14.1.2 exists,the Design-Builder may,upon seven days' written notice to the Owner,terminate the Design-Build Contract and recover from the Owner payment Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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° 8 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) for Work executed and for proven loss with respect to materials,equipment,tools, and construction equipment and machinery,including reasonable overhead,profit and damages-damages allocable to the portion of Work actually executed. PAGE 31 §A.14.4.3 In the event of termination for the Owner's convenience prior to commencement of construction,the Design-Builder shall be entitled to receive payment for design services performed,costs incurred by reason of such termination and reasonable overhead and profit on design services not completed.performed. In case of termination for the Owner's convenience after commencement of construction,the Design-Builder shall be entitled to receive payment for Work executed and costs incurred by reason of such termination,along with reasonable overhead and profit on the Work not executed.actually executed. §A.15 EQUAL OPPORTUNITY §A.15.1 The Design/Builder shall maintain policies of employment as follows: §A.15.1.1 The Design/Builder and Design/Builder's Sub-Contractors shall not discriminate against any employee or applicant for employment because of race,religion, color, sex or national origin. The Design/Builder shall take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race,religion,color, sex or national origin. Such actions shall include,but not be limited to,the following: employment,upgrading,demotion or transfer;recruitment or recruitment advertising,layoff or termination;rates of pay or other forms of compensation;and selection for training,including apprenticeship. The Design/Builder agrees to post in conspicuous places,available to employees and applicants for employment,notices setting forth the policies of nondiscrimination. §A.15.1.2 The Design/Builder and the Design/Builder's Sub-Contractors shall,in all solicitations or advertisements for employees placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race,religion, color, sex or national origin. §A.16 -WORKING RESTRICTIONS §A.16.1 THE ENTIRE BUILDING IS ALCOHOL-FREE AT ALL TIMES AND APPLIES TO ALL OCCUPANTS. Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit A.Copyright©2004 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° 9 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 15:49:50 on 10/05/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1331116133) eltij Document A141 TM - 2004 Exhibit B Determination of the Cost of the Work for the following PROJECT: (Name and location or address) ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction ADDITIONS AND DELETIONS: City of Wylie The author of this document has 949 Hensley Lane added information needed for its Wylie TX 75098 completion.The author may also have revised the text of the original AIA standard form.An Additions and THE OWNER: Deletions Report that notes added (Name, legal status and address) information as well as revisions to the standard form text is available City of Wylie from the author and should be 300 Country Club reviewed.A vertical line in the left Wylie, TX 75098 ` margin of this document indicates where the author has added THE DESIGN-BUILDER: necessary information and where (Name, legal status and address) the author has added to or deleted from the original AIA text. Pulliam Construction Management,Inc. This document has important legal P. O.Box 1132 Wylie, TX 75098 consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. AIA Document A141 TM-2004 Exhibit B.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is Init. protected by U.S.Copyright Law 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 14:24:09 on 09/22/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1513116208) ARTICLE B.1 CONTROL ESTIMATE §B.1.1 Where the Contract Sum is the Cost of the Work,plus the Design-Builder's Fee without a Guaranteed Maximum Price pursuant to Section 4.3 of the Agreement,the Design-Builder shall prepare and submit to the Owner prior to the Design-Builder's first Application for Payment,in writing,a Control Estimate. The Control Estimate shall include the estimated Cost of the Work plus the Design-Builder's Fee. The Control Estimate shall be used to monitor actual costs. §B.1.2 The Control Estimate shall include: .1 the documents enumerated in Article 8 of the Agreement,including all Addenda thereto and the Terms and Conditions of the Contract; .2 a statement of the estimated Cost of the Work showing separately the compensation for design services,construction costs organized by trade categories or systems and the Design-Builder's Fee; and .3 contingencies for further development of design and construction. §B.1.3 The Design-Builder shall meet with the Owner to review the Control Estimate. In the event that the Owner discovers any inconsistencies or inaccuracies in the information presented,it shall promptly notify the Design- Builder,who shall make appropriate adjustments to the Control Estimate. When the Control Estimate is acceptable to the Owner,the Owner shall acknowledge its acceptance in writing. The Owner's acceptance of the Control Estimate does not imply that the Control Estimate constitutes a Guaranteed Maximum Price. §B.1.4 The Design-Builder shall develop and implement a detailed system of cost control that will provide the Owner with timely information as to the anticipated total Cost of the Work. The cost control system shall compare the Control Estimate with the actual cost for activities in progress and estimates for uncompleted tasks and proposed changes. This information shall be reported to the Owner,in writing,no later than the Design-Builder's first Application for Payment and shall be revised monthly or at other intervals as mutually agreed. ARTICLE B.2 COSTS TO BE REIMBURSED §B.2.1 COST OF THE WORK The term Cost of the Work shall mean costs necessarily incurred by the Design-Builder in the 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 this Article B.2. §B.2.2 LABOR COSTS §B.2.2.1 Wages of construction workers directly employed by the Design-Builder to perform the construction of the Work at the site or,with the Owner's prior approval,at off-site locations. §B.2.2.2 Wages or salaries of the Design-Builder's supervisory and administrative personnel when stationed at the site with the Owner's prior approval. §B.2.2.3 Wages and salaries of the Design-Builder'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 with the Owner's prior approval,but only for that portion of their time required for the Work. §B.2.2.4 Costs paid or incurred by the Design-Builder for taxes, insurance, contributions,assessments and benefits required by law or collective bargaining agreements and,for personnel not covered by such agreements, 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 B.2.2.1 through B.2.2.3. §B.2.3 CONTRACT COSTS §B.2.3.1 Payments made by the Design-Builder to Contractors in accordance with the requirements of their contracts. §B.2.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION §B.2.4.1 Costs,including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. AIA Document A141 TM-2004 Exhibit B.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 2 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 14:24:09 on 09/22/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1513116208) §B.2.4.2 Costs of materials described in the preceding Section B.2.4.1 in excess of those actually installed to allow for reasonable waste and spoilage.Unused excess materials,if any, shall become the Owner's property at the completion of the Work or,at the Owner's option, shall be sold by the Design-Builder. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. §B.2.5 COSTS OF OTHER MATERIALS AND EQUIPMENT,TEMPORARY FACILITIES AND RELATED ITEMS §B.2.5.1 Costs,including transportation and 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 Design-Builder at the site and fully consumed in the performance of the Work;and cost(less salvage value)of such items if not fully consumed,whether sold to others or retained by the Design-Builder. The basis for the cost of items previously used by the Design-Builder shall mean the fair market value. §B.2.5.2 Rental charges for temporary facilities,machinery,equipment,and hand tools not customarily owned by construction workers that are provided by the Design-Builder at the site,whether rented from the Design-Builder or others,and costs of transportation,installation,minor repairs and replacements,dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the Owner's prior approval. §B.2.5.3 Costs of removal of debris from the site. §B.2.5.4 Cost 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. §B.2.5.5 That portion of the reasonable expenses of the Design-Builder's personnel incurred while traveling outside of a 60 mile radius from the Project site in discharge of duties connected with the Work. §B.2.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location,if approved in advance by the Owner. §B.2.6 DESIGN AND OTHER CONSULTING SERVICES §B.2.6.1 Compensation,including fees and reimbursable expenses,paid by the Design-Builder for design and other consulting services required by the Design-Build Documents,although the same shall not be included in the computation of the Design-Builder's Fee pursuant to Section 4.4.2. §B.2.7 MISCELLANEOUS COSTS §B.2.7.1 That portion of insurance and bond premiums that can be directly attributed to this Design-Build Contract. §B.2.7.2 Sales,use or similar taxes imposed by a governmental authority that are related to the Work. §B.2.7.3 Fees and assessments for the building permit and for other permits,licenses and inspections for which the Design-Builder is required by the Design-Build Documents to pay. §B.2.7.4 Fees of laboratories for tests required by the Design-Build Documents,except those related to defective or non-conforming Work for which reimbursement is excluded by Section A.13.5.3 of Exhibit A,Terms and Conditions,or other provisions of the Design-Build Documents,and which do not fall within the scope of Section A.13.5.3. §B.2.7.5 Royalties and license fees paid for the use of a particular design,process or product required by the Design- Build Documents;the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Design-Build Documents,and payments made in accordance with legal judgments against the Design-Builder 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 Design-Builder's Fee or subject to the Guaranteed Maximum Price. If such royalties,fees and costs are excluded by the last sentence of Section A.3.16.1 of Exhibit A,Terms and Conditions,or other provisions of the Design-Build Documents,then they shall not be included in the Cost of the Work. AIA Document A141 TM-2004 Exhibit B.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 3 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 14:24:09 on 09/22/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1513116208) §B.2.7.6 Data processing costs related to the Work. §B.2.7.7 Deposits lost for causes other than the Design-Builder's negligence or failure to fulfill a specific responsibility to the Owner as set forth in the Design-Build Documents. §B.2.7.8 Legal,mediation and arbitration costs, including attorneys' fees, other than those arising from disputes between the Owner and Design-Builder,reasonably incurred by the Design-Builder in the performance of the Work and with the Owner's prior written approval,which approval shall not be unreasonably withheld. §B.2.7.9 Expenses incurred in accordance with the Design-Builder's standard personnel policy for relocation and temporary living allowances of personnel required for the Work,if approved in advance by the Owner. §B.2.8 OTHER COSTS AND EMERGENCIES §B.2.8.