ST0301-CS050215 (2)
ST o?''Ol
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Freese and Nichols
MEMORANDUM
TO: Ken Griffin, P .E.
FROM: Sam Meisner, P.E.
Tricia H. Hatley, P.E.
SUBJECT: Bethel Rd/Coppell Rd Contract Documents
DATE: February 15,2005
We have reviewed the sample set of documents which you provided in conjunction with the
North Central Texas Council of Governments standards. We recommend that you consider
adding the following supplementary conditions to the NCTCOG Division 1 documents along
with revisions to the items that were included in the sample contract documents:
Section 1, Bidding and Contract Documents
1. I. Defined Terms - Add the following definitions:
"Consulting Engineer: The person, firm, or entity hired as an independent consultant by
the OWNER to design the project. The Consulting Engineer shall be understood to be
the Consulting Engineer of the Owner and nothing contained in the Contract Documents
shall be construed to make the Consulting Engineer an employee of the Owner, nor shall
they be construed to create any contractual or agency relationship between the Consulting
Engineer and the Contractor. The term includes the officers, employees, associates,
agents and sub-consultants of the Consulting Engineer, if any. The Consulting Engineer
for this project is Freese and Nichols, Inc., 1701 N. Market Street, Suite 500, Dallas,
Texas 75202."
2. 8.1 - It is necessary to define and document the manner in which time will be considered
as a "strong factor" in terms of contract award.
This is also referenced in 19.2, Bid Form 4., and Bid Form 5.
3. 14 - Estimates of Quantities - Add the following:
"When "Plans Quantity" measurement is specified for an item, adjustment of quantities
will be made by the following:
If the quantities measured as outlined under "Measurement" vary from those shown in the
proposal and on the "Estimate and Quantity" sheet by more than 5%, either party to the
[CPL03243JT:\Memo-contract documents. doc
Freese and Nichols, Inc. · Engineers · Environmental Scientists . Architects
1701 N. Market St. · Suite 500, LB51 . Dallas, Texas 75202-2001
(214) 920-2500 . Fax (214) 920-2565
Bethel Rd/Coppell Rd Contract Documents
February 15, 2005
Page 2 of 4
contract may request, in writing, an adjustment of the quantities by each separate bid
item, except that when stated in the particular item, the adjustment will be made based
upon a designated element shown in the Item. The party to the contract which requests
the adjustment shall present, to the other, one copy of field measurements and
calculations showing the revised quantities in question. These revised quantities, when
approved by the Engineer, together with all other quantities under the same bid item,
shall constitute the final quantity for which payment will be made. When quantities are
revised by a change in design, the "Plan Quantity" will be increased or decreased by the
amount involved in the design change. Payment for revised quantities will be paid for at
the unit price bid for that bid item."
Section 2, Contract Documents
1. Article 2: Add the following:
"The Project has been designed by Freese and Nichols, Inc. who is hereafter referred to as
the Consulting Engineer."
2. Performance and Payment Bonds: The item incorrectly references Article 5160 for Bond
requirements. That Article was changed to Chapter 2253 of the Texas Government Code.
Section 3, Supplementary Conditions to the NCTCOG Standard Specification for Public
Works Construction, Third Edition
1. SC 1.0: Definition of Freese and Nichols, Inc. as Consulting Engineer.
2. SC -1.24.2.1: This paragraph about indemnification needs to be bold and italicized to
stand out in the text.
3. SC-l.33: Replace "working time" with "calendar days"
4. 1.9 Irregular Proposals- Add to the end of the second paragraph: If the conflict is not
brought to the Owner's attention prior to the bid opening, it will be assumed that the more
expensive alternative is included in the Contractor's bid price.
5. 1.10 Rejection of Proposals - In the second sentence, change the word "shall" to "may".
This allows the City to ignore the problem and accept the bid.
6. Item 1.15 The item incorrectly references Article 5160 for Bond requirements. That
Article was changed to Chapter 2253 of the Texas Government Code.
