ALS 88 Design Build LLC v. MOAB Construction Co.

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~coUN'l“r or sTARR- ` ' 4 .i~iovember 29, 2011
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_ ARCHITECTURA.L/ENG]'NEERING SERV'ICES
FOR (]lBWC) NEW ADMINSTMTION I¢Ul'LDFNG FAL¢CON DAM, TEXAS

'Ihis DESIGN/BUILD CONTRACT (the “Conmact") _is made and entered into as of the Tweoty Four day of
October' in the year Two Thousmd & Eleven by. md between the Moab Construc.iion Compamr, ihs “Cootractor”.
and ALS 88 DBSIGN BU]LD LLC, a 'I'eocas Limitecl liability Coi~poraliqn, with its principal place of business at
38249 FM 471- South Na,=talia, Texas 78059 Mediua Cu‘umy (tho “Nchiteoi,”). '

This Contract for the design and eonsu'uction documents of a new Administmtioi:x lBuilding in Falcon Dam Village,
in the Scate ofTexas in Sum' Coumy. 'l`he United isomer Seeiiou of the internatioirml Boundau'y and Watea'
Commission (USIBWC) plans to construct a new administmiio:u building The1:u¢al building footprint is proposed
to he between 5,000 and 5,500 square feet. The new building will consist of a minimum of nine (9) oBioes, hydro
laboratoq', conference room', and security guard area including a weapons locker room, breakroom, ireproof vault
room, IT server room, and reception area. l'his building will replace rhe existing l~'alcon Dom’s Adm:'nisv‘ation
Building. The existing building is no longer functional with respect to building codes, OSH.A requirements, alice
spaee, teehnologieal improvements, and mechanical efEeieney. 'I'he objective is to demolioh the existing building in
its entirety once the new building is consu'neted.

rim counselor and Ar¢hiceci»agreé as fouows. l
lian 1 Ancin'mcr~s nusroNsmn.rrms

1.1 The services perfomie_cl by the Architecr, vArcihirec:t’s employees and Architecf:'s consultants shall be as
enumerated below. . _ j

1.2 'I‘h'eArchitect’s services shall he performed as expeditiously as in consistent with professional skill and care and
die orderly progess ofthe Projeet The Arcl\iteet shall submit for die Conmxctors‘s approval a schedule for the
performance of the Architeet’s services which may be adjusted as the ijec:t proceeds. This sehedule shall
include allowances for periods of time required for the Co__i_i_t_raetor amd Ownqg’s review and for approval of
submisqu by authorities having wiseman wm the Prn_jm .um¢ umw .iimblish¢d by eis schedule
approved bythe Conn'ac'tor and Owner shall not, except for reasonable cause be exceeded by the Architect or
Coniractol'.

AR'I'ICLE'Z SCOPE OF ARCHITECT’S BASIC SERVIC.‘]ES
2.'| DEF,|NITION . ' '

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origi;c_al Scogq of fork for ike USIBH_'C' New A¢bmlnstratloi_v._£uildi)ig, see seamans 2.1, fillz 2.3 , 2.4, 2.5, 2.6 and
&_Z,_'Ihe Architeet’s Basic 5e1-vices consist ofthose described below and any other services identified helow.
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Schematic Design (30% Complet:ion)

Deeign Development (60% Completion)

Dwign Development (75% Completion)

Deeigu Deve|opment (80% Completion)

Consd’uev'on Documenis (90%_Completion)

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Constructioo Documen\s (100% Completion) l
IFC Drawings (aher picking up any 100% design review comments)

2.2 scnmnnc nasrcn msa

2.2.!

2.2.'2

' 2..?.3

The Architect shall review the program SOW finished by the Owner to ascertain die requirements ofthe
Project. Schematic Design Phasc includes: Preiimh)acy Site Plan, Cor.le Analysis, Ontline of Speci£cetions,
Preliminary Floor Plan, Bievations, Roof~Plan, Arca Calculations, Site Snrvey and Geotechnical Survey.
'Ihe LEED regisn'aiicn and project registration would take place during this nme.

The Arehitcet shall review with the Contmccor and O'wner alternative approaches to design and
construction of the Project. .

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2.3 DESIGN DEVELOPMENT PHASE

2.3.`1

2.3.2

2.3.3

2.`3.4

23.5

Based on the approved Schematic Design .Documents and any adjustments audiorized by the Owncr in the
program, schedule or~ construction budget, the Arcln`rtecl shall prepare, for approval by the Ccnn'acbor and
owner, Design Deveiopment Docmnents consisting of drawings and olim documents to fix and describe
the size and character ofthe Projcct as to architecmra'l, scrucmral, mechanical and electrical systems,

materials and such other elements as may he appropriate

ne mm shall advise me cowen orally aajnmm ana reasons by me ownmo ina premium
set ofdrawings thermay change the estimate of Constmction Cost. `

mesa mvelopmem owners win include An me comm above and code wgn emeer -
archivectural, structm~al, HVAC, plumbing, elecn'ieai, lighting it, security and communications system.