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. §B.2.8.2 Costs due to emergencies 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 A.10.6 of Exhibit A,Terms and Conditions. §B.2.8.3 Cost of repairing or correcting damaged or non-conforming Work executed by the Design-Builder, Contractors,;Subcontractors or suppliers,provided that such damaged or non-conforming Work was not caused by negligence or failure to fulfill a specific responsibility of the Design-Builder and only to the extent that the cost of repair or correction is not recoverable by the Design-Builder from insurance, sureties, Contractors, Subcontractors or suppliers. ARTICLE B.3 COSTS NOT TO BE REIMBURSED §B.3.1 The Cost of the Work shall not include: §B.3.1.1 Salaries and other compensation of the Design-Builder's personnel stationed at the Design-Builder's principal office or offices other than the site office, except as specifically provided in Sections B.2.2.2 and B.2.2.3. §B.3.1.2 Expenses of the Design-Builder's principal office and offices other than the site office. §B.3.1.3 Overhead and general expenses, except as may be expressly included in Article B.2 of this Exhibit. §B.3.1.4 The Design-Builder's capital expenses,including interest on the Design-Builder's capital employed for the Work. §B.3.1.5 Rental costs of machinery and equipment, except as specifically provided in Section B.2.5.2. §B.3.1.6 Except as provided in Section B.2.8.3 of this Agreement,costs due to the negligence or failure of the Design-Builder to fulfill a specific responsibility of the Design-Builder, Contractors, Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. §B.3.1.7 Any cost not specifically and expressly described in Article B.2, Costs to be Reimbursed. §B.3.1.8 Costs, other than costs included in Change Orders approved by the Owner,that would cause the Guaranteed Maximum Price,if any,to be exceeded. ARTICLE BA DISCOUNTS, REBATES AND REFUNDS §BA.1 Cash discounts obtained on payments made by the Design-Builder shall accrue to the Owner. Trade discounts,rebates,refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner,and the Design-Builder shall make provisions so that they can be secured. §B.4.2 Amounts that accrue to the Owner in accordance with the provisions of Section B.4.1 shall be credited to the Owner as a deduction from the Cost of Work. AIA Document A141 TM-2004 Exhibit B.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 4 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 14:24:09 on 09/22/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1513116208) ARTICLE B.5 CONTRACTS AND OTHER AGREEMENTS OTHER THAN FOR DESIGN PROFESSIONALS HIRED BY THE DESIGN-BUILDER §B.5.1 Those portions of the Work that the Design-Builder does not customarily perform with the Design-Builder's own personnel shall be performed by others under contracts or by other appropriate agreements with the Design- Builder.The Owner may designate specific persons or entities from whom the Design-Builder shall obtain bids. The Design-Builder shall obtain bids from Contractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Owner.The Owner shall then determine which bids will be accepted. The Design-Builder shall not be required to contract with anyone to whom the Design-Builder has reasonable objection. §B.5.2 Contracts or other agreements shall conform to the applicable payment provisions of this Design-Build Contract,and shall not be awarded on the basis of cost plus a fee without the Owner's prior consent. ARTICLE B.6 ACCOUNTING RECORDS §B.6.1 The Design-Builder or any affiliated person or entity which performs a portion of the Work shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Agreement,and the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants shall be afforded access to, and shall be permitted to audit and copy,the Design-Builder's records, books, correspondence,instructions,receipts,contracts,purchase orders,vouchers,memoranda and other data relating to this Agreement,and the Design-Builder shall preserve these for a period of three years after final payment,or for such longer period as may be required by law. §B.6.2 When the Design-Builder believes that all the Work required by the Agreement has been fully performed,the Design-Builder shall deliver to the Owner a final accounting of the Cost of the Work. §B.6.3 The Owner will review the Design-Builder's final accounting within 21 days after delivery of the final accounting.Based upon such Cost of the Work as is substantiated by the Design-Builder's final accounting,and provided the other conditions of Section A.9.10 of the Agreement have been met,the Owner will notify the Design- Builder in writing of the Owner's intention to make final payment or to withhold final payment. §B.6.4 If the Owner determines the Cost of the Work as substantiated by the Design-Builder's final accounting to be less than claimed by the Design-Builder,the Design-Builder shall be entitled to initiate resolution of the dispute pursuant to Article 6 of the Agreement and Article A.4 of Exhibit A,Terms and Conditions,for the disputed amount. If the Design-Builder fails to so initiate resolution of the dispute within the period of time required by Section A.4.1.2 of Exhibit A,Terms and Conditions,the substantiated amount determined by the Owner shall become binding on the Design-Builder.Pending a final resolution pursuant to Article 6 of the Agreement and Article AA of Exhibit A,Terms and Conditions,the Owner shall pay the Design-Builder the amount,if any, determined by the Owner to be due;.the Design-Builder. §B.6.5 If, subsequent to final payment and at the Owner's request,the Design-Builder incurs costs in connection with the correction of defective or non-conforming work as described in Article B.2, Costs to be Reimbursed,and not excluded by Article B.3,Costs Not to be Reimbursed,the Owner shall reimburse the Design-Builder such costs and the Design-Builder'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 any. If the Design-Builder has participated in savings as provided in Section 4.4.3.1 of the Agreement,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 Design-Builder. AIA Document A141 TM-2004 Exhibit B.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 5 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 14:24:09 on 09/22/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1513116208) Additions and Deletions Report for AIA®Document A 141 TM— 2004 Exhibit B 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 14:24:09 on 09/22/2011. PAGE 1 ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction City of Wylie 949 Hensley Lane Wylie, TX 75098 Citv>of Wylie 300 Country Club Wylie, TX 75098 Pulliam Construction Management,Inc. P. 0 Box 1132 Wylie, TX 75098 PAGE 2 §B.2.2.1 Wages of construction workers directly employed by the Design-Builder to perform the construction of the Work at the site or,with the Owner's prior approval,at off-site locations. §B.2.2.2 Wages or salaries of the Design-Builder's supervisory and administrative personnel when stationed at the site with the Owner's prior approval. §B.2.2.3 Wages and salaries of the Design-Builder'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, Work with the Owner's prior approval,but only for that portion of their time required for the Work. PAGE 3 §B.2.5.5 That portion of the reasonable expenses of the Design-Builder's personnel incurred while traveling outside of a 60 mile radius from the Project site in discharge of duties connected with the Work. §B.2.6.1 Compensation,including fees and reimbursable expenses,paid by the Design-Builder for design and other consulting services required by the Design-Build Documents.Documents,although the same shall not be included in the computation of the Design-Builder's Fee pursuant to Section 4.4.2. Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit B.Copyright©2004 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® 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 14:24:09 on 09/22/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1513116208) §B.2.7.5 Royalties and license fees paid for the use of a particular design,process or product required by the Design- Build Documents;the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Design-Build Documents;Documents,and payments made in accordance with legal judgments against the Design-Builder 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 Design-Builder's Fee or subject to the Guaranteed Maximum Price. If such royalties,fees and costs are excluded by the last sentence of Section A.3.16.1 of Exhibit A,Terms and Conditions,or other provisions of the Design-Build Documents,then they shall not be included in the Cost of the Work. PAGE 4 §B.2.7.9 Expenses incurred in accordance with the Design-Builder's standard personnel policy for relocation and temporary living allowances of personnel required for the Work,if approved in advance by the Owner. §B.4.1 Cash discounts obtained on payments made by the Design-Builder shall accrue to the Owner if(1)before making the payment,the Design Builder included them in an Application for Payment and received payment from the Owner,or(2)the Owner has deposited funds with the Design Builder with which to make payments; otherwise, cash;.discounts shall accrue to the Design Builder. Owner. Trade discounts,rebates,refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner,and the Design-Builder shall make provisions so that they can be secured. PAGE 5 §B.6.2 When the Design-Builder believes that all the Work required by the Agreement has been fully performed,the Design-Builder shall deliver to the Owner's accountant Owner a final accounting of the Cost of the Work. §B.6.3 The Owner's accountants will review and report in writing on Owner will review the Design-Builder's final accounting within 21 days after delivery of the final accounting.Based upon such Cost of the Work as the Owner's accountants report to be is substantiated by the Design-Builder's final accounting,and provided the other conditions of Section'A.9.10 of the Agreement have been met,the Owner will,within seven days after receipt of the written report of the Owner's accountants,will notify the Design-Builder in writing of the Owner's intention to make final payment or to withhold final payment. §B.6.4 If the Owner's accountants report Owner determines the Cost of the Work as substantiated by the Design- Builder's final accounting to be less than claimed by the Design-Builder,the Design-Builder shall be entitled to initiate resolution of the dispute pursuant to Article 6 of the Agreement and Article A.4 of Exhibit A,Terms and Conditions,for the disputed amount. If the Design-Builder fails to so initiate resolution of the dispute within the period of time required by Section A.4.1.2 of Exhibit A,Terms and Conditions,the substantiated amount reported determined by the Owner's accountants Owner shall become binding on the Design-Builder.Pending a final resolution pursuant to Article 6 of the Agreement and Article A.4 of Exhibit A,Terms and Conditions,the Owner shall pay the Design-Builder the amount,if any, determined by the Owner's accountant Owner to be due the Design- Builder. Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit B.Copyright©2004 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° 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 14:24:09 on 09/22/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (1513116208) etij Document A141 TM - 2004 Exhibit C insurance and Bonds for the following PROJECT: (Name and location or address) ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction ADDITIONS AND DELETIONS: City of Wylie The author of this document has 949 Hensley Lane added information needed for its Wylie TX 75098 completion.The author may also have revised the text of the original AIA standard form.An Additions and THE OWNER: Deletions Report that notes added (Name, legal status and address) information as well as revisions to the standard form text is available City of Wylie from the author and should be 300 Country Club reviewed.A vertical line in the left Wylie, TX 75098 ` margin of this document indicates where the author has added THE DESIGN-BUILDER: necessary information and where (Name, legal status and address) the author has added to or deleted from the original AIA text. Pulliam Construction Management,Inc. This document has important legal P. O.Box 1132 Wylie, TX 75098 consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. AIA Document A141 TM-2004 Exhibit C.