Substation Precast Concrete Fencing - REV-5963-Award/Ordinance/Pricing
Docusign City Council Transmittal Coversheet
File Name
Purchasing Contact
City Council Target Date
Granicus #
Ordinance #
Substation Precast Concrete Fencing - REV
4/5/16
Karen Smith
RFP 5963
Contract 5963
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND WALSH’S HAWK CONSTRUCTION COMPANY, LLC
(RFP 5963)
THIS CONTRACT is made and entered into this day __________________________,
by and between Walsh’s Hawk Construction Company, LLC a limited liability corporation,
whose address is 5002 Highway 380, Princeton, TX 75407, hereinafter referred to as
"Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home-
Rule City, hereinafter referred to as "City," to be effective upon approval of the Denton City
Council and the subsequent execution of this Contract by the Denton City Manager or his duly
authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Contractor shall provide construction services in accordance with the City’s RFP # 5963
Substation Precast Security Fence Construction Services, a copy of which is on file at the office
of Purchasing Agent and incorporated herein for all purposes as “Exhibit C”. The Contract
consists of this written agreement and the following items which are attached hereto and
incorporated herein by reference:
(a) Special Terms and Conditions (Exhibit “A”);
(b) Individual Project Initiation Process (Exhibit "B");
(c) City of Denton Request for Proposal # 5963 (Exhibit “C”)
(d) City of Denton Standard Terms and Conditions (Exhibit “D”);
(e) Insurance Requirements (Exhibit “E”);
(f) Certificate of Interested Parties Electronic Filing (Exhibit "F");
(g) Contractor’s Proposal. (Exhibit "G");
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to this written Contract, and then to the contract documents in the sequential
order in which they are listed above. These documents shall be referred to collectively as
“Contract Documents.”
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
June 14, 2016
Contract 5963
“CONTRACTOR”
________________________
By:
AUTHORIZED SIGNATURE
TYPED NAME:
TITLE:
PHONE NUMBER
E-MAIL ADDRESS
___________________________________
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: _________________________
GEORGE C. CAMPBELL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: _________________________________
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By: _________________________________
President
2016-11800
pat@hawkconst.com
9725476652
Walsh's Hawk Construction
Pat Walsh
Contract 5963
EXHIBIT A
SPECIAL TERMS AND CONDITIONS
Total Contract Amount
The contact total for services shall not exceed $6,200,000. Pricing shall be per Exhibit G
attached.
Contract Term
The contract term shall be for a one (1) year from the date of award. The City and the Awarded
Contractor shall have the option to renew this contract for an additional two (2) one-year periods.
The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date in accordance with the Exhibit B. At the
sole option of the City of Denton, the Contract may be further extended as needed, not to exceed
a total of six (6) months.
Price Adjustments
Prices shall increase 3% annually at the renewal date.
Scope Modification
The scope as defined in the RFP 5963 (Exhibit C) shall be modified or clarified to include:
In the event that ground water is encountered during pier drilling, dewatering and
caissons may be required. These are excluded from the contract pricing and will be
negotiated on a case by case basis dependent on the extent of the required services.
Hydro-vacuum excavation by others if needed, compaction by others to 95%
Gates to be manufacture red and installed by others.
Temporary fencing to be installed and removed by others.
DME to locate and expose any underground utilities.
Contract 5963
Exhibit B
Individual Project Initiation Process
Construction of Substation Precast Security Fences
This section establishes the process whereby individual construction projects will be initiated. It
is a general outline of the steps to be taken in setting project construction schedules and
establishing project prices. The steps are generally in order of occurrence; however, nothing
herein precludes the parties from agreeing to an amended approach for any given project.
1. The starting point for the process shall be when the project plans are delivered to the
contractor by DME with indication of a preferred start date. The preferred start date shall not be
less than 30 calendar days from the date the plans are delivered to the contractor. Longer
planning periods are permissible. Project plans shall include a list of owner furnished material
and projected dates of availability and a status of the site preparation. DME and the contractor
will coordinate, to the extent feasible, in the development phases of projects to better facilitate
planning for both parties. Benefits could be realized in long range budget forecasting, better
project timing, constructability planning, and in coordinating and optimizing contractor resources
and availability.
2. The contractor shall acknowledge receipt of the plans, indicate acceptance of the planned start
date or propose an alternate start date, and shall propose a preconstruction conference to discuss
the project. The preconstruction conference shall be scheduled not less than 14 calendar days
before the preferred start date.