. Addil:ional sheets for all engineers, including reflected ceiling plans, interior finishes and detail pages.

.l~`_ivc colored sets ofthc following material forreview and approval by 'lho USIBWC’$ Co_mracting O:Ecer
Representacive include: Floor plans. Building Sections, Building Perspective, and Building Model.
Nan'atives describing how the'design’s appropriateness, color, materiality and value it the &cility context.

The Arclutect and Contractor will develop a more detailed estimate of cost for the Owner.

2.4 coNsrRUcnon oocmvm:ms mass

2.4.1

2.4.2

Based on the approved Design Development Documenls and any further adjustments in the scope or quality
ofthe Project or in the consvucticn budget authon by the 0wner, the Architect shall prepare, for
approval by the Owoer and Contractor, Constmccion Documents consisting ofDrawings and Speciiicatioos

. setting forth in detail the requirements for the construction of the Project.

The Architecc and Conn'actor shall advice the Owner of any adjustments to previous preliminary estimate
of Constraction Cost indica£ed by changes in requirements or general market conditions

2|Pngc

2.4.3

2.4.4

' 2.4.5

2.4.6

2.5.1 l

2.5.2

2.5.3

2.5.4

2.5.5

Thc Architcct shall assist thc Owncr in connection with the Ovvner’s. responsibility for filing docm'nems
required for the approval of governmental authorities having jurisdiction over the Project. '

Design Consultant shall submit for USIBWC revian and comment tive (5) copies of the inal (100%-
completed) Oonstruction Dccumcnts. One copy shall be mailed directly to the THC point of contact as per
coordination with the 'l'l-IC. The design consulan will be required to allow for a minimum 6 week review

by the THC as per Section 106 regulations

thn Scope Cornpliance Review by the USIBWC; and Code Cornpliance Rcvicw by the USTBWC’s
Contracting Oflicer chresentative, and review agency required changes or corrections have been
incorporated by Dcsign Consdltant, the lOO"/o-completed Construetion Docummts will be deemed to be
final and ready for USIBWC.' Design` Consultant shall provide to USlBWC one (l) set of Mylar

reproducible Drawings, two (2) sets cfprints, and the complete set of the Specilications, cf the final (100%
back checlwd and corrected) set cf Ctmsnnction Documents 'l.`he Spccilicatloos shall be provided in both
hard copy fonn and in electronic fenner disk latest version of Microsoft Word and Adohe Acrohat, PDF

formats

Dcsign Profcssional is also required to provide USIBWC with an electronic version of the Drawings that is ,
compatible with AutoCAD 2009. ' "'""'

v32.5 CONS’I'RUCT!.ON PHASE»ADMINISTRAT¢ON OF '.[`l'le CONSTRUCTION CONTRACT

Thc Architect’s responsibility to provide Basic Services for the Constrnction Phaso under this agreement
commences with the thice To Procced to thc Conoactor and 'lerminanes at the earlier of the issuance to the
Owner ofthe final Certitlcare for Paymcnt or 60` days after the date oft':'ubstautial Completion ofWork.

The Architect shall provide adminisn'arlon of the Contract for Constmction as set forth below and in the
edition _ofAlA Document A201, General Conditions of the Conlract for Constructicn, current as of the date
ofthis Agrecment, unless otherwise provided in this Agreement. Modi{dcations made to the General .
Conditioos, when adopted as part of the Contract Documcnts, shall be r:)nforccable under this Agreemcot
only to the extent that they arc consistent with this Agreemont cr approved in- writing by the Architect.

Duties, responsibilities and limitations of authority ofthe Architcct under this Paragraph 2.6 shall not be
restricted modified or extended without written agreement of the Contlactcr.

'Ihe Ardtlt¢ct shall visit the site at intervals appropriate to the stage ofthe Contractor’s operations or as
otherwise agreed by the Connaetor. 'l’he Architect to become generally familiar with and to keep the Owner
informed about the progress and quality cfth_c portion ofthc Work completed1 (2) to endeavor to guard the
Owner against defects and deficiencies in the Work, and (3) to determine in general ifthc Work is being
perfonned in a manner indicating that the Work, when fully completed, will be in accordance with the
Conu'act Documents. However, the Architect shall not be required to make exhaustive or continuous on-
site inspections to check the quality or quantity ofthe Work. 'l"he Architect shall neither have control over
or change of, nor be responsible for, the construction means, methods techniques sequences or procedures
or for safety precautions and programs in connection with the Work, since these are solely the Ccntractor’s
rights and responsibilities under the Conn'act Documents.

