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Ordinance No. 16,177ORDINANCE NO. 16,177 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING CHANGE ORDER NO. 1 TO THE PROGRESSIVE DESIGN BUILD AGREEMENT WITH BAYTOWN WATERWORKS PARTNERS, MCCARTHY BUILDING COMPANIES, INC., AND CAROLLO ENGINEERS, INC., JOINT - VENTURE, FOR THE BAYTOWN AREA WATER AUTHORITY EAST SURFACE WATER TREATMENT PLANT PHASE 2 EXPANSION; MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ************************************************************************************* WHEREAS, the Baytown Area Water Authority's enabling legislation requires that the City Council approve certain agreements before the Baytown Area Water Authority ("BAWA") enters into the same; and WHEREAS, on June 25, 2025, the Board of Directors of BAWA approved Change Order No. 1 to the Progressive Design -Build Agreement with Baytown Waterworks Partners, McCarthy Building Companies, Inc., and Carollo Engineers, Inc., joint -venture, for the Baytown Area Water Authority East Surface Water Treatment Plant Phase 2 Expansion; and WHEREAS, the City of Baytown desires to approve such change order; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the recitals set forth hereinabove are hereby found to be true and correct and are hereby adopted. Section 2: That the City Council of the City of Baytown, Texas, hereby approves Change Order No. 1 to the Progressive Design -Build Agreement with Baytown Waterworks Partners, McCarthy Building Companies, Inc., and Carollo Engineers, Inc., joint -venture, for the Baytown Area Water Authority East Surface Water Treatment Plant Phase 2 Expansion, which said Change Order is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote I the City Counc} of the City of Baytown this the 26"' day of June, 2025. n J �L o�O�,yTO�Y�,,®� �, Cl'�IARLES Jf in Mayor A ES l/ VED AS SCOTT LEMONI3, City Attorney R:',Ordinances and ResolutionslOrdinance Drafts\2025-06-26\Approving Change Order No. LBAWA East Surface Water Treatment Plant Phase 2 Expansion. Baytown Waterworks.kh.docx CITY OF BAYTOWN PUBLIC WORKS & ENGINEERING 2123 Market St. ' Baytown, Texas 77520 BMTOWN CHANGE ORDER #1 BAWA East Surface Water Treatment Plant Phase 2 Expansion - BAWA2401 )ate of Issuance: 6 182025 Change Order No.: I Contractor: Baytown Waterworks Partners COB Project No.: BAWA2401 Designer: Baytown Waterworks Partners P.O./Contract No: 2417116/4250124 Explanation: This change order encompasses the following: To accommodate the evolving needs of the project, it is proposed to reallocate funds from the upcoming Phase 2 portion of this project and advance the design to 900 o and preconstruction to 700 o as part of Phase 1. (Current design is at 600o and preconstruction is at 600o in Phase 1.) Texas Commission of Environmental Quality is requiring an additional 100 days of review that was not anticipated in the original schedule. By moving the allocated budget from Phase 2, we can extend Phase 1 allowing the project to maintain momentum and recover as much of the additional 100 days as possible. This reallocation will not affect the overall budget but will optimize resource distribution to meet the project's current priorities. We believe this change will enhance the efficiency and effectiveness of the project execution. The Design -Builder's proposal is attached to Change Order No. 1. Phase 2 of this project is expected to be funded by a low -interest loan from the Texas Water Development Board (TWDB). The TWDB will require all parties to agree on additional contractual language. This Change Order will serve as the contractual document between all parties to incorporate the TWDB Supplemental Contract language (TWDB form-0552). The TWDB language is attached to Change Order No. 1 and shall be considered an additional other document pursuant to article 2.1.7 of the agreement. Description A Work 1. Design to 900o and Preconstruction to 700o 2. TWDB-0552 additional contract lanaguage 4 Please attach back-up documentation Cost & Time Change Summary Original Contract: Previous Change Order(s): Contract prior to this change order: Net increase (decrease) from this change order Revised Contract: Percent increase (decrease) this Change Order 29.300 Percent increase (decrease) all Change Orders 29,300 ACCEPTED*: By:_2 � Date: 11 June 2025 Design Budder RECOMMENDED: BY Date: 11 June 2025 Owners Advisor Construction I of 2 Cost Time $ 1,473,578.00 90 Days $ - 0 Days $ - Days $ - Days $ - Days Cost Time $ 5,023,131.00 365 Days Days $ 5,023,131.00 Days $ 1,473,578.00 90 Days $ 6,496,709.00 455 Days RECOMMENDED By: . v / — . Date: 06/11 /2025 Frank Sunoneaux 1r Direcwr of Public Works & Enguteenng FINANCE APPROVAL: By: Date: Teresa McKer%QTCh1_e_f1rftncia1 Officer D16 Revised 9 2023 COMM N 'D: By:REDate: P.Ject Ma ger VERI IED: By: ate: smess sset Team Member 6-11-2025 6-11-25 APPROVED: By: Date: Jason E Reynolds, City Manager •Design -Budder agrees to perform change(s) included in this Change Order for the price and tune indicated The prices for changes included all costs associated with this Change Order No work is to be done until this change order is executed No payment to the Design -Budder (or