3. At the preconstruction conference, the following actions are expected:
a. The contractor shall provide:
1) A formal estimate of the cost based on the contract unit costs in force at the time of the
notice based on the units shown on the project plans
2) A proposed time to be allowed for construction at the preconstruction conference
3) A project plan for the construction
4) A list of classification and quantity of expected personnel that will be assigned to the
project
5) A list of the type and quantity of expected equipment that will be assigned to the
project
6) Indicate a date when bonds may be expected to be received by Purchasing if the
project is over $50,000
7) Raise any issues of concern
b. DME shall provide:
1) Revised project plans, if any
2) A description of the project and constraints and answer questions
3) An updated list of owner furnished materials and projected dates of availability if there
have been any changes from the initial list
4) An estimate of cost based on the units shown on the plans
5) An update to the status of site preparation if there have been any changes
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6) Raise any issues of concern
c. Jointly, both parties shall (some items may require additional time after the
preconstruction conference for resolution. Resolution must be achieved before the
purchase order can be issued):
1) Review the project plan
2) Attempt to arrive at a final cost estimate
3) Establish a formal project start for mobilization
4) Establish a formal project time for construction
5) Attempt to resolve concerns on all issues or agree on a process and time for resolving
issues
3. After a formal start date and pricing are established:
a. DME will enter the requisition for the purchase order based on the agreed pricing.
b. The contractor shall provide bonds equal to 100% of the project estimate to Purchasing at
901B Texas Street, Denton TX 76209.
c. Purchasing shall acknowledge receipt of bonds via email to the contractor and DME.
d. Purchasing shall issue the purchase order with 5% retainage which shall serve as the
official notice to proceed.
Contract 5963
EXHIBIT D
City of Denton’s Standard Terms and Conditions
Invoices, Payments, and Releases
1. INVOICES AND PAYMENT PROCESSING:
Payment processing: The City review, inspection, and processing procedures for invoices
ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals
which call for payment before thirty (30) days from receipt of invoice, or cash discounts
given on such payment, will be considered only if, in the opinion of the Purchasing Manager,
the review, inspection, and processing procedures can be completed as specified. It is the
intention of the City of Denton to make payment within thirty days after receipt of valid
invoices for which items or services have been received unless unusual circumstances arise.
The 30 day processing period for invoices will begin on the date the invoice is received or
the date the items or services are received, whichever is later.
Direct deposit for payments: Contractors are encouraged to arrange for receiving payments
through direct deposit. Information regarding direct deposit payments is available from the
City of Denton Purchasing website: www.dentonpurchasing.com.
Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable
Department, 215 E McKinney St, Denton, TX, 76201-4299 with a copy to the attention of
Chris Lutrick, City of Denton Electric Department, 1701C Spencer Road, Denton, TX
76209. The copy may also be emailed to Mr. Lutrick at chris.lutrick@cityofdenton.com.
Invoices must be fully documented as to labor, materials, and equipment provided, if
applicable, and must reference the City of Denton Purchase Order Number in order to
be processed. No payments shall be made on invoices not listing a Purchase Order
Number. Invoices for partial payments on construction projects should normally be
presented for payment within the first five days of the month, and submitted on the Pay
Application Form.
2. TAX EXEMPTION:
The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article
20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing
work under this contract for the City of Denton may purchase materials and supplies and rent
or lease equipment sales tax free. This is accomplished by issuing exemption certificates to
suppliers. Certificates must comply with State Comptroller’s ruling #95-0.07 and #95-0.09.
3. PAYMENTS TO CONTRACTORS:
A. Upon presentation of valid invoices, which should be within the first week of each
month, the Owner shall make partial payments to the Contractor for construction
accomplished during the preceding calendar month on the basis of completed
construction certified to by the Contractor and approved by the Owner and
Architect/Engineer solely for the purposes of payment: Provided, however, that such
approval shall not be deemed approval of the workmanship or materials. Only ninety-
five percent (95%) of each payment request approved during the construction of the
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project shall be paid by the Owner to the Contractor prior to completion of the project.
Upon the approval by the Owner of the Contractor’s "Final Invoice for Payment”
showing the total cost of the construction performed, the Owner shall make payment to
the Contractor of all amounts to which the Contractor shall be entitled there under which
shall not have been paid: Provided, however, that such final payment shall be made not
later than ninety (90) days after the date of completion of construction of the project, as
specified in the Final Invoice for Payment, unless withheld because of the fault of the
Contractor.
B. The Contractor shall be paid on the basis of the percentage of the work actually
completed for each construction item. The total amount paid for periodic billings shall
not exceed the maximum contract price for the construction of the project as set forth in
the contract, unless such excess shall have been approved in writing by the Purchasing
Agent as part of a change order.