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA® Document is Init. protected by U.S.Copyright Law 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 16:59:58 on 09/21/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (829568875) ARTICLE C.1 The Owner and Design-Builder shall provide policies of liability insurance as required by the Design-Build Documents, or as follows: (Specify changes, if any, to the requirements of the Design-Build Documents, and for each type of insurance identify applicable limits and deductible amounts.) GENERAL LIABILITY $2,000,000.00 General Aggregate $2,000,000.00 Products and Completed Operations Aggregate $ 1,000,000.00 Per Occurrence Limit $1,000,000.00 Personal and Advertising Injury AUTOMOBILE $ 1,000,000.00 Combined single limit Auto Liability(Including Hired and Non-Owned Liability) WORKER'S COMPENSATION $ 500,000.00 Employer's Liability(Per Accident)or Statutory $500,000.00 Employer's Liaility(Per Employee)or Statutory $ 500,000.00 Employer's Liability(Per Policy) EXCESS LIABILITY UMBRELLA $2,000,000.00 Excess Liability Umbrella PROFESSIONAL LIABILITY INSURANCE(ERRORS AND OMISSIONS) $ 1,000,000.00 Per claim and annual aggregate Where applicable,the above policies are to include at least the minimum coverage's: (1) Premises/Operations Liability (2) Completed Operations and Product Liability (3) Blanket Contractual Endorsement (4) Broad Form Property Damage Liability (5), Broadening Endorsement, I.S.O.Form or equivalent (6) Coverage for"X", "C"and"U"Hazards as it pertains to General Liability(Underground,Explosion, Collapse) (7) Waiver of Subrogation Endorsement (8) Identification by certificate of Residential,Mold,EIFS, Silica or other major exclusions that impact your ability to insure your risk. The policies shall be written on an occurrence basis,except Professional Liability Insurance which shall be a claims made policy with a retroactive date before commencement of any professional design services by Design- Builder. Design-Builder shall maintain such insurance for a period of not less than three(3)years after final completion of the Work and shall provide evidence to the Owner of renewal on an annual basis. ARTICLE C.2 The Design-Builder shall provide payment and performance bonds in the penal sum equal to the Project budget specified in Owner's design criteria package,due no later than the 10th day following execution of the Design-Build Contract,excusive of amounts allocated for design services,until a Guaranteed Maximum Price is established,at which time the penal sum of the payment and performance bonds shall be equal to the Guaranteed Maximum Price: (Specify type and penal sum of bonds.) Type Penal Sum AIA Document A141 TM-2004 Exhibit C.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA° Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it, 2 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 16:59:58 on 09/21/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (829568875) §C.2.1 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Agreement,the Design-Builder shall promptly furnish a copy of the bonds or shall permit a copy to be made. AIA Document A141 TM-2004 Exhibit C.Copyright©2004 by The American Institute of Architects.All rights reserved.WARNING:This AIA Document is Init. protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA Document,or any portion of it, 3 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 16:59:58 on 09/21/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (829568875) Additions and Deletions Report for AIA®Document A 141 TM— 2004 Exhibit C 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 16:59:58 on 09/21/2011. PAGE 1 ARBJ File: City of Wylie 940272 0232 Design-Build with Pulliam Construction City of Wylie 949 Hensley Lane Wylie, TX 75098 City of Wylie 300 Country Club Wylie, TX 75098 Pulliam Construction Management,Inc. P. 0 Box 1132 Wylie, TX 75098 PAGE 2 GENERAL LIABILITY $2,000,000.00 General Aggregate $2,000,000.00 Products and Completed Operations Aggregate $ 1,000,000.00 Per Occurrence Limit $1,000,000.00 Personal and Advertising Injury AUTOMOBILE $>1,000,000.00 Combined single limit Auto Liability(Including Hired and Non-Owned Liability) WORKER'S COMPENSATION $ 500,000.00 Employer's Liability(Per Accident)or Statutory $ 500,000.00' Employer's Liaility(Per Employee)or Statutory $ 500,000.00' Employer's Liability(Per Policy) EXCESS LIABILITY UMBRELLA $2,000,000.00 Excess Liability Umbrella PROFESSIONAL LIABILITY INSURANCE(ERRORS AND OMISSIONS) $ 1,000,000.00 Per claim and annual aggregate Where applicable,the above policies are to include at least the minimum coverage's: (1) Premises/Operations Liability (2) Completed Operations and Product Liability Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit C.Copyright©2004 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® 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 16:59:58 on 09/21/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (829568875) (3) Blanket Contractual Endorsement (4) Broad Form Property Damage Liability (5) Broadening Endorsement, I.S.O. Form or equivalent (6) Coverage for"X", "C"and"U"Hazards as it pertains to General Liability(Underground,Explosion, Collapse) (7) Waiver of Subrogation Endorsement (8) Identification by certificate of Residential,Mold,EIFS, Silica or other major exclusions that impact your ability to insure your risk. The policies shall be written on an occurrence basis,except Professional Liability Insurance which shall be a claims made policy with a retroactive date before commencement of any professional design services by Design- Builder. Design-Builder shall maintain such insurance for a period of not less than three(3)years after final completion of the Work and shall provide evidence to the Owner of renewal on an annual basis. The Design-Builder shall provide urcty bonds as follows:payment and performance bonds in the penal sum equal to the Project budget specified in Owner's design criteria package, due no later than the 10th day following execution of the Design-Build Contract,excusive of amounts allocated for design services,until a Guaranteed Maximum Price is established,at which time the penal sum of the payment and performance bonds shall be equal to the Guaranteed Maximum Price: Type Penal Sum{$0.00) Additions and Deletions Report for AIA Document A141 TM-2004 Exhibit C.Copyright©2004 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 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 16:59:58 on 09/21/2011 under Order No.7045488178_1 which expires on 06/11/2012,and is not for resale. User Notes: (829568875) Wylie City Council CITY OF WYLIE AGENDA REPORT q Meeting Date: October 11, 2011 Item Number: E. Division: Parks and Recreation (City Secretary's Use Only) Prepared By: Robert Diaz Account Code: Date Prepared: September 30, 2011 Budgeted Amount: Exhibits: 1 Subject Consider, and act upon, approving the vendor application from the American Cancer Society Relay for Life to hold a Rally and Holiday Bazaar as a fundraiser for cancer survivors at the Bart Peddicord Community Center on November 19,2011. Recommendation Motion to approve the vendor application from the American Cancer Society Relay for Life to hold a Rally and Holiday Bazaar as a fundraiser for cancer survivors at the Bart Peddicord Community Center on November 19, 2011. Discussion The American Cancer Society Relay for Life group would like to hold a Rally and Holiday Bazaar as a fundraiser for cancer survivors at the Bart Peddicord Community Center on November 19, 2011. The funds raised will benefit their charitable organization. The Parks and Recreation Board at their regular meeting on September 26, 2011, approved the American Cancer Society Relay for Life group's request to have the Rally and Holiday Bazaar at the Bart Peddicord Community Center. Approved By Initial Date Department Director RD 9-30-11 City Manager I II I 10/7/11 Page 1 of 1 1'< 1 1: < 1 RECREATION CIT_t+V.11Y OF WYLIE 300 Country Club, Building 100,Wylie,TX 75098 w 972.516.6340 VENDOR REGISTRATION-Once approved Jy City C uncilve dorhas7da, s to finalizeevent with Parks& Recreation acilit strr Recommended timeline ,orsubmission to Park Board `-4 months in advance o event Group,Organization,Individual,etc. Name Phone Number American Cancer Society-Relay for Life 972.313.5548 Audra Cozart Address Alternate Phone Number 8900 Carpenter Freeway 214.819.1202 City/State/Zip E-mail Dallas,TX 75247 Audra.cozart@cancerorg Contact Person Name Phone Number Sharon Brannick 972.838.0880-Sharon Address Alternate Phone Number 1722 Harvest Crossing Drive 972.838.0916 City/State/Zip E-mail Wylie TX 75098 Rfl.wsm.eventchair@gmail.com Emergency Contact Name Phone Number Martha Wolf 214.287.6865 Address Alternate Phone Number City/State/Zip E-mail Wylie TX rfl_wsm_webchair@yahoo.com Event Information Event Name Relay Rally and Holiday Bazaar Type of Event Purpose of Event Registration for Relay and Team Fundraisers Registration and Donations Location Proposed Event Date(s) Bart Peddicord Community Center Saturday, November 19,2011 Number of Individuals Vending Items Start Time End Time 10-15 9:00 am 3:00 pm Anticipated Number in Attendance Event Target Audience 150 Citizens of Wylie Specific Items to be Sold Portraits with Santa Scentsy No food will be sold Premiere Jewlry Mary Kay Crochet Hats Various other items NOTE: If food is prepared on-site or off-site and brought to the location to be sold,the vendor must contact the City Inspections Office(972.516.6420)in order to obtain a Health Permit prior to the sale of such products.An Inspector must examine the food preparation and food storage equipment to assure the health and safety of customers. Section 78-105 of the City Code of Ordinances states:It shall be unlawful for any person to solicit for sale,vend,peddle,sell or offer to sell any cold drinks,cigars,tobaccos,cigarettes,fruits, candies,goods,wares or merchandise of any kind or nature whatsoever within the city park or recreation or community center facility;provided,however,that this section shall not apply to any person,organizations,firms or corporations,or the agents of any person,or organization,firm or corporation,or employees of any person who are recommended by the parks and recreation board and approved by the city council to operate a concession or concessions for the sale of specified goods,or wares and merchandise within the city park or recreation or community center facilities of the city. Rev.7.22.11 Wylie City Council CITY OF WYLIE AGENDA REPORT q Meeting Date: October 11, 2011 Item Number: F. Division: Parks and Recreation (City Secretary's Use Only) Prepared By: Robert Diaz Account Code: Date Prepared: September 30, 2011 Budgeted Amount: Exhibits: 1 Subject Consider, and act upon, approving the vendor application from Boy Scout Troop 2062 to hold a dinner and an auction as a fundraiser for their Scout Eagle project at the Bart Peddicord Community Center on November 5, 2011. Recommendation Motion to approve the vendor application from Boy Scout Troop 2062 to hold a dinner and an auction as a fundraiser for their Scout Eagle project at the Bart Peddicord Community Center on November 5,2011. Discussion Boy Scout Alex Baker with Troop 2062 is organizing a dinner and auction as a fundraiser to help raise funds to purchase supplies for troops overseas. The Parks and Recreation Board at their regular meeting on September 26, 2011, unanimously approved Boy Scout Troop 2062 request to have fundraising dinner and auction at the Bart Peddicord Community Center. Approved By Initial Date Department Director RD 9-30-11 City Manager 1017111 Page 1 of 1 < 1) RECRLXu1() CITY OF WYLIE 300 Country Club, Building 100,Wylie,TX 75098 w 972.516.6340 VENDOR REGISTRATION-Once approved by City CCunc l vendor has 7 days to finalize event with Parks& Recreation acilit strr Recommended timeline ,orsubmission to Park