Consultant) shall be made for work included in the change order until the Design -Builders pay estimate is updated Revise the project plans and specifications as referenced and insofar as the original project drawings and specifications are inconsistent, this Change Ogler governs Upon execution by all parties, the following changes identified for the contract value and/or contract time shown, are made part of the contract Construction 2 of 2 D 16 Revised 9 2023 Ica: o/lo° 3600 Buffalo Speedway Ste 250, Houston, TX 77099 p713-963-9790 I f 713-963-9794 May 22, 2025 Enrique Villa 7425 Thompson Road Baytown, Texas 77521 RE: BAWA East Surface Water Treatment Plant (BAWA East SWTP) Phase 1 Amendment for Design Advancement to 90% & Preconstruction Advancement to 70% Dear Mr. Villa, Baytown Waterworks Partners (BWP) is pleased to provide the Phase 1 Amendment proposal for design advancement to 90% and preconstruction advancement to 700,E for this project. We can complete this study for a lump sum fee of $1,473,578. We have included 3 documents as part of this amendment. 1) Scope of Work Summary 2) Summary of Cost Breakdown 3) Revised Phase I Schedule Please feel free to call me, if you have any questions. Sincerely, Russell Schulze, P.E. Baytown Waterworks Partners BWP.= BWP" Baytown Area Water Authority East Surface Water Treatment Plant Phase 2 Expansion Amendment for Design Advancement to 90% & Preconstruction Advancement to 70% SCOPE OF WORK BACKGROUND In order to make efficient use of the time during required permitting activities, this design amendment allows BWP to continue advancing the design, increasing the level of detail used for the bid set, improving overall design quality, reducing construction risk and contingencies, continue to cost trend the project and also allowing BAWA and BGE additional review time and opportunities for feedback. This amendment does not add project costs, but instead moves associated design, estimating, and oversight costs from Phase 2 into Phase 1. SCOPE OF WORK General Assumptions 1. Baytown Waterworks Partners (BWP) is the design builder, referred to as "Design -Builder" or "BWP" in this document. 2. BAWA and its staff are referred to as "BAWA" or "Owner" in this document. 3. BAWA has contracted with BGE, Inc. to support BAWA throughout design and construction of the Project. This entity is referred to as the "Owner's Advisor" or "OV. 4. General project collaboration and coordination between BAWA and Construction Contractor, outside workshops and meetings, shall be facilitated through email, phone/Teams (screensharing), and the project specific Procore portal. S. Submittals shall be provided in electronic copy (.pdf and .docx) and transmitted via email or secure file transfer. All deliverables shall be electronic only unless hard -copies are specifically indicated. 6. Meeting minutes and reports will include both a draft version and a final version, unless specifically indicated otherwise. Final version will incorporate responses to comments on the draft version. If no comments are provided within a week, the draft version will be considered final. 7. The Phase 1 schedule has been updated to reflect this Phase 1 amendment, included as attachment A, with a new phase 1 completion date of 10/31/2025. a. The schedule includes anticipated durations for regulatory review/approvals, funding review/approvals and BAWA review/approvals that are outside the control of BWP. Any changes to these dates/durations could affect the cost and schedule associated with phase 1 or phase 2 services. SUBMITTED / Page 1 of 3 :BfWIP , Task 1 Amendment - Project Management This amendment adds two months of additional project management activities. Task 5 Amendment - Engineering Design Development BWP will continue to submit a 60% design package to BAWA and the OA. The contents of the 60% design package will be as described in the Scope of PDB services for Phase 1. Under this amendment, the following activities will be added to Task S: • BWP will receive, review, and incorporate comments from BAWA and the Owner's advisor on the submitted 60% design package. This includes conducting an in -person 60% design review meeting. • BWP will advance the design to a 70% design level, incorporating comments from BAWA and the OA, and prepare a stamped and signed document package for the Regulatory, Programmatic, and Bid Design Package (RP&B). This document will be submitted to TCEQ and TWDB for approval and will also be used to develop the GMP. • Following the 70% Design, BWP will continue to advance the design to a 90% level. The 90% design will advance the design towards being construction ready as well as incorporate bid period feedback, garnered through the GMP process. • BWP will perform Subsurface Utility Engineering (SUE) & Mapping services to verify as -built conditions to influence design progression from 60% to 90% design. • The 90% design will undergo formal internal review by BWP staff before being submitted to BAWA and the OA for final review. Development of the final, issued for construction (IFC) drawing set (including receipt of BAWA/OA comments and a 90% review meeting) will remain part of Phase 2. Task 5 Amendment Assumptions 1. Design submittals will be delivered in PDF format. No hard copies are assumed. 