C. No payment shall be due while the Contractor is in default in respect of any of the
provisions of this contract, and the Owner may withhold from the Contractor the amount
of any claim by any third party against either the Contractor or the Owner based upon an
alleged failure of the Contractor to perform the work hereunder in accordance with the
provisions of this contract. This includes alleged failure of the Contractor to make
payments to subcontractors.
4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR:
Upon award of the contract, the Contractor shall inform the Owner of the subcontractors and
material sources that will be used. Upon the completion by the Contractor of the
construction of the project, but prior to final payment to the Contractor, the Contractor shall
deliver to the Owner releases of all liens, and of rights to claim any lien, from all
manufacturers, material-men, and subcontractors furnishing services or materials for the
project, to the effect that all materials or services used on or for the project have been paid
for and indicating that the Owner is released from all such claims.
5. PAYMENTS TO MATERIAL-MEN AND SUBCONTRACTORS:
The Contractor shall pay each material-men, and each subcontractor, if any, not later than
five (5) days after receipt of any payment from the Owner, the amount thereof allowed the
Contractor for and on account of materials furnished or construction performed by each
material-men or each subcontractor.
6. REMEDIES:
A. Completion of Contractor’s Default
If default shall be made by the Contractor or by any subcontractor in the performance of
any of the terms of this proposal, the Owner, without in any manner limiting its legal and
equitable remedies in the circumstances, may serve upon the Contractor and the Surety or
Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to
cause such default to be corrected forthwith. Unless within twenty (20) days after the
service of such notice upon the Contractor such default shall be corrected or
arrangements for the correction thereof satisfactory to the Owner and/or Engineer shall be
made by the Contractor or its Surety or Sureties, the Owner may take over the
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construction of the project and prosecute the same to completion by contract or otherwise
for the account and at the expense of the Contractor, and the Contractor and its Surety or
Sureties shall be liable to the Owner for any cost or expense in excess of the contract
price occasioned thereby. In such event the Owner may take possession of and utilize, in
completing the construction of the project, any materials, tools, supplies, equipment,
appliances, and plant belonging to the Contractor or any of its subcontractors, which may
be situated at the site of the project. The Owner in such contingency may exercise any
rights, claims or demands which the Contractor may have against third persons in
connection with this contract and for such purpose the Contractor does hereby assign,
transfer and set over unto the Owner all such rights claims and demands.
B. Liquidated Damages
The time of the completion of construction of the project is of the essence of the
contract. Should the Contractor neglect, refuse or fail to complete the construction within
the time herein agreed upon, after giving effect to extensions of time, if any, herein
provided, then, in that event and in view of the difficulty of estimating with exactness
damages caused by such delay, the Owner shall have the right to deduct from and retain
out of such money which may be then due or which may become due and payable to the
Contractor the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) per
day for each and every day, including weekends, that such construction is delayed on its
completion beyond the specified time, as liquidated damages and not as a penalty; if the
amount due and to become due from the Owner to the Contractor is insufficient to pay in
full any such liquidated damages, the Contractor shall pay to the Owner the amount
necessary to effect such payment in full: Provided, however, that the Owner shall
promptly notify the Contractor in writing of the manner in which the amount retained,
deducted or claimed as liquidated damages was computed.
C. Cumulative Remedies
Every right or remedy herein conferred upon or reserved to the Owner shall be
cumulative, shall be in addition to every right and remedy now or hereafter existing at
law or in equity or by statute, and the pursuit of any right or remedy shall not be
construed as an election. Provided, however, that the provisions of the REMEDIES
SECTION shall be the exclusive measure of damages for failure by the Contractor to
complete the construction of the project within the time herein agreed upon.
Contract 5963
CITY OF DENTON GENERAL CONDITIONS FOR CONSTRUCTION
ARTICLE 1 GENERAL PROVISIONS
GENERAL DEFINITIONS
1.1 The following definitions apply throughout these General Conditions and to the other
Contract Documents:
a) THE CONTRACT DOCUMENTS
The Contract Documents consist of the formal Building Construction Services
Agreement between the Owner and the Contractor, these General Conditions and other
supplementary conditions included by special provisions or addenda, drawings,
specifications, addenda issued prior to execution of the Contract, other documents listed
in the Contract, and Amendments issued after execution of the Contract. For purposes of
these General Conditions, an Amendment is:
(1) a written Supplemental Agreement to the Contract signed by authorized
representatives of both parties;
(2) a Change Order, including Change Orders signed only by the Owner as described in
Subparagraph 7.1(b) and Subparagraph 7.1(e); or
(3) a written order for a minor change in the Work issued by the Architect/Engineer as
described in Paragraph 7.3.