Board `-4 months in advance o event Group,Organization,Individual,etc. Name Phone Number Alex Baker—Boy Scout Troop 2062 469-964-8513 Address Alternate Phone Number 1310 Cedar Branch Drive 972-442-0470 City/State/Zip E-mail Wylie,TX 75098 Jason.baker@parsons.com Contact Person Name Phone Number Jason Baker 469-964-8513 Address Alternate Phone Number 1310 Cedar Branch Drive 972-244-6173 City/State/Zip E-mail Wylie,TX 75098 Jason.baker@parsons.com Emergency Contact Name Phone Number Martha Baker 214-475-0512 Address Alternate Phone Number 1310 Cedar Branch Drive 972-442-0470 City/State/Zip E-mail Wylie,TX 75098 marthaabaker@gmail.com Event Information Event Name Alex Baker-Eagle Scout Project—Dinner and Auction/Fund Raiser Type of Event Purpose of Event Dinner and Auction/Fund Raiser Eagle Scout Project Location Proposed Event Date(s) Bart Peddicord Community Center Nov 5th,2011 Number of Individuals Vending Items Start Time End Time 1—Alex will coordinate an Auction to raise funds for his project 3PM 10PM Anticipated Number in Attendance Event Target Audience 100 people Community members, mostly from Scout Troop and Church Specific Items to be Sold Members in attendance will be provided with a free Spaghetti dinner prepared by volunteers from Alex's Scout Troop and Church. Guests will bring small items like baked goods and crafts,which will be auctioned back to the members in attendance to raise money for the Eagle Project. The guests can also directly donate the items needed for the project or donate cash. About the Eagle Project: Alex is working directly with a Lieutenant Colonel in the Marines who is stationed in Afghanistan. The funds gathered from the auction will be carefully recorded. All proceeds will go towards purchasing and shipping requested supplies to the troops in Afghanistan. Most of the supplies will be used for teaching literacy programs. Supplies to be sent to Afghanistan troops will include: sharpies, markers,folders, pens, lamination sheets,etc. Other items to be sent:travel sized body soaps,canned air(for cleaning weapons and electronics), iTunes gift cards(popular with the local kids), Polaroid cameras(they take pictures for the locals, in return the locals give them information about enemy movements) Rev.4.11.11 NOTE: The City of Wylie has an exclusive contract that allows the sale of only Pepsi products within all park,recreation,community center facilities and other facilities.If food is prepared on-site or off-site and brought to the location to be sold,the vendor must contact the City Inspections Office(972.516.6420)in order to obtain a Health Permit prior to the sale of such products.An Inspector must examine the food preparation and food storage equipment to assure the health and safety of customers. Section 78-105 of the City Code of Ordinances states:It shall be unlawful for any person to solicit for sale,vend,peddle,sell or offer to sell any cold drinks,cigars,tobaccos,cigarettes,fruits, candies,goods,wares or merchandise of any kind or nature whatsoever within the city park or recreation or community center facility;provided,however,that this section shall not apply to any person,organizations,firms or corporations,or the agents of any person,or organization,firm or corporation,or employees of any person who are recommended by the parks and recreation board and approved by the city council to operate a concession or concessions for the sale of specified goods,or wares and merchandise within the city park or recreation or community center facilities of the city. Rev.4.11.11 Wylie City Council CITY OF WYLIE AGENDA REPORT q Meeting Date: October 11, 2011 Item Number: G. Division: Parks and Recreation (City Secretary's Use Only) Prepared By: Robert Diaz Account Code: Date Prepared: September 30, 2011 Budgeted Amount: Exhibits: 1 Subject Consider and act upon approving the Vendor Application from Wylie East High School to hold a crafts booth fundraiser for WEHS Scholarship Foundation at Olde City Park on October 24, 2011. Recommendation Motion to recommend approval of the Vendor Application from Wylie East High School to hold a crafts booth fundraiser for WEHS Scholarship Foundation at Olde City Park on October 24, 2011. Discussion Wylie East High School would like to have craft booths in order to fundraise to benefit their scholarship fund following their homecoming parade at Olde City Park on October 24,2011. The Parks and Recreation Board at their Regular Meeting on September 26, 2011, unanimously approved the Wylie East High School's Vendor Application to hold a crafts booth fundraiser for WEHS Scholarship Foundation at Olde City Park on October 24, 2011. Approved By Initial Date Department Director RD 9-30-11 City Manager 1017111 Page 1 of 1 lIARK < 1 RECREATION CITY OF WYLIE 300 Country Club, Building 100,Wylie,TX 75098 w 972.516.6340 VENDOR REGISTRATION-Once approved by City CCunc l vendor has 7 days to finalize event with Parks& Recreation acilit strr Recommended timeline ,orsubmission to Park Board `-4 months in advance o event Group,Organization,Individual,etc. Name Phone Number Wylie East High School Scholarship Foundation 972.429.3150 Address Alternate Phone Number 3000 Wylie East Drive City/State/Zip E-mail Wylie TX 75098 Shannon.ainsworth@wyiieisd.net Contact Person Name Phone Number Shannon Ainsworth 972.429.3000 ext. 7237 Address Alternate Phone Number 3000 Wylie East Drive 972.948.7803 City/State/Zip E-mail Wylie TX 75098 Shannon.ainsworth@wyileisd.net Emergency Contact Name Phone Number Donna Edge 972.429.3173 Address Alternate Phone Number 3000 Wylie East Drive City/State/Zip E-mail Wylie TX 75098 Donna.edge@wyileisd.net Event Information Event Name Wylie East High School Homecoming/Scholarship Carnival Type of Event Purpose of Event Carnival Fundraiser(booths) Collect Donations/Fundraiser for WE Scholarship Foundation Location Proposed Event Date(s) Olde City Park October 24,2011 Number of Individuals Vending Items Start Time End Time Not certain, recruiting vendors 4:00 pm 8:00 pm Anticipated Number in Attendance Event Target Audience 400 Community Members Specific Items to be Sold I am working on getting someone to sell shaved ice or frozen yogurt,hot dogs, popcorn,drinks,etc.This is all in an effort to raise money for the Scholarship Foundation at Wylie East High School;very similar to the Wylie is Hope Country Fair. NOTE: If food is prepared on-site or off-site and brought to the location to be sold,the vendor must contact the City Inspections Office(972.516.6420)in order to obtain a Health Permit prior to the sale of such products.An Inspector must examine the food preparation and food storage equipment to assure the health and safety of customers. Section 78-105 of the City Code of Ordinances states:It shall be unlawful for any person to solicit for sale,vend,peddle,sell or offer to sell any cold drinks,cigars,tobaccos,cigarettes,fruits, candies,goods,wares or merchandise of any kind or nature whatsoever within the city park or recreation or community center facility;provided,however,that this section shall not apply to any person,organizations,firms or corporations,or the agents of any person,or organization,firm or corporation,or employees of any person who are recommended by the parks and recreation board and approved by the city council to operate a concession or concessions for the sale of specified goods,or wares and merchandise within the city park or recreation or community center facilities of the city. Rev.7.22.11 Wylie City Council CITY of WYLIE AGENDA REPORT Meeting Date: October 11, 2011 Item Number: H. Department: City Secretary (City Secretary's Use Only) Prepared By: Carole Ehrlich Account Code: Date Prepared: October 3, 2011 Budgeted Amount: Exhibits: Ordinance & Calendar Subject Consider, and act upon, Ordinance No. 2011-23 setting the time and place for all regular City Council Meetings in the 2012 calendar year. Recommendation A motion to approve Ordinance No. 2011-23 setting the time for 6:00 p.m. and place for all regular City Council Meetings in the 2012 calendar year. Discussion The City of Wylie Home Rule Charter in Article III, Section 9 states that the City Council shall hold at least one regular meeting each month and as many additional meetings as it deems necessary to transact the business of the City. The City Council shall fix, by ordinance, the date and time of the regular meetings. Special meetings of the City Council shall be held on the call of the mayor or a majority of the City Council members. By this Ordinance, the dates and times of all regular meetings in 2012 will be set. During the months of November and December one meeting per month has been scheduled due to the holidays. Upon request of the Council, special called meetings and work sessions can be scheduled at any times designated by the City Council and posted in accordance with the Texas Open Meetings Act. Approved By Initial Date Department Director CE 10-3-11 City Manager 1017111 Page 1 of 1 ORDINANCE NO. 2011-23 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, HEREBY SETTING THE REGULAR CITY COUNCIL MEETING DATES FOR CALENDAR YEAR 2011 FOR THE CITY OF WYLIE, TEXAS; PROVIDING FOR SAVINGS, REPEALING AND SEVERANCE CLAUSES; AND PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE. WHEREAS, the City Council normally meets on the 2nd and 4th Tuesday of each month; and WHEREAS, the City Charter requires the City Council to meet at least once each month; and WHEREAS, many citizens, City employees and elected officials take vacations or are unavailable during the holidays; and WHEREAS, the City Council finds it will be beneficial and in the best interests of the public to set forth its regular meeting dates for the calendar year 2012. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 2: The City Council of the City of Wylie, Texas, hereby determines that regular meetings will be held on the 2nd and 4th Tuesdays for the first ten months of 2012 (January through October) and on the 2nd Tuesday in November and December, 2012, which shall be on the following dates: January 10 and 24, 2012 July 10 and 24, 2012 February 14 and 28, 2012 August 14 and 28, 2012 March 13 and 27, 2012 September 11 and 25, 2012 April 10 and 24, 2012 October 9 and 23, 2012 May 8 and 22, 2012 November 13, 2012 June 12 and 26, 2012 December 11, 2012 SECTION 3: Nothing herein shall prohibit the City Council from canceling or changing the regular meeting dates established herein or from holding special or other meetings as allowed by law. SECTION 4: The City Council's regular meetings shall generally begin at 6:00 p.m. and are usually held at 300 Country Club Road, Building #100, Wylie, Texas in the City Council meeting chambers in City Hall; however the exact time and location for each meeting shall be posted in accordance with the Texas Open Meetings Act. Ordinance No. 2011-23 Ordinance Establishing Meeting Dates Calendar Year 2012 Page 1 SECTION 5: Savings/Repealing Clause. All provisions of any ordinance in conflict with this ordinance are hereby repealed; but such repeal shall not abate any pending prosecution for violation of the repealed Ordinance, nor shall the repeal prevent prosecution from being commenced for any violation if occurring prior to the repeal of the Ordinance. Any remaining portions of conflicting ordinances shall remain in full force and effect. SECTION 6: Severability. Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Wylie hereby declares that it would have passed this Ordinance, and each section, subsection, sentence, clause, or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared unconstitutional or invalid. SECTION 7: Effective Date. This Ordinance shall become effective immediately upon its passage. DULY PASSED AND APPROVED by the City Council of the City of Wylie, Texas, on this the 11th day of October 2012. Eric Hogue, Mayor ATTEST TO: Carole Ehrlich, City Secretary Ordinance No. 2011-23 Ordinance Establishing Meeting Dates Calendar Year 2012 Page 2 2012 Wylie CityCouncil Yearly Calendar January February March ,, 1 11 w ILI . tio'''. .2''''''" 22 .„ 1 ' ,, 84011401411141111410g.., . , mm mmm mmmmmm 'mmmm ____mmm'mmmm mmmX �mmmmmmmm .