7. Item 1.16 - This calls for a Notice To Proceed to begin the project. Item 1.13 calls it a
written work order. The same terminology should be used everywhere. Replace term
"work order" in Item 1.13 with ''Notice to Proceed."
Bethel Rd/Coppell Rd Contract Documents
February 15,2005
Page 3 of 4
8. Item 1.17 and 1.18 - This states the Contractor must execute the agreement and provide
bonds within 10 days of receiving the documents. The bid form called for 15 days on
page 1-17. Revise the bid form to match the standard specs.
9. Item 1.19 - We typically use the most expensive alternative phrase in lieu of stating a
priority of contract documents.
10. Item 1.21.1 - The item incorrectly references Article 5160 for Bond requirements. That
Article was changed to Chapter 2253 of the Texas Government Code.
11. Item 1.22.2 - Indemnification: This section should be repeated in the contract documents
and needs to be bold and italicized to stand out in the text.
12. Item 1.22.3 - In the second sentence, the word "safety" should be added to the list of
items the Contractor is totally responsible for.
13. Item 1.22.6 - The term "work order"should be replaced by the term ''Notice To Proceed.
14. Item 1.24.4 - The definition of this item should be expanded to recognize that structural
excavations can be considered for trench safety once walls are erected next to excavated
slopes. Also, the fifth sentence appears to be putting the City in the position of directing
when to install trench safety. The reason for having the Contractor retain a professional
engineer in Item 1.24.3 was to eliminate the need for the Owner to take on this
responsibility.
15. Item 1.24.5 - Replace the word "any" with the words "included in the bid proposal."
16. Item 1.26.la - Insert the words "and CONSULTING ENGINEER" after "OWNER" in
the first sentence.
17. Item 1.26.1b - The insurance coverage amounts in the table are lower than what we use in
our standard documents. (see attached).
18. Item 1.26.3 - Suggest deleting the words "If required by OWNER" in the first sentence.
19. Item 1.26.5a(1) - Insert the words "and CONSULTING ENGINEER" after the word
"OWNER."
20. Item 1.26.5a(4) - Insert the words "CONSULTING ENGINEER" after the first "OWNER"
and "and CONSULTING ENGINEER" after the second "OWNER".
21. Item 1.26.5c - Insert the words "or CONSULTING ENGINEER" after the word "OWNER"
throughout the paragraph.
Bethel Rd/Coppell Rd Contract Documents
February 15,2005
Page 4 of 4
22. Item 1.28 - in the seventh paragraph, replace the word "any" with "only" in the second
sentence. Also, add the requirement for the Contractor to stamp his shop drawing with "The
Contractor has reviewed this shop drawing and found it to be in compliance".
23. Item 1.37.1 - Add the words "and OWNER" to the end of the last sentence of the last
paragraph.
24. Item 1.38c - The second paragraph of Method "C" can be strengthened significantly by using
the Time and Material provisions listed in the Engineers Joint Contract Documents
Committee of ASCE instead of the wording that is shown in the NCTCOG documents. One
(but not the only) significant difference is that EJCDC limits mark-ups for sub-tier
contractors to 5% instead of the 15% shown in NCTCOG. (Attached is a copy of the EJCDC
section on this.)
25. Item 1.41 - Recommend deleting "... manner of work performed, rate of progress of the
work, sequence of the construction, ..." from the second sentence. These are items the
Contractor should control.
Section 4, Specific Project Requirements
1. 1.2: Add definition of Consulting Engineer
2. Performance and Payment Bonds: The item incorrectly references Article 5160 for Bond
requirements. That Article was changed to Chapter 2253 of the Texas Government Code.
[NOTE TO SPECIFIER: NORMALL Y, FREESE AND NICHOLS DOES NOT PROVIDE INSURANCE
ADVICE. SPECIFIER IS TO REQUEST THAT OWNER OBTAIN THE ADVICE OF A COMPETENT
INSURANCE COUNSELOR IN SETTING INSURANCE REQUIREMENTS, INCLUDING LIMITS. SEE
CONSTRUCTION SERVICES STANDARD LETTERS FOR ASSISTANCE WITH PREPARING A LETTER
TO THE OWNER TO REQUEST INFORM A TION REGARDING COVERAGE AND AMOUNTS OF
INSURANCE.]