The Contract Documents also include bid documents such as the Owner’s Instructions to
Bidders, sample forms, the Contractor's Bid Proposal and portions of addenda relating to
any of these documents, and any other documents, exhibits or attachments specifically
enumerated in the Building Construction Services Agreement, but specifically exclude
geotechnical and subsurface reports that the Owner may have provided to the Contractor.
b) THE CONTRACT
The Contract Documents, as defined in Paragraph 1.1, are expressly incorporated into
and made a part of the formal Building Construction Services Agreement between the
Owner and the Contractor by reference in this Paragraph and Paragraph 1.1 (which
documents are sometimes also referred to collectively in these General Conditions as the
“Contract”). The Contract Documents represent the entire and integrated agreement
between the Owner and the Contractor and supersede all prior negotiations,
representations or agreements, either written or oral. The terms and conditions of the
Contract Documents may be changed only by an Amendment. The Contract Documents
shall not be construed to create a contractual relationship of any kind:
(1) between the Architect/Engineer and Contractor;
(2) between the Owner and a Subcontractor or Sub-subcontractor; or
(3) between any persons or entities other than the Owner and Contractor.
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The Architect/Engineer shall, however, be entitled to performance and enforcement of
obligations under the Contract Documents intended to facilitate performance of the
Architect/Engineer’s duties.
c) THE WORK
The term “Work” means the construction and services required by the Contract
Documents, whether completed or partially completed, and includes all labor, materials,
equipment, and services provided or to be provided by the Contractor, or any
Subcontractors, Sub-subcontractors, material suppliers, or any other entity for whom the
Contractor is responsible, to fulfill the Contractor’s obligations. The Work may constitute
the whole or a part of the Project.
d) THE PROJECT
The Project is the total construction more particularly described in the Building
Construction Services Agreement, of which the Work performed under the Contract
Documents may be the whole or a part of the Project and which may include construction
by the Owner or by separate contractors. All references in these General Conditions to or
concerning the Work or the site of the Work will use the term “Project,” notwithstanding
that the Work may only be a part of the Project.
e) THE DRAWINGS
The Drawings (also known as the “Plans”) are the graphic and pictorial portions of the
Contract Documents, wherever located and whenever issued, showing the design,
location and dimensions of the Work, generally including plans, elevations, sections,
details, schedules, and diagrams.
f) THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written
requirements for materials, equipment, construction systems, standards, and
workmanship for the Work, performance of related services, and other technical
requirements.
g) THE PROJECT MANUAL
The Project Manual is the volume or volumes which contain the bidding requirements,
sample forms, General Conditions for Building Construction, special provisions, and
Specifications. The Project Manual may be modified by written addendums issued by the
Owner during bidding, in which case the written addendums become a part of the Project
Manual upon their issuance, unless otherwise indicated by the Owner in writing.
h) ALTERNATE
An Alternate is a variation in the work on which the Owner requires a price separate from
the City Building General Conditions Base Bid. If an Alternate is accepted by the Owner,
the variation will become a part of the Contract through the execution of a change order
or amendment to the Contract and the Base Bid will be adjusted to include the amount
quoted. If an alternate is accepted by the Owner, and later deleted prior to any Work
under the alternate being performed or materials delivered to the Project site, the Owner
will be entitled to a credit in the full value of the alternate as priced in the Contractor’s
Bid.
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i) BASE BID
The Base Bid is the price quoted for the work before alternates are considered.
j) HAZARDOUS SUBSTANCE
The term Hazardous Substance is defined to include the following:
(1) any asbestos or any material which contains any hydrated mineral silicate, including
chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable
or non-friable;
(2) any polychlorinated biphenyls (“PCBs”), or PCB-containing materials, or fluids;
(3) radon;
(4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or
solid, liquid or gaseous waste;
(5) any pollutant or contaminant (including but not limited to petroleum, petroleum
hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas
exploration or production waste, any natural gas, synthetic gas or any mixture thereof,
lead, or other toxic metals) which in its condition, concentration or area of release
could have a significant effect on human health, the environment, or natural
resources;
(6) any substance that, whether by its nature or its use, is subject to regulation or requires
environmental investigation, monitoring, or remediation under any federal, state, or
local environmental laws, rules, or regulations;
(7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I)
(including those defined by Section 9001(1) of the 1984 Hazardous and Solid Waste
Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the
Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or
partially filled with any substance; and
(8) any other hazardous material, hazardous waste, hazardous substance, solid waste,
and toxic substance as those or similar terms are defined under any federal, state, or
local environmental laws, rules, or regulations.