'l'he Architect shall notbe responsible for the Conv~actor' s failure to perform the Work in accordance with
the requirements of the Contract Documcnts. The Architect shall be responsible for the Architect’s
negligent acts or omissions, but shall not`have control over or change ot` and shall not be responsible for
acts or omissions ofthc Conn~actor, Suocontractors, or their agents or cmployces, or ot`any other persons or
entities performing portions cf the work

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'2.5.6 The Archit:ect shall at all times have access to the Work wherever it is in preparation or progress

2.6 CERTIFICATES FOR PAYMENT FO]R THE CONTRACTOR

2.6.1.1 'l'he Architect’s certiiication for payment shall constitute a representation to the 0wner, based on the
Architect’s` evaluation of the Work and on the rim comprising the Coni:cactor’s Applicalion for Payment,
that the Wotk has progressed t_o the point indicated and thatt, to the best of the Architect’s knowledge
intimation and beliof, the quality of the Worlc is in accordance with the Contract Documcnts. Tlic
foregoing representations are subject (l)\ to am evaluation ofthc Work conformance with the Contract
Docmnents upon Substantial Completion, (2) to results of subsequent tests and inspections (3) to
correction of minor deviations from the Contract Docmnents prior to completicn, and (4) to' specific

qualifications expressed by the Architect.

2.6.!2 The issuance of a Cerl:iicatc for Payment shall not be a rqnesentadon that the Architect has (l) made
e>diaustive or continuous on~site inspections to check the quality or quantity of the Work, (2) reviewed
construction means, methods, techniques sequences or procedures (3] reviewed copies of requisitions
received ti'otn Subcono'actors and material supplion; and other data requested by the 0wner to substantiate
the Conuacror’s rigit to payment, or .(4) ascertained how or for what purpose the Conuactor has used
money previously paid on account of the Conn'act Sum.

2.6.2 The Architect shall have authority to reject Work that does not conform to the Contracc Docnmeots.
Whenever the Architect considers it necessary or aclvisable,‘the Archinact shall have authority to require
inspection ortesting of the Woti¢ in accordance with the provisions of'the Oonuact Docum-ts, whether or
not such Woxic is fabricated installed or completed Howevecr, m exercise such authority shall give rise to a
duty ortao a duty or responsibility of the Architect to the Contractor, Snbcotm~actors, materials and
equipment suppliers, their agents or employees or other persons or entities performing portions of the
Work. ’ .

2.7 ARCBITECT’S REV]EW OF SUBMITTALS, PERFORMANCE CRITERIA & CHANGES TO
` CONSTRUCT]ON DOCUMENTS

2.7.l Thc Architect shall review and approve or nike other appropriate action upon the Conu‘actor's submittals
such as Shop Drawings, Product Data and Samples, but only forthe §de pm'pose of checking for
conformance with information given and.the design concept expressed in the Conn~act Documents. The
Arch.itect's action shall bc taken with such reasonable promptness as to cause no delay in the Worlc or in
the activities of the 0wner, Conn'actor or separate contractors, while allowing sufficient time in the
Archiwct"s professional judgment to permit adequate revicw. Review of such submimals is not conducted
for the propose 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 ofthe Contractor as required by the Conuact Docnments. The Architect's
review shall not constitute approval ofsa;l’ety precautions or, unless otherwise specifically stated by the
Architect,-ofany construction mcans, methods, techniques sequences or procedm'es. The Architectfs
approval of a specific item shall not indicate approval ofan assembly of which the item is a component

2.7.2 lfprofessional design services or cerli;(ications by a design professional related to systems, materials or
equipment are specifically required ofthe Contractor by the Conh'act Documents, the Architoct shall
specify appropriate performance and design criteria that such services must satisiy. Shop Drawiogs and
other submitmls related to the Work designed or certified by the design professional retained by the

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2.7.3

2.7.4

2.7.5

2.7.6

2.7.7

3.1.1

3.1.2

3.1.3

Contractor shall bear such professional ’s written approval when submitted to the Architect 'I'he‘ Architect
shall he entitled to rely upon the adequacy, accuracy and completeness ofthe services certifications or

approvals performed by such design professionals

The Arch:'ctect shall prepare Change Orders and Conslruction Change Directives, with supporting
documentation and dm ifdeemed necessary by the Architect and may authorize rumor changes in the
Work not involving an adjustment in the Coutract S\nn or an extension ofthe Conu'act 'l'ime which are

consistent with `the intent ofthe Contract Doouments.