2. The Predesign report will not be updated at the 90% level. 3. A formal BAWA/BGE review and comment period will not be included as part of the 70% design package. Task 5 Amendment Meetings 1. 60% Design Review Meeting Task 5 Amendment Designer Deliverables 1, 70% Design Package —including stamped drawings, specifications, and predesign report (submitted to TCEQ/TWDB) 2. Responses to BAWA/BGE comments on the 60% design 3. 90% Design Package (drawings and specifications) SUBMITTED / Page 2 of 3 Task 6 Amendment - Preconstruction Services BWP will continue to monitor design trends, provide constructabil.ty feedback, perform cost trending and update the project schedule from the 60% design package through the 70% design package. Task 6 Amendment Assumptions 1. Cost trending will be maintained through the online JOIN platform. 2. Critical Path Method CPM Schedule updates will be maintained through Primavera P6 software. Task 6 Amendment Meetings 1. 60% Design Review Meeting Task 6 Amendment Deliverables 1. Monthly CPM schedules SUBMITTED / Page 3 of 3 Added Scope to Phase 1 Services Key Personnel Rate ($) Hours Total ($} Construction Manager $ 185.00 175 $ 32,375 Procurement/Cost Manager $ 195.00 175 $ 34,125 Engineering Manager $ 350.00 117 $ 40,950 Design Manager $ 330.00 96 $ 31,680 QA/QC Manager $ 330.00 152 $ 50,160 Additional Staff Rate ($) Hours Total ($) IDDNDC Manager $140.00 175 $ 24,500 Structural Estimator $135.00 175 $ 23,625 Mechanical Estimator $135.00 175 $ 23,625 Electrical Estimator $150.00 175 $ 26,250 Civil Estimator $135.00 175 $ 23,625 Estimator $110.00 70 $ 7,700 Scheduler $135.00 24 $ 3,240 Engineer IV $300.00 632 $ 189,600 Engineer lit $250.00 637 $ 159,250 Engineer II $220.00 615 $ 135,300 Engineer 1 $155.00 428 $ 66,340 Senior GIS/CADD $200.00 596 $ 119,200 GIS/CADD $155.00 587 $ 90,985 Administrator $135.00 99 $ 13,365 Subconsultants & Expenses QTY Unit Total ($} Subconsultant - Kalluri 1 LS $ 276,000 Subconsultant - Aviles 1 LS $ 30,000 SUE/Mapping: Site Investigation 1 LS $ 54,000 Cost of Risk 1 LS $ 17,683 TOTAL $1,473,578 AAA I 4 B (A V �' OI O N d r�l d yuaJ yet � r a W y F H 9 {aWy Q4R N W O - Q m Texas Water Development Board Supplemental Contract Conditions For Construction Services for Projects Funded through State Program TWDB-0552 Rev11/18 TWDB-0552 I. INSTRUCTIONS TO BIDDERS The language and conditions listed in this section shall be included in Section 1.3 of the Design -Builder Agreement, 1. Contingent Award of Contract This contract price agreement is contingent upon release of funds from the Texas Water Development Board. Any contract or contracts awarded under this Invitation for Bids is are expected to be funded in part by a loan or grant from the Texas Water Development Board. Neither the state of Texas, nor any of its departments, agencies, or employees are or will be a party to this Invitation for Bids or any resulting contract. 2. U.S. Iron and Steel (Does not apply to SWIFT Projects funded prior to May1, 2019) Any contract(s) awarded under this Invitation for Bids is/are subject to the United States Iron and Steel requirements of Texas Water Code § 17.183 and/or Texas Government Code, Chapter 2252, Subchapter F, as amended by SB 1289, 851h Legislative Session. The Design - Builder must complete the statement of understanding regarding this requirement, found in the Supplemental Contract Conditions, Item No. 9. Refer to TWDB-1105 — United States Iron and Steel (US I&S) Guidance. 3. Bid Guarantee The design builder shall furnish a bid guarantee equivalent to five percent of the proposal for the Guaranteed Maximum Price (GMP) (Water Code § 17.183). If a bid bond is provided, the Design -Builder shall utilize a surety company which is authorized to do business in Texas in accordance with Surety Bonds and Related Instruments, Chapter 3503 of the Insurance Code. 4. Award of Contract to Nonresident Bidder A governmental entity may not award a governmental contract to a nonresident bidder unless the nonresident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the amount by which a resident bidder would be required to underbid the nonresident bidder to obtain a comparable contract in the state in which the nonresident's principal place of business is located. A non-resident bidder is a Design -Builder whose corporate offices or principal place of business is outside of the state of Texas (Source: Texas Government Code, Chapter 2252, Subchapter A, Nonresident Bidders, §2252.002). The bidder will complete form TWDB-0459, Vendor Compliance with Reciprocity on Non - Resident Bidders, which must be submitted with the GMP proposal. TWDB-0552 Rev11/18 II. SUPPLEMENTAL CONTRACT CONDITIONS (Added to 2.1.7 in Design -Builder Agreement) 1. Supersession The Owner and the Design -Builder agree that the TWDB Supplemental Conditions apply to the work eligible for Texas Water Development Board assistance to be performed under this contract and these clauses supersede any conflicting provisions of this contract. 