k) OTHER DEFINITIONS
As used in the Contract Documents, the following additional terms have the following
meanings:
(1) “provide” means to furnish, install, fabricate, deliver and erect, including all services,
materials, appurtenances and other expenses to complete in place, ready for operation
or use;
(2) “shall” means the action of the party to which reference is being made is mandatory;
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(3) “as required” means as prescribed in the Contract Documents; and
(4) “as necessary” means all action essential or needed to complete the work in
accordance with the Contract Documents and applicable laws, ordinances,
construction codes, and regulations.
1.2 EXECUTION, CORRELATION AND INTENT
(a) The Building Construction Services Agreement shall be signed by duly authorized
representatives of the Owner and Contractor as provided in the Agreement.
(b) Execution of the Building Construction Services Agreement by the Contractor is a
representation that the Contractor has visited the site, become familiar with local
conditions, including but not limited to subsurface conditions, under which the Work is to
be performed and correlated personal observations with requirements of the Contract
Documents.
(c) The intent of the Contract Documents is to include all items necessary for the proper
execution and completion of the Work by the Contractor. The Contract Documents are
complementary, and what is required by one shall be as binding as if required by all;
performance by the Contractor shall be required only to the extent consistent with the
Contract Documents and reasonably inferable from them as being necessary to produce
the intended results.
(d) Organization of the Specifications into divisions, sections, and articles, and arrangement
of Drawings shall not control the Contractor in dividing the Work among Subcontractors
or in establishing the extent of Work to be performed by any trade.
(e) Unless otherwise stated in the Contract Documents, words which have well-known
technical or construction industry meanings are used in the Contract Documents in
accordance with such recognized meanings.
(f) The Drawings and Specifications are intended to agree with one another, and Work called
for by Drawings and not mentioned in Specifications, or vice versa, shall be furnished as
if set forth by both. Specifications shall govern materials, methods and quality of work.
In the event of a conflict on the Drawings between scale and dimension, figured
dimensions shall govern over scale dimensions and large scale drawings shall govern
over small scale drawings. Conflict between two or more dimensions applying to a
common point shall be referred to the Architect/Engineer/Engineer for final adjustment.
If discrepancies or conflicts occur within or between the Drawings and Specifications
regarding the Work, or within or between other Contract Documents, the Contractor shall
not perform such Work without having obtained a clarification from the
Architect/Engineer and resolution by the Owner. The Owner's decision as to the
appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings or
the Specifications disagree within themselves or with each other; the Base Bid will be
based on the most expensive combination of quality and quantity of Work indicated.
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(g) Deviations from Contract Documents shall be made only after written approval is
obtained from Architect/Engineer and Owner, as provided in Article 7.
(h) The intention of the Contract Documents is to include all materials, labor, tools,
equipment, utilities, appliances, accessories, services, transportation, and supervision
required to completely perform the fabrication, erection and execution of the Work in
its final position.
(i) The most recently issued Drawing or Specification takes precedence over previous
issues of the same Drawing or Specification. In the event of a conflict, the order of
precedence of interpretation of the Contract Documents is as follows:
(1) Amendments (see Paragraph 7.2 for order of precedence between Amendments);
(2) the Building Construction Services Agreement;
(3) addenda, with those addenda of later date having precedence over those of an
earlier date;
(4) the Supplementary General Conditions and Special Provisions, if any;
(5) the General Conditions for Building Construction;
(6) the Specifications and Drawings.
1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER’S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and
shall remain the property of the Owner and are, with the exception of the Contract set for
each party, to be returned to the Owner upon request at the completion of the Work.
1.4 CAPITALIZATION
Terms capitalized in these General Conditions include those which are:
(1) specifically defined in these General Conditions (except the terms defined in
Subparagraph 1.1(j), which terms are of common grammatical usage and are not
normally capitalized);
(2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs,
and Clauses;
(3) the titles of other documents published or used by the Owner as manuals or official
policy statements; or
(4) proper nouns or other words required under standard grammatical rules to be capitalized.
ARTICLE 2 THE OWNER
2.1 DEFINITION OF OWNER
The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in
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the Building Construction Services Agreement, and is referred to throughout the Contract
Documents as if singular in number. The term “Owner” means the Owner or the Owner’s
authorized representatives.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
(a) The Owner shall furnish the most recent survey describing the physical characteristics,
legal limits, utility locations, and a permanent benchmark for the site of the Project. The
Owner shall also furnish any environmental site assessments that may have been given to
the Owner or conducted for the property upon which the Project is to be constructed.