SC-18
The limits of liability for the insurance required by Paragraph 5.04 of the General Conditions shall provide
the following coverage for not less than the following amounts or greater where required by Laws and
Regulations.
Workers' Compensation, etc., under Paragraphs 5.04.A.1 and A.2. of the General
Conditions:
1) State: Statutory
2) Applicable Federal (e.g., Longshore) Statutory
3) Employers'Liability:
Bodily Injury by Accident $500,000
Bodily Injury by Disease - Each Emp/oyee $500,000
.Bodily Injury by Disease - Policy Limit $500,000
4) Maritime Coverage Endorsement
Insurance shall include a waiver of subrogation in favor of the OWNER and ENGINEER,
its officers, employees, agents and subconsultants.
Paragraphs 5.04.A.3, 5.04.A.4 and 5.04.A.5
Contractor's Liability Insurance under Paragraphs 5.04.A.3 through 5.04.A.5 of the General
Conditions shall also include completed operations and product liability coverage, and eliminate the
exclusion with respect to property under the care, custody and control of CONTRACTOR:
(1 ) General Aggregate $1,000,000/ Occurrence
(Except Products - Completed Operations) $2,000,000 / Aggregate
(2) Products - Completed Operations Aggregate $1,000,000/ Occurrence
$2,000,000/ Aggregate
(3) Personal and Advertising Injury $1,000,000
(One Person/Organization)
(4) Each Occurrence $1,000,000
(Bodily Injury and Property Damage)
(5) Limit Per Person - Medical Expense $5,000
(6) Persona/Injury Liability coverage will include claims $1,000,000
arising out of Employment Practices Liability,
limited to coveraQe provided under standard
Supplementary Conditions
LPE 2-1-01
00800-5
contract
(7) Property Damage Liability insurance will provide $1,000,000
explosion, collapse and underground
coverage where applicable
(8) Watercraft Liability Policy: Coverage shall apply to all $1,000,000
self propelled vessels
(9) Excess Liability, Umbrella Form to include coverage of $1,000,000
Watercraft Liability. General Aggregate - Each
Occurrence
Paragraph 5.04.A.6
Contractor's Automobile Liability Insurance under Paragraph 5.04.A.6 of the General Conditions
which shall also include:
(1 ) Bodily Injury:
Each Person $1,000,000
Each Accident $1,000,000
Property Damage - Each Accident: $1,000,000
or
(2) Combined Single Limit (Bodily Injury and Property Damage) $1,000,000
[NOTE TO SPECIFIER: IT IS IMPERA TIVE THA T THE OWNER AND ALL CONSUL TANTS INVOLVED
WITH THIS PROJECT BE LISTED AS ADDITIONAL INSUREDS TO PROVIDE PROTECTION AGAINST
CLAIMS COVERED BY THESE POLICIES. LIST ALL CONSULTANTS INVOLVED IN PROVIDING
DESIGN OR CONSTRUCTION PHASE SERVICES RELA TED TO THIS PROJECT IN THE FOLLOWING
PARAGRAPH.]
Add at the end of Paragraph 5.04 B.1 - The following are to be listed as additional insured on all
insurance policies:
[Legal name of Owner]
Freese and Nichols, Inc
[Legal name of all subconsultants.]
[NOTE TO SPECIFIER: LIST ADDITIONAL TYPES AND AMOUNTS OF INSURANCE THA T MA Y BE
REQUIRED BY OWNER HERE. IF ADDITIONAL INSURANCE IS NOT REQUIRED DELETE THE
FOLLOWING PARAGRAPH 5.04.A.8.]