2. Privity of Contract Funding for this project is expected to be provided in part by a loan or grant from the Texas Water Development Board. Neither the state of Texas, nor any of its departments, agencies or employees is, or will be, a party to this contract or any lower tier contract. This contract is subject to applicable provisions in 31 TAC Chapter 363 in effect on the date of the assistance award for this project. 3. Definitions (a) The term "Owner" means the local entity contracting for the construction services. (b) The term "TWDB" means the Executive Administrator of the Texas Water Development Board, or other person who may be at the time acting in the capacity or authorized to perform the functions of such Executive Administrator, or the authorized representative thereof. (c) The term "Owner's Advisor" means the Owner's authorized consulting engineer for the project. 4. Laws to be Observed In the execution of the contract, the Design -Builder must comply with all applicable local, state and federal laws, including but not limited to laws concerned with labor, safety, minimum wages, and the environment. The Design -Builder shall be familiar with and at all times shall observe and comply with all federal, state, and local laws, ordinances and regulations applicable to Design Builder's Work, and shall indemnify and save harmless the Owner, Texas Water Development Board, and their representatives against any claim arising from violation of any such law, ordinance or regulation by the Design -Builder, their Subcontractor or their employees. 5. Review by Owner and TWDB (a) The Owner, authorized representatives and agents of the Owner, and the TWDB shall, at all times have access to and be permitted to observe and review all work, materials, equipment, payrolls, personnel records, employment conditions, material invoices, and other relevant data and records pertaining to this contract, provided, however that all instructions and approval with respect to the work will be given to the Design -Builder only by the Owner through authorized representatives or agents. (b) Any such inspection or review by the TWDB shall not subject the state of Texas, or its representatives, to any action for damages. TWDB-0552 Rev 11/18 6. Performance and Payment Bonds Each Design -Builder awarded a construction contract must furnish performance and payment bonds: (a) the performance bond shall include without limitation guarantees that work done under the contract will be completed and performed according to approved plans and specifications and in accordance with sound construction principles and practices; (b) the performance and payment bonds shall be in a penal sum of not less than 100 percent of the contract price and remain in effect for one year beyond the date of approval by the Owner's Advisor of the political subdivision; and (c) the Design -Builder shall utilize a surety company that is authorized to do business in Texas in accordance with Surety Bonds and Related Instruments, Chapter 3503 of the Insurance Code. 7. Payments Schedule and Cost Breakdown (a) The Design -Builder shall submit for approval immediately after execution of the Agreement, a carefully prepared Progress Schedule, showing the proposed dates of starting and completing each of the various sections of the work, the anticipated monthly payments to become due to the Design -Builder, and the accumulated percent of progress each month. 8. Workers' Compensation Insurance Coverage (as applicable, consistent with Texas Labor Code § 406.096) (a) The Design -Builder shall certify in writing that they provide workers' compensation insurance coverage for each employee of the Design -Builder employed on the public project. (b) Each Subcontractor on the public project shall provide such a certificate relating to coverage of the Subcontractor's employees to the Design -Builder, who shall provide the Subcontractor's certificate to the governmental entity. (c) A Design -Builder who has a contract that requires workers' compensation insurance coverage may provide the coverage through a group plan or other method satisfactory to the governing body of the governmental entity. (d) The employment of a maintenance employee by an employer who is not engaging in building or construction as the employer's primary business does not constitute engaging in building or construction. (e) In this section: (1) "Building or construction" includes: i. erecting or preparing to erect a structure, including a building, bridge, roadway, public utility facility, or related appurtenance; ii. remodeling, extending, repairing, or demolishing a structure; or iii. otherwise improving real property or an appurtenance to real property through similar activities. TWDB-0552 Rev 11/18 (2) "Governmental entity" means this state or a political subdivision of this state. The term includes a municipality. 