THIS INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER
TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE.
BY FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT,
WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART,
IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER
SHALL HAVE NO LIABILITY FOR THIS MATERIAL.
(b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner
shall secure and pay for necessary approvals, easements, assessments, and charges
required for construction, use, or occupancy of permanent structures or for permanent
changes in existing facilities.
(c) Information or services under the Owner’s control shall be furnished by the Owner with
reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent
upon the Contractor to identify, establish, and maintain a current schedule of latest dates
for submittal and approval, as required in Paragraph 3.10, including when such
information or services must be delivered. If Owner delivers the information or services
to the Contractor as scheduled and Contractor is not prepared to accept or act on such
information or services, then Contractor shall reimburse Owner for all extra costs
incurred of holding, storage, or retention, including redeliveries by the Owner to comply
with the current schedule.
(d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished
electronic copies of the Drawings and Specifications for bid purposes and one hard copy
approved by Building Inspections upon execution of the Contract. Contractor may obtain
additional copies by paying the cost of additional printing or reproduction.
(e) The obligations described above are in addition to other duties and responsibilities of the
Owner enumerated in the Contract Documents and especially those in respect to Article 6
(Construction by Owner or by Separate Contractors), Article 9 (Payments and
Completion), and Article 11 (Insurance and Bonds).
(f) The Owner shall forward all instructions to the Contractor through the
Architect/Engineer, except for the Owner's Notice to Proceed and the Owner’s decision
to carry out Work as described in Paragraph 2.4.
(g) The Owner’s employees, agents, and consultants may be present at the Project site
during performance of the Work to assist the Architect/Engineer in the performance of
the Architect/Engineer’s duties and to verify the Contractor’s record of the number of
workmen employed on the Work, their occupational classification, the time each is
engaged in the Work, the equipment used in the performance of the Work, and for
purpose of verification of Contractor’s Applications for Payment.
2.3 OWNER’S RIGHT TO STOP THE WORK
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If the Contractor fails to correct any portion of the Work which is not in accordance with the
requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails to
carry out all or any part of the Work in accordance with the Contract Documents, the Owner,
by written order, may order the Contractor to stop the Work, or any portion of the Work,
until the cause for the order has been eliminated. The right of the Owner however, to stop the
Work shall not create or imply a duty on the part of the Owner to exercise this right for the
benefit of the Contractor or any other person or entity. The rights of the Owner under this
Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner’s rights under
Paragraph 12.2.
2.4 OWNER’S RIGHT TO CARRY OUT THE WORK
If the Contractor fails or refuses to carry out the Work or perform any of the terms,
covenants, or obligations of the Contract Documents, and fails or refuses to correct any
failure or refusal with diligence and promptness within fourteen (14) days after receipt of
notice from the Owner, the Owner may correct the Contractor’s failure or refusal or cause
such failure or refusal to be corrected, without affecting, superseding, or waiving any other
contractual, legal, or equitable remedies the Owner has, including but not limited to the
Owner’s termination rights under Article 13. In that case, an appropriate Change Order will
be issued deducting the Owner's cost of correction, including Architect/Engineer's
compensation for additional services and expenses made necessary by the failure or refusal
of the Contractor from payments then or thereafter due to the Contractor. The cost of
correction is subject to verification (but not approval) by the Architect/Engineer. If payments
then or thereafter due the Contractor are not sufficient to cover the cost of correction, the
Contractor shall pay the difference to the Owner.
2.5 NOTICE TO PROCEED
After final execution of the Contract and receipt and approval of the required performance
and payment bonds and evidence of required insurance, the Owner will issue a written notice
to proceed with the Work, including the designated Contract Time within which Substantial
Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a
written notice to proceed through no fault of the Contractor, the Contractor shall be entitled
only to an equitable adjustment of the Contract Time, if properly claimed pursuant to the
requirements of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the
Contract Sum whatsoever for this reason.