��.��.��::�� __mmm_ _mmm m� mmmm_�m mmmm'"; �:��.� ��,�.�.�.��.;m mmmm _mmm ____mmmm 1 3 5 5 1 1 3 1 3 8 9 103 141 5 6 7 4 5 6 7 8 1 15 16 17 18 19 20 211 12 13El 15 16 17 181 11 12® 14 15 16 171 22 3 El 25 26 7 281 19 20 21 22 23 24 25113 19 20 21 22 23 241 29 30 31 1 26 27 28 29 25 26 27 28 29 30 311 1 April May June ISA mtitai AWN $511 K._m_T ._mW gam F _m 1 __. 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Department: Engineering (City Secretary's Use Only) Prepared By: Chris Hoisted Account Code: Date Prepared: 09/29/11 Budgeted Amount: Exhibits: 3 Subject Consider, and act upon, a request by Skorburg Company to construct an estate residential street section on portions of the Braddock Place property that serve lots with square footage equal to or larger than 16,000 square feet. Recommendation Motion to approve a request by Skorburg Company to construct an estate residential street section on portions of the Braddock Place property that serve lots with square footage equal to or larger than 16,000 square feet. Discussion The City of Wylie Design Standards and Construction Details include a design for an estate residential roadway section for lots of one acre or larger. Skorburg Company has requested to construct an estate residential street section on portions of the Braddock Place property that serve lots with square footage equal to or greater than 16,000 square feet. The roadway section includes 26 feet of concrete paving, a 2 foot shoulder, and a drainage easement adjacent to the street right of way. The home builder will also be required to field verify the elevation of the driveway culvert prior to C.O. to eliminate ponding in the City maintained drainage swales. Phase I of Braddock Place included the estate residential paving section; however, the lots were 18,000 square feet minimum. Approved By Initial Date Department Director CH 10/03/11 City Manager 10/7/11 Page 1 of 1 BRADDOCK PLACE HOLDINGS, LTD. By Braddock Place Holdings GP Corporation 8214 Westchester Drive, Suite 710 Dallas,Texas 75225 Phone: 214/522-4945 Fax: 214/522-7244 September 28, 2011 City of Wylie Attn: Mr. Chris Hoisted, City Engineer 2000 Hwy 78 Wylie, Texas 75098 Re: Braddock Place Estates open ditch drainage and"Estate Street" design modification request Dear Mr. Hoisted: As discussed in our meeting last Friday, please accept this letter requesting the City to allow open ditch drainage with an "Estate Street" design section as was constructed in Phase I of Braddock Place Estates for lots at least 16,000 SF or larger. In Phase II of Braddock Place Estates, we plan to continue with an extension of the "Estate Street" section of the subdivision. This second phase is planned to consist of forty-three (43) 90' x 180' typical size lots. A cross section of the street design is attached to this letter as Exhibit"A." The City has previously approved the use of the "Estate Street" section with open ditch drainage for lots equal to or greater than 18,000 SF in size. In consideration of the fact that these Phase II lots will be significantly larger than what is required in the zoning ordinance and given that the Phase II lots will only be 10' narrower than the Phase I lots, we respectfully request the City to allow the "Estate Street" section with open ditch drainage for lots 16,000 SF or larger for all of the property under Zoning Ordinance 2005-24. This Estate Street lot program has maintained its value for the homeowners and the City of Wylie through one of the most challenging housing markets in a generation. Thus, we look forward to continuing this concept in the next phase of Braddock Place Estates. Please let me know if you need any additional information. I can be reached on my cell at (817) 657-5548 if you have any questions or concerns. We appreciate your consideration. Sincerely, Braddock Place Holdings, Ltd. By: Braddock Place Holdings GP Corporation By: ,e-- (--c (._,/Z 1----6----;,-2.7.- Adam J. Bu ek, Director / 1 of 2 G:\company management\Project Mgmt\Projects\Braddock Place Estates-Phase II\02. City or Town\02e. City Communication\BP Estates-Estate Section Request-9-28-11.doc o a> C En a) U ct C.) 70 o 60'R.O.W. 73 15'DRAINAGE 30' 30' 15'DRAINAGE cd & UTIL.ESMT. & UTIL.ESMT. �' 5' 5' . 3' 6' 2' _ 26'E E 2' 6' 3' 5' H MIN MIN PROF.ELEV. MIN MIN-^ r 1' 1 � + rn 3 3 2% 2/. H CC; 1 1 - - -- 1 \Y4�� F. a s , p4-1 d 6" 3600 PSI CONC. �yW/•3 BARS AT 16" OCEW �i 7" LIME STABILIZED 00 _f� SUBGRADE, PROPOSED 8" O PROP.WATER COMPACTED TO 95% SANITARY SEWER -FRANCHISE W U W/ 4'COVER (TYP) STANDARD PROCTOR W/ 3.5'COVER (MIN) UTILITIES v, TYPICAL PAVEMENT SECTION N.T_S�. 0 • U N 0 0 I' I ;.,,,I 1 6 ci .. Pt, ! 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(City Secretary's Use Only) Department: Engineering Prepared By: Chris Hoisted Account Code: N/A Date Prepared: 10/5/11 Budgeted Amount: N/A Exhibits: Ordinance Subject Consider, and act upon, Ordinance No. 2011-24 amending Ordinance No. 2006-32 modifying the City of Wylie Drought Contingency Plan. Recommendation Motion to approve Ordinance No. 2011-24 amending Ordinance No. 2006-32 modifying the City of Wylie Drought Contingency Plan. Discussion The North Texas Municipal Water District has requested that member cities initiate Stage 3 of the Drought Contingency Plan effective November 1, 2011. The goal of Stage 3 is a 10% reduction in water use and increased awareness in ongoing water conservation efforts. NTMWD is concerned about the declining water levels of the reservoirs and the projections that the drought will persist or intensify through December 2011. In addition to the extreme temperatures and continuing drought conditions, NTMWD currently can't pump water from Lake Texoma due to the presence of invasive zebra mussels. Lake Texoma normally provides almost a quarter of NTMWD's raw water supply. The model plan prepared by NTMWD recommended that in Stage 3, watering be limited to one day per week, and once every two weeks from November 1st to March 31st. The current City of Wylie plan allows two days per week watering in Stage 3; however, the time of day that watering is allowed is greatly reduced, and the plan does not have the reduction to once every two weeks from November 1st to March 31st The proposed Ordinance would modify the current plan to match the NTMWD recommendations. Approved By Initial Date Department Director CH 10/05 City Manager 10/7/11 Page 1 of 1 ORDINANCE NO. 2011-24 AN ORDINANCE OF THE CITY OF WYLIE, TEXAS, REPEALING ORDINANCE NOS. 2002-18, 2006-32, 2006-41 AND 2007-17 AND REPEALING DIVISION 2 (DROUGHT CONTINGENCY PROGRAM) OF ARTICLE IV (WATER) OF CHAPTER 114 (UTILITIES) OF THE WYLIE CODE OF ORDINANCES AND ADOPTING THE NORTH TEXAS MUNICIPAL WATER DISTRICT MODEL DROUGHT CONTINGENCY PLAN AS DIVISION 2 (DROUGHT CONTINGENCY PLAN) OF ARTICLE IV (WATER) OF CHAPTER 114 (UTILITIES) TO THE WYLIE CODE OF ORDINANCES; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the City Council of the City of Wylie, Texas ("City Council") has previously adopted Ordinance No. 2002-18 of the City of Wylie ("Wylie") establishing a Drought Contingency Plan, which was subsequently amended by Ordinance Nos. 2006- 32, 2006-41 and 2007-17 ("Drought Contingency Plan"); and WHEREAS, the Drought Contingency Plan was codified as Division 2 (Drought Contingency Program) of Article IV (Water) of Chapter 114 (Utilities) in the Wylie Code of Ordinances; and WHEREAS, Wylie recognizes that the amount of water available to its customers is limited; and WHEREAS, Wylie has determined an urgent need and in the best interest of the public to repeal the existing Drought Contingency Plan and adopt the plan as set forth below; and WHEREAS, the City Council has investigated and determined that it would be advantageous and beneficial to the citizens of Wylie to repeal Ordinance Nos. 2002-18, 2006-32, 2006-41 and 2007-17 in their entirety and repeal Division 2 (Drought Contingency Program) of Article IV (Water) of Chapter 114 (Utilities) in the Wylie Code of Ordinances and adopt a Drought Contingency Plan for Wylie by replacing it with the North Texas Municipal Water District and by adopting Division 2 (Drought Contingency Plan) of Article IV(Water) of Chapter 114 (Utilities)to the Wylie Code of Ordinances. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 1 599553.1 SECTION 1: Findings Incorporated. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2: Ordinance Nos. 2002-18, 2006-32, 2006-41 and 2007-17 Repealed. Wylie Ordinance Nos. 2002-18, 2006-32, 2006-41 and 2007-17 are repealed in their entirety and replaced by this Ordinance. The effective date of the repeal discussed in this Section shall not occur until the effective date of this Ordinance at which time Ordinance Nos. 2002-18, 2006-32, 2006-41 and 2007-17 shall be repealed. Such repeal shall not abate any pending prosecution and/or lawsuit or prevent any prosecution and/or lawsuit from being commenced for any violation of Ordinance Nos. 2002-18, 2006-32, 2006-41 and 2007-17 occurring before the effective date of this. SECTION 3: Adoption of Division 2 (Drought Contingency Plan) of Article IV (Water) of Chapter 114 (Utilities) to the Wylie Code of Ordinances. Division 2 (Drought Contingency Plan) of Article IV (Water) of Chapter 114 (Utilities), attached hereto as Exhibit "A" and incorporated herein for all purposes, is hereby adopted to the Wylie Code of Ordinances. SECTION 4: Penalty Provision. Any, person, firm, corporation or entity that violates this Ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined a sum not exceeding two thousand dollars ($2,000.00) if the violation relates to the public health and sanitation, otherwise the fine shall be a sum not exceeding five hundred dollars ($500.00). Each continuing day's violation shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude Wylie from filing suit to enjoin the violation. Wylie retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 5: Savings/Repealing Clause. All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 6: Severability. Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Wylie hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, and phrases be declared unconstitutional or invalid. SECTION 7: Effective Date. This Ordinance shall become effective from and after its passage and publication as required by the City Charter and by law. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 2 599553.1 DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS, on this 11 day of October, 2011. Eric Hogue, Mayor ATTESTED AND CORRECTLY RECORDED: Carole Ehrlich, City Secretary Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 3 599553.1 EXHIBIT"A" DROUGHT CONTINGENCY PLAN Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 4 599553.1 DIVISION 2: DROUGHT CONTINGENCY PLAN Sec. 114-91. Introduction and objectives. (a) Water supply has always been a key issue in the development of Texas. In recent years, the growing population and economic development of North Central Texas has led to increasing demands for water supplies. At the same time, local and less expensive sources of water supply are largely developed. Additional supplies to meet higher demands will be expensive and difficult to develop. It is therefore important that NTMWD and its Member Cities and Customers make the most efficient use of existing supplies. This will delay the need for new supplies, minimize the environmental impacts associated with developing new supplies, and delay the high cost of additional water supply development. Recognizing the need for efficient use of existing water supplies, the Texas Commission on Environmental Quality (TCEQ) has developed guidelines and requirements governing the development of water conservation and drought contingency plans for public water suppliers. 