Add paragraph 5.04.A.8 - In addition to the insurance listed above, CONTRACTOR shall provide the
following insurance:
Add to paragraph 5.04.B.4 - The Contractual Liability coverage shall provide coverage for not less
than the following amounts:
Supplementary Conditions
LPE 2-1-01
00800-6
1. the allowances include the cost to
CONTRACTOR (less any applicable trade discounts) of
materials and equipment required by the allowances to be
delivered at the Site, and all applicable taxes; and
2. CONTRACTOR's costs for unloading and
handling on the Site, labor, installation costs, overhead,
profit, and other expenses contemplated for the
allowances have been included in the Contract Price and
not in the allowances, and no demand for additional
payment on account of any of the foregoing will be valid.
B. Prior to final payment, an appropriate Change Order
will be issued as recommended by ENGINEER to reflect
actual amounts due CONTRACTOR on account of Work
covered by allowances, and the Contract Price shall be
correspondingly adjusted.
11.03 Unit Price Work
A. Where the Contract Documents provide that all or
part of the Work is to be Unit Price Work, initially the
Contract Price will be deemed to include for all Unit Price
Work an amount equal to the sum of the unit price for each
separately identified item of Unit Price Work times the
estimated quantity of each item as indicated in the Agree-
ment. The estimated quantities of items of Unit Price Work
are not guaranteed and are solely for the purpose of
comparison of Bids and determining an initial Contract Price.
Determinations of the actual quantities and classifications of
Unit Price Work performed by CONTRACTOR will be made
by ENGINEER subject to the provisions of paragraph 9.08.
B. Each unit price will be deemed to include an amount
considered by CONTRACTOR to be adequate to cover
CONTRACTOR's overhead and profit for each separately
identified item.
C. OWNER or CONTRACTOR may make a Claim for
an adjustment in the Contract Price in accordance with
paragraph 10.05 if:
1. the quantity of any item of Unit Price Work
performed by CONTRACTOR differs materially and
significantly from the estimated quantity of such item
indicated in the Agreement; and
2. there is no corresponding adjustment with
respect any other item of Work; and
3. if CONTRACTOR believes that
CONTRACTOR is entitled to an increase in Contract
Price as a result of having incurred additional expense or
OWNER believes that OWNER is entitled to a decrease
00700 - 33
in Contract Price and the parties are unable to agree as
to the amount of any such increase or decrease.
ARTICLE 12 - CHANGE OF CONTRACT PRICE;
CHANGE OF CONTRACT TIMES
12.01 Change of Contract Price
A. The Contract Price may only be changed by a
Change Order or by a Written Amendment. Any Claim for
an adjustment in the Contract Price shall be based on written
notice submitted by the party making the Claim to the
ENGINEER and the other party to the Contract in accordance
with the provisions of paragraph 10.05.
B. The value of any Work covered by a Change Order
or of any Claim for an adjustment in the Contract Price will
be determined as follows;
I. where the Work involved is covered by unit
prices contained in the Contract Documents, by applica-
tion of such unit prices to the quantities of the items
involved (subject to the provisions of paragraph 11.03 );
or
2. where the Work involved is not covered by unit
prices contained in the Contract Documents, by a
mutually agreed lump sum (which may include an
allowance for overhead and profit not necessarily in
accordance with paragraph 12.01.C.2); or
3. where the Work involved is not covered by unit
prices contained in the Contract Documents and agree-
ment to a lump sum is not reached under paragraph
12.01.B.2, on the basis of the Cost of the Work
(determined as provided in paragraph 11.01) plus a
CONTRACTOR's fee for overhead and profit (deter-
mined as provided in paragraph 12.01.C).