ARTICLE 3 THE CONTRACTOR
3.1 DEFINITION OF CONTRACTOR
The Contractor is the person or business entity identified as such in the Building
Construction Services Agreement, and is referred to throughout the Contract Documents as if
singular in number. The term “Contractor” means the Contractor or the Contractor’s
authorized employees or representatives.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
CONTRACTOR
(a) The Contractor shall carefully check, study, and compare the Contract Documents with
each other and shall at once report to the Architect/Engineer in writing any inconsistency,
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ambiguity, error, omission, conflict, or discrepancy the Contractor may discover. The
Contractor shall also verify all dimensions, field measurements, and field conditions
before laying out the Work. The Contractor will be held responsible for any subsequent
error, omission, conflict, or discrepancy which might have been avoided by the above-
described check, study, comparison, and reporting. In the event the Contractor continues
to work on an item where an inconsistency, ambiguity, error, omission, conflict, or
discrepancy exists without obtaining such clarification or resolution or commences an
item of the Work without giving written notice of an error, omission, conflict, or
discrepancy that might have been avoided by the check, study, and comparison required
above, it shall be deemed that the Contractor bid and intended to execute the more
stringent, higher quality, or state of the art requirement, or accepted the condition as is in
the Contract Documents, without any increase to the Contract Sum or Contract Time. The
Contractor shall also be responsible to correct any failure of component parts to
coordinate or fit properly into final position as a result of Contractor's failure to give
notice of and obtain a clarification or resolution of any error, omission, conflict, or
discrepancy, without any right to any increase to the Contract Sum or Contract Time.
(b) The Contractor shall perform the Work in accordance with the Contract Documents and
submittals approved pursuant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
(a) The Contractor shall supervise and direct the Work, using the Contractor’s best skill and
attention. The Contractor shall be solely responsible for and have control over
construction means, methods, techniques, sequences, and procedures and for coordinating
all portions of the Work, unless the Contract Documents set forth specific instructions
concerning these matters.
(b) The Contractor shall be responsible to the Owner for the acts and omissions of the
Contractor’s employees, Subcontractors, Sub-subcontractors, and their respective agents
and employees, and any other persons performing portions of the Work under a
subcontract with the Contractor or with any Subcontractor, and all other persons or
entities for which the Contractor is legally responsible. All labor shall be performed by
mechanics that are trained and skilled in their respective trades. Standards of work
required throughout shall be of a quality that will bring only first class results. Mechanics
whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or
otherwise objectionable shall be dismissed promptly from the Work and immediately
replaced with competent, skilled personnel. Any part of the Work adversely affected by
the acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall
be immediately corrected by the Contractor.
(c) The Contractor shall not be relieved of its obligation to perform the Work in accordance
with the Contract Documents either by activities or duties of the Architect/Engineer in
the Architect/Engineer’s administration of the Contract, or by tests, inspections, or
approvals required or performed by persons other than the Contractor.
(d) The Contractor shall be responsible for inspection of portions of Work already performed
under this Contract to determine that such portions are in proper condition to receive
subsequent Work. The Contractor's responsibility under this paragraph will not in any
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way eliminate the Architect/Engineer's responsibility to the Owner under the
Architect/Engineer/Owner Agreement.
(e) Any Contractor, Subcontractor, Sub-subcontractor, or separate contractor who
commences Work over, in, or under any surface prepared by the Owner or by any other
contractor, subcontractor, sub-subcontractor or separate contractor without the Contractor
having given written notice to the Architect/Engineer of the existence of any faulty
surface or condition in the surface that prevents achieving the quality of workmanship
specified by the Contract Documents and without having obtained the prior approval of
the Architect/Engineer and the Owner to proceed is deemed to have accepted the surface
or condition in the surface as satisfactory at the commencement of such Work. Any
unsatisfactory Work subsequently resulting from such a faulty surface or condition in the
surface that was not pre-approved by the Architect/Engineer or the Owner after notice as
provided above may be rejected and replacement required, without any increase to the
Contract Sum or Contract Time.
(f) All grades, lines, levels, and benchmarks shall be established and maintained on an
ongoing basis by the Contractor. The Contractor is solely responsible for any errors made
in establishing or maintaining proper grades, lines, levels, or benchmarks. Each
Contractor for his own Work shall verify all grades, lines, levels, and dimensions as
indicated on Drawings. He shall report any errors, omissions, conflicts, or inconsistencies
to Architect/Engineer before commencing any Work affected by these conditions.
Contractor shall establish and safeguard benchmarks in at least two widely separated
places and, as Work progresses, establish benchmarks at each level and lay out partitions
on rough floor in exact locations as guides to all trades. The Contractor shall, from the
permanent benchmark provided by the Owner, establish and maintain adequate horizontal
and vertical control.
3.4 LABOR AND MATERIALS
(a) Except as is otherwise specifically provided in the Contract Documents as being the
responsibility of the Owner, the Contractor shall provide and pay for 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.