1' 2 TCEQ guidelines and requirements are included in Appendix B. The best management practices established by the Water Conservation Implementation Task Force 3, established pursuant to SB 1094 by the 78th Legislature, were also considered in the development of the water conservation measures. The North Texas Municipal Water District (NTMWD) has developed this model water conservation and drought contingency and water emergency response plan for its Member Cities and Customers following TCEQ guidelines and requirements. This model water conservation and drought contingency and water emergency response plan was developed in concert with the NTMWD's water conservation and drought contingency and water emergency response plan. 4 This model water conservation and drought contingency and water emergency response plan replaces the model plans dated August 2004 and April 2006. The water conservation sections of this plan include measures that are intended to result in ongoing, long-term water savings. The drought contingency and water emergency response sections of this plan address strategies designed to temporarily reduce water use in response to specific conditions. (b) The objectives of this model water conservation plan are as follows: (1) To reduce water consumption from the levels that would prevail without conservation efforts. (2) To reduce the loss and waste of water. (3) To improve efficiency in the use of water. 1 Superscripted numbers match references listed in Appendix A. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 5 599553.1 (4) To document the level of recycling and reuse in the water supply. (5) To extend the life of current water supplies by reducing the rate of growth in demand. (c) The water conservation plan presented in this document is a model water conservation plan intended for adoption by the NTMWD Member Cities and Customers. In order to adopt this plan, each Member City and Customer will need to do the following: (1) Complete the water utility profile(provided in Appendix C). (2) Complete the annual water conservation implementation report(in Appendix I). (3) Set five-year and ten-year goals for per capita water use. (4) Adopt ordinance(s) or regulation(s) approving the model plan. The water utility profile, goals, and ordinance(s) or regulations should be provided to NTMWD in draft form for review and comments. Final adopted versions should also be provided to NTMWD, as well as TCEQ. This model plan includes all of the elements required by TCEQ. Some elements of this model plan go beyond TCEQ requirements. Any water supplier wishing to adjust elements of the plan should coordinate with NTMWD. To the extent this model plan conflicts with any other drought contingency plans now existing or in the future adopted by the City, this model plan shall control. All appendices referenced herein are available for review upon request at the office of the City of Wylie Engineer. Sec. 114-92. Texas Commission on Environmental Quality Rules (a) Drought Contingency Plans. The TCEQ rules governing development of drought contingency plans for public water suppliers are contained in Title 30, Part 1, Chapter 288, Subchapter B, Rule 288.20 of the Texas Administrative Code, a current copy of which is included in Appendix B. For the purpose of these rules, a drought contingency and water emergency response plan is defined as"a strategy or combination of strategies for temporary supply and demand management responses to temporary and potentially recurring water supply shortages and other water supply emergencies." 2 Sec. 114-93. Drought Contingency and Water Emergency Response Plan (a) Introduction. The purpose of this model drought contingency and water emergency response plan is as follows: (1) To conserve the available water supply in times of drought and emergency (2) To maintain supplies for domestic water use, sanitation, and fire protection Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 6 599553.1 (3) To protect and preserve public health,welfare, and safety (4) To minimize the adverse impacts of water supply shortages (5) To minimize the adverse impacts of emergency water supply conditions. (b) The NTMWD supplies treated water to its Member Cities and Customers. This model plan was developed by NTMWD in consultation with its Member Cities. In order to adopt this model plan, each NTMWD Member City and Customer will need to adopt ordinance(s) or regulation(s) implementing the plan, including the determination of fines and enforcement procedures. The model plan calls for Member Cities and Customers to adopt drought stages initiated by NTMWD during a drought or water supply emergency. Member Cities and Customers may also adopt more stringent drought or water emergency response stages than NTMWD if conditions warrant. (c) A drought is defined as an extended period of time when an area receives insufficient amounts of rainfall to replenish the water supply, causing water supply sources, in this case reservoirs, to be depleted. In the absence of drought response measures, water demands tend to increase during a drought due to the need for additional outdoor irrigation. The severity of a drought depends on the degree of depletion of supplies and on the relationship of demand to available supplies. The NTMWD considers a drought to end when all of its supply reservoirs refill to the conservation storage pool. (d) State Requirements for Drought Contingency and Water Emergency Response Plans. This model drought contingency and water emergency response plan is consistent with Texas Commission on Environmental Quality guidelines and requirements for the development of drought contingency plans for public water suppliers, contained in Title 30, Part 1, Chapter 288, Subchapter B, Rule 288.20 of the Texas Administrative Code. This rule is contained in Appendix B. (1) Minimum Requirements. TCEQ's minimum requirements for drought contingency plans are addressed in the following subsections of this report: a. 288.20(a)(1)(A) — Provisions to Inform the Public and Provide Opportunity for Public Input— Section 3.3 b. 288.20(a)(1)(B) — Provisions for Continuing Public Education and Information— Section 3.4 c. 288.20(a)(1)(C) — Coordination with the Regional Water Planning Group— Section 3.9 d. 288.20(a)(1)(D) — Criteria for Initiation and Termination of Drought Stages— Section 3.5 e. 288.20(a)(1)(E) — Drought and Emergency Response Stages — Section 3.6 Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 7 599553.1 f 288.20(a)(1)(F) — Specific, Quantified Targets for Water Use Reductions— Section 3.6 g. 288.20(a)(1)(G) — Water Supply and Demand Management Measures for Each Stage— Section 3.6 h. 288.20(a)(1)(H) — Procedures for Initiation and Termination of Drought Stages— Section 3.5 i. 288.20(a)(1)(I) -Procedures for Granting Variances— Section 3.7 j. 288.20(a)(1)(J) - Procedures for Enforcement of Mandatory Restrictions— Section 3.8 k. 288.20(a)(3) — Consultation with Wholesale Supplier — Sections 1, 3.1, 3.5, and 3.6 1. 288.20(b) — Notification of Implementation of Mandatory Measures — Section 3.5 m. 288.20(c)—Review and Update of Plan— Section 3.10 Sec. 114-94. Provisions to Inform the Public and Opportunity for Public Input (a) Member Cities and Customers will provide opportunity for public input in the development of this drought contingency and water emergency response plan by the following means: (1) Providing written notice of the proposed plan and the opportunity to comment on the plan by newspaper, posted notice, and notice on the supplier's web site(if available). (2) Making the draft plan available on the supplier's web site (if available). (3) Providing the draft plan to anyone requesting a copy. (4) Holding a public meeting. Sec. 114-95. Provisions for Continuing Public Education and Information (a) Member Cities and Customers will inform and educate the public about the drought contingency and water emergency response plan by the following means: (1) Preparing a bulletin describing the plan and making it available at city hall and other appropriate locations. (2) Making the plan available to the public through the supplier's web site (if available). (3) Including information about the drought contingency and water emergency response plan on the supplier's web site(if available). Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 8 599553.1 (4) Notifying local organizations, schools, and civic groups that staff are available to make presentations on the drought contingency and water emergency response plan (usually in conjunction with presentations on water conservation programs). (b) At any time that the drought contingency and water emergency response plan is activated or the drought stage or water emergency response stage changes, Member Cities and Customers will notify local media of the issues, the drought response stage or water emergency response stage (if applicable), and the specific actions required of the public. The information will also be publicized on the supplier's web site (if available). Billing inserts will also be used as appropriate. Sec. 114-96. Initiation and Termination of Drought or Water Emergency Response Stages (a) Initiation of a Drought or Water Emergency Response Stage. (1) The City Manager, General Manager, Mayor, Chief Executive, or official designee may order the implementation of a drought or water emergency response stage when one or more of the trigger conditions for that stage is met. The following actions will be taken when a drought or water emergency response stage is initiated: a. The public will be notified through local media and the supplier's web site(if available) as described in Section 3.2. b. Wholesale customers (if any) and the NTMWD will be notified by e- mail with a follow-up letter or fax that provides details of the reasons for initiation of the drought/water emergency response stage. c. If any mandatory provisions of the drought contingency and water emergency response plan are activated, Member Cities and Customers will notify the Executive Director of the TCEQ and the Executive Director of the NTMWD within 5 business days. (2) Drought contingency/water emergency response stages imposed by NTMWD action must be initiated by Member Cities and Customers. For other trigger conditions internal to a city or water supply entity, the City Manager, General Manager, Mayor, Chief Executive, or official designee may decide not to order the implementation of a drought response stage or water emergency even though one or more of the trigger criteria for the stage are met. Factors which could influence such a decision include, but are not limited to, the time of the year, weather conditions, the anticipation of replenished water supplies, or the anticipation that additional facilities will become available to meet needs. The reason for this decision should be documented. (b) Termination of a Drought/Water Emergency Response Stage. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 9 599553.1 (1) The City Manager, General Manager, Mayor, Chief Executive, or official designee may order the termination of a drought or water emergency response stage when the conditions for termination are met or at their discretion. The following actions will be taken when a drought or emergency response stage is terminated: a. The public will be notified through local media and the supplier's web site(if available) as described in Section 3.2. b. Wholesale customers (if any) and the NTMWD will be notified by e- mail with a follow-up letter or fax. c. If any mandatory provisions of the drought contingency and water emergency response plan that have been activated are terminated, Member Cities and Customers will notify the Executive Director of the TCEQ and the Executive Director of the NTMWD within 5 business days. (2) The City Manager, General Manager, Mayor, Chief Executive, or official designee may decide not to order the termination of a drought or water emergency response stage even though the conditions for termination of the stage are met. Factors which could influence such a decision include, but are not limited to, the time of the year, weather conditions, or the anticipation of potential changed conditions that warrant the continuation of the drought stage. The reason for this decision should be documented. Sec. 114-97. Drought Contingency and Water Emergency Response Stages and Measures. (a) Stage 1. (1) Initiation and Termination Conditions for Stage 1. a. The NTMWD has initiated Stage 1, which may be initiated due to one or more of the following: 1. The NTMWD Executive Director, with the concurrence of the NTMWD Board of Directors, finds that conditions warrant the declaration of Stage 1. 