C. CONTRACTOR's Fee: The CONTRACTOR's fee
for overhead and profit shall be determined as follows;
1. a mutually acceptable fixed fee; or
2. if a fixed fee is not agreed upon, then a fee based
on the following percentages of the various portions of
the Cost of the Work:
a. for costs incurred under paragraphs
11.01.A.l and 11.01.A.2, the CONTRACTOR's fee
shall be 15 percent;
b. for costs incurred under paragraph
11.01.A.3, the CONTRACTOR's fee shall be five
percent;
~L1L ",
c. where one or more tiers of subcontracts are
on the basis of Cost of the Work plus a fee and no
fixed fee is agreed upon, the intent of paragraph
12.01.C.2.a is that the Subcontractor who actually
performs the Work, at whatever tier, will be paid a
fee of 15 percent of the costs incurred by such
Subcontractor under paragraphs 11. 0 LA. 1 and
11.0 1.A.2 and that any higher tier Subcontractor and
CONTRACTOR will each be paid a fee of five
percent of the amount paid to the next lower tier
Subcontractor;
d. no fee shall be payable on the basis of costs
itemized under paragraphs 11.01.A.4, 11.01.A.5,
and 11.01.B;
e. the amount of credit to be allowed by
CONTRACTOR to OWNER for any change which
results in a net decrease in cost will be the amount of
the actual net decrease in cost plus a deduction in
CONTRACTOR's fee by an amount equal to five
percent of such net decrease; and
f when both additions and credits are in-
volved in anyone change, the adjustment in
CONTRACTOR's fee shall be computed on the
basis of the net change in accordance with para-
graphs 12.01.C.2.a through 12.01.C.2.e, inclusive.
12.02 Change of Contract Times
A. The Contract Times (or Milestones) may only be
changed by a Change Order or by a Written Amendment.
Any Claim for an adjustment in the Contract Times (or
Milestones) shall be based on written notice submitted by the
party making the claim to the ENGINEER and the other party
to the Contract in accordance with the provisions of
paragraph 10.05.
B. Any adjustment of the Contract Times (or
Milestones) covered by a Change Order or of any Claim for
an adjustment in the Contract Times (or Milestones) will be
determined in accordance with the provisions of this
Article 12.
12.03 Delays Beyond CONTRACTOR's Control
A. Where CONTRACTOR is prevented from
completing any part of the Work within the Contract Times
(or Milestones) due to delay beyond the control of
CONTRACTOR. the Contract Times (or Milestones) will be
extended in an amount equal to the time lost due to such
delay if a Claim is made therefor as provided in paragraph
12.02.A. Delays beyond the control of CONTRACTOR shall
include, but not be limited to, acts or neglect by OWNER. acts
00700 - 34
or neglect of utility owners or other contractors performing
other work as contemplated by Article 7, fires, floods,
epidemics, abnormal weather conditions, or acts of God.
12.04 Delays Within CONTRACTOR's Control
A. The Contract Times (or Milestones) will not be
extended due to delays within the control ofCON1RACTOR
Delays attributable to and within the control of a
Subcontractor or Supplier shall be deemed to be delays within
the control of CONTRACTOR
12.05 Delays Beyond OWNER's and CONTRACTOR's
Control
A. Where CONTRACTOR is prevented from complet-
ing any part of the Work within the Contract Times (or
Milestones) due to delay beyond the control of both OWNER
and CONTRACTOR. an extension of the Contract Times (or
Milestones) in an amount equal to the time lost due to such
delay shall be CONTRACTOR's sole and exclusive remedy
for such delay.
12.06 Delay Damages
A. In no event shall OWNER or ENGINEER be liable
to CONTRACTOR. any Subcontractor, any Supplier, or any
other person or organization, or to any surety for or employee
or agent of any of them, for damages arising out of or
resulting from:
1. delays caused by or within the control of CON-
TRACTOR; or
2. delays beyond the control of both OWNER and
CONTRACTOR including but not limited to fIres,
floods, epidemics, abnormal weather conditions, acts of
God, or acts or neglect by utility owners or other
contractors performing other work as contemplated by
Article 7.
B. Nothing in this paragraph 12.06 bars a change in
Contract Price pursuant to this Article 12 to compensate
CONTRACTOR due to delay, interference, or disruption
directly attributable to actions or inactions of OWNER or
anyone for whom OWNER is responsible.
ARTICLE 13 - TESTS AND INSPECTIONS;
CORRECTION, REMOVAL OR ACCEPTANCE OF
DEFECTIVE WORK