9. U.S. Iron and. Steel (Does not apply to SWIFT Projects funded prior to May1, 2019) The following statement must be completed by the Design -Builder and made a part of the agreement between the Owner and the Design -Builder. The Design -Builder acknowledges to and for the benefit of the Applicant ("Purchaser') and the Texas Water Development Board ("TWDB ') that it understands the goods and services under this Agreement are beingfunded with monies made available by the Water Development Fund, Rural Water Assistance Fund, Economically Distressed Areas, State Participation Fund and/or Agricultural Water Conservation Fund. That these funds have ,statutory requirements commonly known as "United States Iron and Steel " that requires all of the iron and steel products used in the project to be produced in the United States ("United States Iron and Steel Requirement') including iron and steel products provided by the Contactor pursuant to this Agreement. The Design -Builder hereby represents and warrants to and for the benefit of the Purchaser and the TWDB that (a) the Design -Builder has reviewed and understands the United States Iron and Steel Requirement, (b) all of the iron and .steel products used in the project will be and/or have been produced in the United States in a manner that complies with the United States Iron and Steel Requirement, unless a waiver of the requirement is approved, and (c) the Design -Builder will provide any farther verified information, certification or assurance of compliance with this paragraph, or information necessar1, to support a waiver of the United States Iron and Steel Requirement, as may be requested by the Purchaser or the TWDB. Notwithstanding ally other provision of this Agreement, any failure to comply with this paragraph by the Design - Builder shall permit the Purchaser to enforce this Agreement and recover as damages against the Design -Builder any loss, expense, or cost (including without limitation attorney's fees) incurred by the Purchaser restulting from any such failure (including without limitation any impairment or loss offu nding, whether in whole or in part, from the TWDB or any damages owed to the TWDB by the Purchaser). Neither this paragraph (nor any other provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior- written consent of the TWDB. In the execution of the Contract, the Design -Builder shall be familiar with and at all times shall observe and comply with all applicable federal, state, and local laws, ordinances and regulations concerned with the use of iron and steel made in the United States which in any manner affect the conduct of the work, and shall indemnify and save harmless the Texas Water Development Board against any claim arising from violation of any such law, ordinance or regulation by the Design -Builder or by their subcontractor or their employees. Additional information on the United States Iron and Steel (US I&S) and its applicability to this contract can be found in the TWDB-11005 guidance. It is recommended the Owner receive and maintain files documenting the Design - Builder's use of US I&S. Compliance with US I&S will be verified by the Owner through the submittal of the TWDB form TWDB-1105-A. TW DB-0552 Rev 11/18 10, Prevailing Wage hates This contract is subject to Government Code Chapter 2258 concerning payment of Prevailing Wage Rates. The Owner will determine what the general prevailing rates are in accordance with the statute. The applicable provisions include, but are not limited to the following: §2258.021. Right to be Paid Prevailing Wage Rates (a) A worker employed on a public work by or on behalf of the state or a political subdivision of the state shall be paid: (1) not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed; and (2) not less than the general prevailing rate of per diem wages for legal holiday and overtime work. (b) Subsection (a) does not apply to maintenance work. (c) A worker is employed on a public work for the purposes of this section if the worker is employed by a Design -Builder or Subcontractor in the execution of a contract for the public work with the state, a political subdivision of the state, or any officer or public body of the state or a political subdivision of the state. §2258.023. Prevailing Wage Rates to be Paid by Design -Builder and Subcontractor; Penalty (a) The Design -Builder who is awarded a contract by a public body or a Subcontractor of the Design -Builder shall pay not less than the rates determined under Section 2258.022 to a worker employed by it in the execution of the contract. (b) A Design -Builder or Subcontractor who violates this section shall pay to the state or a political subdivision of the state on whose behalf the contract is made, $60 for each worker employed for each calendar day or part of the day that the worker is paid less than the wage rates stipulated in the contract. A public body awarding a contract shall specify this penalty in the contract. (c) A Design -Builder or Subcontractor does not violate this section if a public body awarding a contract does not determine the prevailing wage rates and specify the rates in the contract as provided by Section 2258.022. (d) The public body shall use any money collected under this section to offset the costs incurred in the administration of this chapter. (e) A municipality is entitled to collect a penalty under this section only if the municipality has a population of more than 10,000. §2258.024. Records (a) A Design -Builder and Subcontractor shall keep a record showing: (1) the name and occupation of each worker employed by the Design -Builder or Subcontractor in the construction of the public work; and (2) the actual per diem wages paid to each worker. TWDB-OS52 Rev11/18 (b) The record shall be open at all reasonable hours to inspection by the officers and agents of the public body. §2258. 