The Architect shall conduct inspections to determine the date or dates of Substantial Co;mpleti_on and the
dam offmal completion shall receive nom the Cornrector and forward to the Owner, for the Owner’s
review and records, written warranties and related documents required by the Contract Documcnts and
assembled by the Conn~actor, and shall issue a iinal Cortilicate for Paynnent based upon a linal. inspection
indicating the Work complies with the requirements ofthc Conn'act Doouments.

T.he Architect shall interpret and decide matters concerning performance of the Owuer and Conn*actor
under, and requirements of, the Contract Documents on written request of either the Owner or Conn‘actor.
The Architect’s response to such requests shall be made in writing within any time limits agreed upon or
otherwise with reasonable promptness

linespretotions and decisions of the Architect shall he consistent with the intent of and reasonably mfm'able
il'om the Contract Documents and shall be in writing or in the form ofclrawings. 'When making such
interpretations and initial decisions the Architeot shall endeavor to seems faithlixl performance by both
Owner and Conu'acwr, shall not show partiality to either,`and shall not be liable for results of
interpretations-or decisions so rendered in good fairh.

The Archinect’s decisions on claims, disputes or other matters in question between the Owner and
Conu'actor, except for those relating to aesthetic efliecc shall be subject to mediation and arbitration as
provided in this Ageement audio the Contract Docmnenw.

' ARTICLE 3 coNTRAc'roR’s REsPoNsm!Ln~ms

'I'hc Conu‘actoa' shall establish and periodically update an overall budget for the Project, including the

` Construction Cost, the Ownor’s other costs and reasonable contingencies relatedto all of these costs.

The Conu'actor shall fm-nish all legal, acco\mv'ng and insurance services that maybe necessary at any time
for the Project to meet the O'wner’s needs and interests

'I'he Conlmactor shall provide prompt written notice to the Architect if the Ccnn'actor becomes aware of any
fault or defect in the Project, including any en'ors, omissions or inconsistencies in the Architect’s
instrummts of Service.

AR"|`ICLE 4 MEDIATION

4.1.1

Any cluim, dispute or other matter in question arising out of or related m this Agreemcnt shall be subject to
mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by
either party. Ifsuch matte¢'s_relates to or is the subject of a lien arising out of the Archilsect’s services, the
Architect may proceed in accordance with applicable law to comply with the lien notice cr iling deadlines

' prior to resolution of the matter by mediation or by arbitration

4.1.2

'Il1e Owner and Design Builder shall endeavor to resolve claims, disputes and other matters in question
between them by mediation which, unless the parties mutually agree otherwise shall be in accordance with
the Medialion Rulec of the char County court house alternative dispute resolution currently in eH"ect.

4.].3

4.1.4
4.!.5

4.1.6
4.1.7

4.] .8

Reduest for mediation shall be filed in writing with the other party to this Agreement and with the
Americnn Arbitration Association. The request may be made conmzrrenuy with the Hling of a demand for
arbiu'atioh bnt, in such event, mediation shall proceed in advance of m'biu'ation cr legal or equitable

. prooecdings, which shall be stayed pending mediation for a period of.oll days from the dgte of tiling, unless
> `sl:ayed for a longer period by agreement of the parties or court order.

'!`he padies shall share the mcdiator's fec and any filing fees cqually.
The mediation shall be held in Bexar Coun'ty,, unless another location is mutually agreed upon.
The parties should agree that the mediation be'oonlidential and non-binding

'Ihe parties shall both agree on who will conduct the mediation and tile mediator shall be paid equally by
both parh`es. ` _

‘l`he parties agree to mediate in good faith until such time as either party determines that it is hoitless to
continue '

If the parties cannot reach an agreement the mediation will result in an impasse

ARTICLE 5 BASIS O_F COMPENSATION

5.l.l

5.1.2

No deductions shall be made from thc Architect’s omnpeosation on account ofpcnalty, liquidated damages
or other sums withheld §'om payments to cootractons, or on account of the cost of changes in the Work

other than those for which Architect has `becn adjudged to be liable.

For Basic Ser\}ioes, as described in Arr.ic`le 2, and any other services inclu&d the sum of $202, 500.'00 Two
Hundred Thousand and Two 'I`housand Five H\mdred Dollm's and zero cenis. This will be billed monthly
as perthe Cost Loaded Dcsign Schcdule submitted to the Owner on 1020.2011.

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Moab Construction Date

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Annaswcia L. Seqnoyah - ALS 88 Design Bu.ild LLC Datc

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