2. Water demand is projected to approach the limit of the permitted supply. 3. The storage in Lavon Lake is less than 65 percent of the total conservation pool capacity. 4. NTMWD's storage in Jim Chapman Lake is less than 65 percent of NTMWD's total conservation pool capacity. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 10 599553.1 5. The Sabine River Authority has indicated that its Upper Basin water supplies used by NTMWD (Lake Tawakoni and/or Lake Fork) are in a Mild drought. 6. NTMWD has concern that Lake Texoma, the East Fork Raw Water Supply Project, or some other NTMWD source may be limited in availability in the next 6 months. 7. NTMWD water demand exceeds 90 percent of the amount that can be delivered to customers for three consecutive days. 8. Water demand for all or part of NTMWD's delivery system approaches delivery capacity because delivery capacity is inadequate. 9. NTMWD's supply source becomes contaminated. 10. NTMWD's water supply system is unable to deliver water due to the failure or damage of major water system components. b. Supplier's water demand exceeds 90 percent of the amount that can be delivered to customers for three consecutive days. c. Supplier's water demand for all or part of the delivery system approaches delivery capacity because delivery capacity is inadequate. d. Supply source becomes contaminated. e. Supplier's water supply system is unable to deliver water due to the failure or damage of major water system components. f. Supplier's individual plan may be implemented if other criteria dictate. Stage 1 may terminate when NTMWD terminates its Stage 1 condition or when the circumstances that caused the initiation of Stage 1 no longer prevail. (2) Goal for Use Reduction and Actions Available under Stage 1. Stage 1 is intended to raise public awareness of potential drought or water emergency problems. The goal for water use reduction under Stage 1 is a two percent reduction in the amount of water produced by NTMWD. The City Manager, General Manager, Mayor, Chief Executive, or official designee may order the implementation of any of the actions listed below, as deemed necessary: a. Request voluntary reductions in water use by the public and by wholesale customers. b. Notify wholesale customers of actions being taken and request implementation of similar procedures. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 11 599553.1 c. Increase public education efforts on ways to reduce water use. d. Review the problems that caused the initiation of Stage 1. e. Intensify efforts on leak detection and repair. f. Reduce non-essential city government water use. (Examples include street cleaning, vehicle washing, operation of ornamental fountains, etc.) g. Notify major water users and work with them to achieve voluntary water use reductions. h. Reduce city government water use for landscape irrigation. i. Ask the public to follow voluntary landscape watering schedules. (b) Stage 2 (1) Initiation and Termination Conditions for Stage 2. a. The NTMWD has initiated Stage 2, which may be initiated due to one or more of the following: 1. The NTMWD Executive Director, with the concurrence of the NTMWD Board of Directors, finds that conditions warrant the declaration of Stage 2. 2. Water demand is projected to approach the limit of the permitted supply. 3. The storage in Lavon Lake is less than 55 percent of the total conservation pool capacity. 4. NTMWD's storage in Jim Chapman Lake is less than 55 percent of NTMWD's total conservation pool capacity. 5. The Sabine River Authority has indicated that its Upper Basin water supplies used by NTMWD (Lake Tawakoni and/or Lake Fork) are in a Mild drought. 6. NTMWD has concern that Lake Texoma, the East Fork Raw Water Supply Project, or some other NTMWD source may be limited in availability in the next 3 months. 7. NTMWD water demand exceeds 95 percent of the amount that can be delivered to customers for three consecutive days. 8. NTMWD water demand for all or part of the delivery system equals delivery capacity because delivery capacity is inadequate. 9. NTMWD's supply source becomes contaminated. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 12 599553.1 10. NTMWD's water supply system is unable to deliver water due to the failure or damage of major water system components. b. Supplier's water demand exceeds 95 percent of the amount that can be delivered to customers for three consecutive days. c. Supplier's water demand for all or part of the delivery system equals delivery capacity because delivery capacity is inadequate. d. Supply source becomes contaminated. e. Supplier's water supply system is unable to deliver water due to the failure or damage of major water system components. f. Supplier's individual plan may be implemented if other criteria dictate. Stage 2 may terminate when NTMWD terminates its Stage 2 condition or when the circumstances that caused the initiation of Stage 2 no longer prevail. (2) Goal for Use Reduction and Actions Available under Stage 2. The goal for water use reduction under Stage 2 is a five percent reduction in the amount of water produced by NTMWD. If circumstances warrant or if required by NTMWD, the City Manager, General Manager, Mayor, Chief Executive, or official designee can set a goal for greater water use reduction. The City Manager, General Manager, Mayor, Chief Executive, or official designee may order the implementation of any of the actions listed below, as deemed necessary. Measures described as "requires notification to TCEQ" impose mandatory requirements on customers. The supplier must notify TCEQ and NTMWD within five business days if these measures are implemented: a. Continue or initiate any actions available under Stage 1. b. Notify wholesale customers of actions being taken and request them to implement similar procedures. c. Initiate engineering studies to evaluate alternatives should conditions worsen. d. Further accelerate public education efforts on ways to reduce water use. e. Halt non-essential city government water use. (Examples include street cleaning, vehicle washing, operation of ornamental fountains, etc.) f Encourage the public to wait until the current drought or emergency situation has passed before establishing new landscaping. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 13 599553.1 (3) Requires Notification to TCEQ - Limit landscape watering with sprinklers or irrigation systems to no more than two days per week. The watering days shall be on the customer's trash day and three days thereafter unless otherwise set by the City of Wylie. An exception is allowed for landscape associated with new construction that may be watered as necessary for 30 days from the date of the certificate of occupancy. An exemption is also allowed for registered and properly functioning ET/Smart irrigation systems and drip irrigation systems, which do not have restrictions to the number of days per week of operation. (4) Requires Notification to TCEQ - Restrict landscape and lawn irrigation from 10 AM to 6 PM beginning April 1 through October 31 of each year. (5) Requires Notification to TCEQ - Prohibit planting of cool season grasses (such as rye grass or other similar grasses)that intensify cool season water requirements. (c) Stage 3. (1) Initiation and Termination Conditions for Stage 3. a. The NTMWD has initiated Stage 3, which may be initiated due to one or more of the following: 1. The NTMWD Executive Director, with the concurrence of the NTMWD Board of Directors, finds that conditions warrant the declaration of Stage 3. 2. Water demand is projected to approach or exceed the limit of the permitted supply. 3. The storage in Lavon Lake is less than 45 percent of the total conservation pool capacity. 4. NTMWD's storage in Jim Chapman Lake is less than 45 percent of NTMWD's total conservation pool capacity. 5. The Sabine River Authority has indicated that its Upper Basin water supplies used by NTMWD (Lake Tawakoni and/or Lake Fork) are in a Moderate drought. (Measures required by SRA under a Moderate drought designation are similar to those under NTMWD's Stage 3.) 6. The supply from Lake Texoma, the East Fork Raw Water Supply Project, or some other NTMWD source has become limited in availability. 7. NTMWD water demand exceeds 98 percent of the amount that can be delivered to customers for three consecutive days. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 14 599553.1 8. NTMWD water demand for all or part of the delivery system exceeds delivery capacity because delivery capacity is inadequate. 9. NTMWD's supply source becomes contaminated. 10. NTMWD's water supply system is unable to deliver water due to the failure or damage of major water system components. b. Supplier's water demand exceeds 98 percent of the amount that can be delivered to customers for three consecutive days. c. Supplier's water demand for all or part of the delivery system exceeds delivery capacity because delivery capacity is inadequate. d. Supply source becomes contaminated. e. Supplier's water supply system is unable to deliver water due to the failure or damage of major water system components. f. Supplier's individual plan may be implemented if other criteria dictate. Stage 3 may terminate when NTMWD terminates its Stage 3 condition or when the circumstances that caused the initiation of Stage 3 no longer prevail. (2) Goals for Use Reduction and Actions Available under Stage 3. a. The goal for water use reduction under Stage 3 is a reduction of ten percent in the amount of water obtained from NTMWD. If circumstances warrant or if required by NTMWD, the City Manager, General Manager, Mayor, Chief Executive, or official designee can set a goal for a greater water use reduction. b. The City Manager, General Manager, Mayor, Chief Executive, or official designee must implement any action(s) required by NTMWD. In addition, the City Manager, General Manager, Mayor, Chief Executive, or official designee may order the implementation of any of the actions listed below, as deemed necessary. Measures described as "requires notification to TCEQ" impose mandatory requirements on customers. The supplier must notify TCEQ and NTMWD within five business days if these measures are implemented: 1. Continue or initiate any actions available under Stages 1 and 2. 2. Notify wholesale customers of actions being taken and request them to implement similar procedures. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 15 599553.1 3. Implement viable alternative water supply strategies. 4. Requires Notification to TCEQ — Initiate mandatory water use restrictions as follows: i. Prohibit hosing of paved areas, buildings, or windows. (Pressure washing of impervious surfaces is allowed.) ii. Prohibit operation of all ornamental fountains or other amenity impoundments to the extent they use treated water. iii. Prohibit washing or rinsing of vehicles by hose except with a hose end cutoff nozzle. iv. Prohibit using water in such a manner as to allow runoff or other waste. 5. Requires Notification to TCEQ - Limit landscape watering with sprinklers or irrigation systems at each service address to once every seven days. The watering day shall be on the customer's trash day unless otherwise set by the City of Wylie. Exceptions are as follows: 6. Foundations, new landscaping, new plantings (first year) of shrubs, and trees may be watered for up to 2 hours on any day by a hand-held hose, a soaker hose, or a dedicated zone using a drip irrigation system. 7. Golf courses may water greens and tee boxes without restrictions. 8. Public athletic fields used for competition may be watered twice per week. 9. Locations using other sources of water supply for irrigation may irrigate without restrictions. 10. Registered and properly functioning ET/Smart irrigation systems and drip irrigation systems may irrigate without restrictions. 