025. Payment Greater Than Prevailing Rate Not Prohibited This chapter does not prohibit the payment to a worker employed on a public work an amount greater than the general prevailing rate of per diem wages. 11. Payments (a) Progress Payments: (1) The Design -Builder shall prepare their requisition for progress payment as of the last day of the month and submit it, with the required number of copies, to the Owner and Owner's Advisor for review. Except as provided in paragraph (3) of this subsection, the amount of the payment due the Design -Builder shall be determined in accordance with the Contract and deducting: (1) five percent (50o) minimum of the total amount, as a retainage and (2) the amount of all previous payments. The total value of work completed to date shall be based on the actual or estimated quantities of work completed and on the unit prices contained in the agreement (or cost breakdown approved pursuant to section 7b relating to lump sum bids) and adjusted by approved change orders. The value of materials properly stored on the site shall be based upon the estimated quantities of such materials and the invoice prices. Copies of all invoices shall be available for inspection by the Owner's Advisor. (2) The Design -Builder shall be responsible for the care and protection of all materials and work upon which payments have been made until final acceptance of such work and materials by the Owner. Such payments shall not constitute a waiver of the right of the Owner to require the fulfillment of all terms of the Contract and the delivery of all improvements embraced in this contract complete and satisfactory to the Owner in all details. (3) This clause applies to contracts when the Owner is a District or Authority. The retainage shall be ten percent of the amount otherwise due until at least fifty percent of the work has been completed. After the project is fifty percent completed, and if the District or Authority's Board finds that satisfactory progress is being made, then the District may authorize any of the remaining progress payments to be made in full. The District is not obligated to pay interest earned on the first 501 o of work completed (Texas Water Code Sec. 49.276(d)). (4) The five percent (5"0) retainage of the progress payments due to the Design - Builder may not be reduced until the building of the project is substantially complete and a reduction in the retainage has been authorized by the TWDB. (b) Withholding Payments. The Owner may withhold from any payment otherwise due the Design -Builder so much as may be necessary to protect the Owner and if so elects may also withhold any amounts due from the Design -Builder to any Subcontractors or material dealers, for work performed or material furnished by them. The foregoing provisions shall be construed solely for the benefit of the Owner and will not require the Owner to TWDB-0552 Rev 11/18 determine or adjust any claims or disputes between the Design -Builder and their Subcontractors or Material dealers, or to withhold any monies for their protection unless the Owner elects to do so. The failure or refusal of the Owner to withhold any monies from the Design -Builder shall in no way impair the obligations of any surety or sureties under any bond or bonds furnished under this contract. (c) Payments Subject to Submission of Certificates. Each payment to the Design -Builder by the Owner shall be made subject to submission by the Design -Builder of all written certifications required of the Design -Builder, their Subcontractors and other general and special conditions elsewhere in thiscontract. (d) Final Payment. (1) Upon satisfactory completion of the work performed under this contract, as a condition before final payment under this contract or as a termination settlement under this contract the Design -Builder shall execute and deliver to the Owner a release of all claims against the Owner arising under, or by virtue of, this contract, except claims which are specifically exempted by the Design -Builder to be set forth therein. Unless otherwise provided in this contract, by state law or otherwise expressly agreed to by the parties to this contract, final payment under this contract or settlement upon termination of this contract shall not constitute a waiver of the Owner' s claims against the Design -Builder or their sureties under this contract or applicable performance and payment bonds. (2) After final inspection and acceptance by the Owner of all work under the Contract, the Design -Builder shall prepare their requisition for final payment which shall be based upon the carefully measured or computed quantity of each item of work at the applicable unit prices stipulated in the Agreement or cost breakdown (if lump sum), as adjusted by approved change orders. The total amount of the final payment due to the Design -Builder under this contract shall be the amount computed as described above less all previous payments. (3) The retainage and its interest earnings, if any, shall not be paid to the Design - Builder until the TWDB has authorized a reduction in, or release of, retainage on the contract work. (4) Withholding of any amount due to the Owner, under general and/or special conditions regarding "Liquidated Damages" shall be deducted from the final payment due the Design -Builder. 