11. Requires Notification to TCEQ - Limit landscape watering with sprinklers or irrigation systems between November 1 and March 31 to once every two weeks. The watering day shall be set by the City of Wylie. An exception is allowed for landscape associated with new construction that may be watered as necessary for 30 days from the date of the certificate of occupancy, temporary certificate of occupancy, or certificate of completion. 12. Requires Notification to TCEQ — Prohibit hydroseeding, hydromulching, and sprigging. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 16 599553.1 13. Requires Notification to TCEQ — Existing swimming pools may not be drained and refilled (except to replace normal water loss). 14. Requires Notification to TCEQ -Initiate a rate surcharge as requested by NTMWD. 15. Requires Notification to TCEQ - Initiate a rate surcharge for all water use over a certain level. 16. Requires Notification to TCEQ— If NTMWD has imposed a reduction in water available to Member Cities and Customers, impose the same percent reduction on wholesale customers. 17. Requires Notification to TCEQ — Prohibit watering of golf courses using treated water, except as needed to keep greens and tee boxes alive. (d) Stage 4 (1) Initiation and Termination Conditions for Stage 4. a. The NTMWD has initiated Stage 4, which may be initiated due to one or more of the following: 1. The NTMWD Executive Director, with the concurrence of the NTMWD Board of Directors, finds that conditions warrant the declaration of Stage 4. 2. Water demand is projected to approach or exceed the limit of the permitted supply. 3. The storage in Lavon Lake is less than 35 percent of the total conservation pool capacity. 4. NTMWD's storage in Jim Chapman Lake is less than 35 percent of NTMWD's total conservation pool capacity. 5. The Sabine River Authority has indicated that its Upper Basin water supplies used by NTMWD (Lake Tawakoni and/or Lake Fork) are in a severe drought or emergency. 6. The supply from Lake Texoma, the East Fork Raw Water Supply Project, or some other NTMWD source has become severely limited in availability. 7. NTMWD water demand exceeds the amount that can be delivered to customers. 8. NTMWD water demand for all or part of the delivery system seriously exceeds delivery capacity because the delivery capacity is inadequate. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 17 599553.1 9. NTMWD's supply source becomes contaminated. 10. NTMWD's water supply system is unable to deliver water due to the failure or damage of major water system components. b. Supplier's water demand exceeds the amount that can be delivered to customers. c. Supplier's water demand for all or part of the delivery system seriously exceeds delivery capacity because the delivery capacity is inadequate. d. Supply source becomes contaminated. e. Supplier's water supply system is unable to deliver water due to the failure or damage of major water system components. f. Supplier's individual plan may be implemented if other criteria dictate. Stage 4 may terminate when NTMWD terminates its Stage 4 condition or when the circumstances that caused the initiation of Stage 4 no longer prevail. (2) Goals for Use Reduction and Actions Available under Stage 4. a. The goal for water use reduction under Stage 4 is a reduction of whatever amount is necessary in the amount of water obtained from NTMWD. If circumstances warrant or if required by NTMWD, the City Manager, General Manager, Mayor, Chief Executive, or official designee can set a goal for a greater water use reduction. b. The City Manager, General Manager, Mayor, Chief Executive, or official designee must implement any action(s) required by NTMWD. In addition, the City Manager, General Manager, Mayor, Chief Executive, or official designee may order the implementation of any of the actions listed below, as deemed necessary. Measures described as "requires notification to TCEQ" impose mandatory requirements on member cities and customers. The supplier must notify TCEQ and NTMWD within five business days if these measures are implemented. 1. Continue or initiate any actions available under Stages 1, 2, and 3. 2. Notify wholesale customers of actions being taken and request them to implement similar procedures. 3. Implement viable alternative water supply strategies. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 18 599553.1 4. Requires Notification to TCEQ — Prohibit the irrigation of new landscaping using treated water. 5. Requires Notification to TCEQ — Prohibit washing of vehicles except as necessary for health, sanitation, or safety reasons. 6. Requires Notification to TCEQ — Prohibit commercial and residential landscape watering, except that foundations and trees may be watered for 2 hours on any day with a hand- held hose, a soaker hose, or a dedicated zone using a drip irrigation system. ET/Smart irrigation systems are not exempt from this requirement. 7. Requires Notification to TCEQ — Prohibit golf course watering with treated water except for greens and tee boxes. 8. Requires Notification to TCEQ —Prohibit the permitting of private pools. Pools already permitted may be completed and filled with water. Existing private and public pools may add water to maintain pool levels but may not be drained and refilled. 9. Requires Notification to TCEQ — Require all commercial water users to reduce water use by a percentage established by the City Manager, General Manager, Mayor, Chief Executive, or official designee. 10. Requires Notification to TCEQ — If NTMWD has imposed a reduction in water available to Member Cities and Customers, impose the same percent reduction on wholesale customers. 11. Requires Notification to TCEQ - Initiate a rate surcharge for all water use over normal rates for all water use. Sec. 114-98. Procedures for Granting Variances to the Plan. (a) The City Manager, General Manager, Mayor, Chief Executive, or official designee may grant temporary variances for existing water uses otherwise prohibited under this drought contingency and water emergency response plan if one or more of the following conditions are met: (1) Failure to grant such a variance would cause an emergency condition adversely affecting health, sanitation, or fire safety for the public or the person or entity requesting the variance. (2) Compliance with this plan cannot be accomplished due to technical or other limitations. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 19 599553.1 (3) Alternative methods that achieve the same level of reduction in water use can be implemented. (b) Variances shall be granted or denied at the discretion of the City Manager, General Manager, Mayor, Chief Executive, or official designee. All petitions for variances should be in writing and should include the following information: (1) Name and address of the petitioners (2) Purpose of water use (3) Specific provisions from which relief is requested (4) Detailed statement of the adverse effect of the provision from which relief is requested (5) Description of the relief requested (6) Period of time for which the variance is sought (7) Alternative measures that will be taken to reduce water use (8) Other pertinent information. Sec. 114-99. Procedures for Enforcing Mandatory Water Use Restrictions and Coordination with the Regional Water Planning Groups (a) Procedures for Enforcing Mandatory Water Use Restrictions (1) Mandatory water use restrictions may be imposed in Stage 2, Stage 3 and Stage 4 drought contingency and water emergency response stages. The penalties associated with the mandatory water use restrictions will be determined by each entity. (2) Appendix G contains potential ordinances, resolutions, and orders that may be adopted by the city council, board, or governing body approving the drought contingency plan and water response plan, including enforcement of same. (b) Coordination with the Regional Water Planning Groups (1) Appendix F includes a copy of a letter sent to the Chair of the Region C water planning group with this model drought contingency and water emergency response plan. (2) The suppliers will send a draft of its ordinance(s) or other regulation(s) implementing this plan to NTMWD for their review and comment. The supplier will also send the final ordinance(s) or other regulation(s) to NTMWD. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 20 599553.1 Sec. 114-100. Review and Update of Drought Contingency and Water Emergency Response Plan. As required by TCEQ rules, Member Cities and Customers must review the drought contingency and water emergency response plan every five years. The plan will be updated as appropriate based on new or updated information. Ordinance No.2011-24 Repealing 2002-18,2006-32,2006-41 and 2007-17 — Drought Contingency Plan Page 21 599553.1 r , 13 .0 NEWS RELEASE North Texas For Immediate Release Municipal Water District Contact: Rick Ericson 214.706.6000 (office) 214.679.6362 (cell) rick(}lemastergroup.corn NTMWD Initiates Stage 3 Water Restrictions November 1 Consumers allowed to water lawns only once every two weeks November through March (Wylie, Texas- September 28, 2011) Officials with the North Texas Municipal Water District(NTMWD) have initiated Stage 3 of the NTMWD Water Conservation and Drought Contingency and Water Emergency Response Plan, March 2008, (Plan), which goes into effect November 1. The goal of Stage 3 is a 10% reduction in water use and increased awareness in ongoing water conservation efforts. "The U.S. Drought Monitor anticipates the drought will persist or intensify through December 2011, so we are concerned about the declining water levels of our reservoirs," said Jim Parks, executive director of NTMWD. "Conservation is a must, especially when it comes to watering your lawns. Stage 3 means consumers are allowed to water their lawns only once every two weeks." In addition to the extreme temperatures and continuing drought conditions, NTMWD currently can't pump water from Lake Texoma due to the presence of invasive zebra mussels. Lake Texoma normally provides almost a quarter of NTMWD's raw water supply. As of Monday, September 26, 2011, Lake Lavon's elevation was down over 11 feet, and is at 52% of useable capacity. In addition, as of the most recent measurement, NTMWD's Lake Chapman water supply is at 35% due to the continued drought. The NTMWD Board action requests that Member Cities and Customers (including indirect customers)implement the following water conservation strategies: • Initiate Stage 3 of the Member Cities and Customers drought contingency and water emergency response plans no later than November 1. • Limit landscape watering with sprinklers or irrigation systems to once every two weeks between November 1 and March 31 and eliminate watering from 10 AM to 6 PM. Residents should check with their city water department for specific city restrictions. • Foundations, new landscaping, new plantings (first year) of shrubs, and trees may be watered for up to two hours on any day by a hand-held hose, a soaker hose, or a dedicated zone using a drip irrigation system. • Wait until the current drought has passed before establishing new landscaping and no hydroseeding, hydromulching or sprigging allowed. • Do not drain and refill swimming pools except to replace normal water loss. • Halt non-essential city government water use including street cleaning, vehicle washing, operation of ornamental fountains, etc. • Accelerate public education efforts on ways to reduce water usage by 10%. • Initiate engineering studies to evaluate alternatives should conditions worsen. • Watering of golf courses using treated water is prohibited except as needed to keep greens and tee boxes alive. NTMWD is encouraging residents to check control units, rain and freeze sensors on sprinkler systems to prevent unnecessary usage and to repair any water leaks. Extending the NTMWD's water supply during Stage 3 through the efficient use of existing water resources is crucial to meeting the long-term water needs of the NTMWD's Member Cities and Customers. More information and tips on water conservation can be found at www.wateriq.org and www.ntmwd.com. ###