12. Archaeological Discoveries and Cultural Resources No activity which may affect properties listed or properties eligible for listing in the National Register of Historic Places or eligible for designation as a State Archeological Landmark is authorized until the Owner has complied with the provisions of the National Historic Preservation Act and the Antiquities Code of Texas. The Owner has previously coordinated with the appropriate agencies and impacts to known cultural or archeological deposits have been avoided or mitigated. However, the Design -Builder may encounter unanticipated cultural or archeological deposits during construction TWDB-0552 Rev 11/18 If archeological sites or historic structures which may qualify for designation as a State Archeological Landmark according to the criteria in 13 TAC Chapter 26, or that may be eligible for listing on the National Register of Historic Places in accordance with 36 CFR Part 800, are discovered after construction operations are begun, the Design -Builder shall immediately cease operations in that particular area and notify the Owner, the TWDB, and the Texas Historical Commission, 1511 N. Colorado St. , P. O. Box 12276, Capitol Station, Austin, Texas 78711-2276. The Design -Builder shall take reasonable steps to protect and preserve the discoveries until they have been inspected by the Owner's representative and the TWDB. The Owner will promptly coordinate with the State Historic Preservation Officer and any other appropriate agencies to obtain any necessary approvals or permits to enable the work to continue. The Design -Builder shall not resume work in the area of the discovery until authorized to do so by the Owner. 13. Endangered Species No activity is authorized that is likely to jeopardize the continued existence of a threatened or endangered species as listed or proposed for listing under the Federal Endangered Species Act (ESA), and/or the State of Texas Parks and Wildlife Code on Endangered Species, orto destroy or adversely modify the habitat of such species. If a threatened or endangered species is encountered during construction, the Design -Builder shall immediately cease work in the area of the encounter and notify the Owner, who will immediately implement actions in accordance with the ESA and applicable State statutes. These actions shall include reporting the encounter to the TWDB, the U.S. Fish and Wildlife Service, and the Texas Parks and Wildlife Department, obtaining any necessary approvals or permits to enable the work to continue, or implement other mitigation actions. The Design - Builder shall not resume construction in the area of the encounter until authorized to do so by the Owner. 14. Hazardous Materials Materials utilized in the project shall be free of any hazardous materials, except as may be specifically provided for in the specifications. If the Design -Builder encounters existing material on sites owned or controlled by the Owner or in material sources that are suspected by visual observation or smell to contain hazardous materials, the Design -Builder shall immediately notify the Owner's Advisor and the Owner. The Owner will be responsible for the testing and removal or disposal of hazardous materials on sites owned or controlled by the Owner. The Owner may suspend the work, wholly or in part during the testing, removal or disposal of hazardous materials on sites owned or controlled by the Owner. 15. Changes *Provisions identified with an asterisk below are consistent with Local Government Code 271.60. Counties and Municipalities may modify the identified provisions, when applicable, to conform to Local Government Code 262.031 (Counties) or 252.048 (Municipalities). (a) The Owner may at any time, without notice to any surety, by written order designated or indicated to be a change order, make changes in the work within the general scope of the TWDB-OSS2 Rev 11/18 contract, including but not limited to changes: (1) In the specifications (including drawings and designs); (2) In the time, method or manner of performance of the work; (3) To decrease or increase the quantity of work to be performed or materials, equipment or supplies to be furnished; (b) The total price of a contract may not be increased by a change order unless provision has been made for the payment of the added cost by the appropriation of current funds or bond funds for that purpose, by the authorization of the issuance of certificates, or by a combination of those procedures. (c) 'A contract with an original contract price of $1 million or more may not be increased by more than 25 percent. If a change order for a contract, with an original contract price of less than $1 million, increases the contract amount to $1 million or more, subsequent change orders may not increase the revised contract amount by more than 25 percent. (d) `A governing body may grant authority to an official or employee responsible for purchasing or for administering a contract to approve a change order that involves an increase or decrease of $50,000 or less. (e) Changes that involve an increase in price will be supported by documentation of the cost components. For projects funded through the EDAP program, or with grant proceeds, TWDB staff may request this information to be provided in a format equivalent to the Cost and Pricing Information form (No. WRD-277). (f) Any change orders involving a change in the project requiring a relocation of project components, sizing, or process may require additional environmental approval. A map and description of the proposed changes should be sent to the TWDB Environmental Reviewer for coordination and approval as soon as possible to avoid any delay. Ib. Operation and Maintenance Manuals and Training (a) The Design -Builder shall obtain installation, operation, and maintenance manuals from manufacturers and suppliers for equipment furnished under the contract. The Design - Builder shall submit three copies of each complete manual to the Owner's Advisor within 90 days after approval of shop drawings, product data, and samples, and not later than the date of shipment of each item of equipment to the project site or storage location. (b) Tile Owner shall require the Owner's Advisor to promptly review each manual submitted, noting necessary corrections and revisions. If the Owner's Advisor rejects the manual, the Design -Builder shall correct and resubmit the manual until it is acceptable to the Owner's Advisor as being in conformance with the design concept of the project and for compliance with information given in the contract documents. Owner may assess Design - Builder a charge for reviews of same items in excess of three (3) times. Such procedure shall not be considered cause for delay. (c) Acceptance of manuals by Owner's Advisor does not relieve Design -Builder of any requirements of terms of Contract. TW DB-0552 Rev 11/18 (d) The Design -Builder shall provide the services of trained, qualified technicians to check final equipment installation, to assist as required in placing same in operation, and to instruct operating personnel in the proper manner of performing routine operation and maintenance of the equipment. (e) Operations and maintenance manuals specified hereinafter are in addition to any operation, maintenance, or installation instructions required by the Design -Builder to install, test, and start-up the equipment. (fl Each manual is to be bound in a folder and labeled to identify the contents and project to which it applies. The manual shall contain the following applicable items: (1) A listing of the manufacturer's identification, including order number, model, serial number, and location of parts and service centers. (2) A list of recommended stock of parts, including part number and quantity. (3) Complete replacement parts list. (4) Performance data and rating tables. (5) Specific instructions for installation, operation, adjustment, and maintenance. (6) Exploded view drawings for major equipment items. (7) Lubrication requirements. (8) Complete equipment wiring diagrams and control schematics with terminal identification. 17. As -built Dimensions and Drawings (a) Design -Builder shall make appropriate daily measurements of facilities constructed and keep accurate records of location (horizontal and vertical) of all facilities. (b) Upon completion of each facility, the Design -Builder shall furnish the Owner with one setof direct prints, marked with red pencil, to show as -built dimensions and locations of all work constructed. As a minimum, the final drawings shall include the following: (1) Horizontal and vertical locations of work. (2) Changes in equipment and dimensions due to substitutions. (3) "Nameplate" data on all installed equipment. (4) Deletions, additions, and changes to scope of work. (5) Any other changes made. 18. Close -Out Procedures To close-out the contract and release final retainage, the following steps must be completed: (a) TWDB Staff must conduct a construction contract final inspection (CCFI). (b) The following submittals must be received, reviewed, and accepted by TWDB: (1) The final change order, adjustment of quantities, or a statement that all change orders have previously been submitted and there will be no more change orders; (2) The final pay request from the Design -Builder; (3) An affidavit by the Design -Builder that all bills have been paid; (4) Certification by the consulting Owner's Advisor that the work has been completed and was constructed in accordance with the approved plans and specifications and sound engineering principles and construction practices; TWDB-0552 Rev 11/18 (5) Acceptance of the project by the Owner in the form of a written resolution or other formal action; (6) Notification of the beginning date of the warranty period for the contract; and (7) Confirmation that the Owner has received as -built drawings from the Design - Builder. (8) Certificate of Compliance with U.S. Iron and Steel Requirements (TWDB- 1105A) (c) TWDB will issue a Certificate of Approval allowing the release ofretainage.