(b) The Contractor shall enforce strict discipline and good order among the Contractor’s
employees and other persons carrying out the Contract. The Contractor shall not permit
employment of unfit persons or persons not skilled in tasks assigned to them.
(c) The Contractor shall give preference, when qualified labor is available to perform the
Work to which the employment relates, to all labor hired for the Project in the following
order:
(1) to bona fide residents of the City of Denton, Texas;
(2) to bona fide residents of the County of Denton, Texas;
(3) to bona fide residents of the State of Texas;
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(4) to bona fide residents of the United States.
3.5 WARRANTY
(a) General Warranty. The Contractor warrants to the Owner that all Work shall be
accomplished in a good and workmanlike manner and that all materials and equipment
furnished under the Contract will be of good quality, new (unless otherwise specified),
and free from faults or defects, and that the Work will otherwise conform to the Contract
Documents. Work not conforming to these requirements, including substitutions not
properly approved and authorized, will be considered defective or nonconforming. The
Contractor’s warranty excludes any remedy for damage or defect caused by abuse,
modifications not executed by the Contractor, improper or insufficient maintenance,
improper operation, or normal wear and tear under normal usage. If required by the
Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment. The commencement date, duration, and other
conditions related to the scope of this general warranty are established in Subparagraphs
9.9 (a) and 12.2(b) of these General Conditions. THE GENERAL WARRANTY
PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT
LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR
PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH
WARRANTY SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE
MATERIALS AND RE-EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY
THE OWNER TO THE CONTRACTOR WITHIN A PERIOD OF ONE (2) YEAR
AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A LATENT
DEFECT, WITHIN TWO (2) YEARS AFTER DISCOVERY BY THE OWNER OF
THE LATENT DEFECT.
(b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition
precedent to final payment, the terms and conditions of all special warranties required
under the Contract Documents.
3.6 TAXES
The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the
provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner
shall not be liable for, or pay the Contractor's cost of, such sales and use taxes which would
otherwise be payable in connection with the purchase of tangible personal property furnished
and incorporated into the real property being improved under the Contract Documents or the
purchase of materials, supplies and other tangible personal property, other than machinery or
equipment and its accessories and repair and replacement parts, necessary and essential for
performance of the Contract which is to be completely consumed at the job site. The
Contractor shall issue an exemption certificate in lieu of the tax on such purchases.
3.7 PERMITS, FEES AND NOTICES
(a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton
Building Permit. The Contractor and Subcontractors will apply and arrange for the
issuance of all other required permits, and will not be required to pay a fee for any City of
Denton permits required for the Project. The Owner will pay all service extension
charges, including tap fees, assessed by the Water Utilities Department.
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(b) The Contractor shall comply with and give notices required by laws, ordinances, rules,
regulations, and lawful orders of governmental entities or agencies applying to
performance of the Work.
(c) Except as provided in Subparagraph (d) below, it is not the Contractor’s responsibility to
ascertain that the Contract Documents are in accordance with applicable laws,
ordinances, construction codes, and rules and regulations. However, if the Contractor
observes that portions of the Contract Documents are at variance with applicable laws,
ordinances, construction codes, rules or regulations, the Contractor shall promptly notify
the Architect/Engineer and the Owner in writing, and necessary changes shall be
accomplished by appropriate Amendment.
(d) If the Contractor performs Work knowing it to be contrary to laws, ordinances,
construction codes, or rules and regulations without notifying the Architect/Engineer and
the Owner, the Contractor shall assume full responsibility for the Work and shall bear the
attributable costs of the correction of the Work and any other Work in place that may be
adversely affected by the corrective work.
3.8 ALLOWANCES
(a) The Contractor shall include in the Contract Sum all allowances stated in the Contract
Documents. Items covered by allowances shall be supplied for the amounts identified in
the Contract and by persons or entities as the Owner may direct, but the Contractor shall
not be required to employ persons or entities against which the Contractor makes
reasonable objection.
(b) Unless otherwise provided in the Contract Documents:
(1) materials and equipment under an allowance shall be selected promptly by the Owner
to avoid delay in the Work;
(2) the amount of each allowance shall cover the cost to the Contractor of materials and
equipment delivered at the site less all exempted taxes and applicable trade discounts;
(3) the amount of each allowance includes the Contractor’s costs for unloading and
handling at the site, labor, installation costs, overhead, profit, and other expenses
contemplated for stated allowance Work;
(4) 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:
(i) the difference between actual costs and the allowances under Clause (b) (2); and
(ii) changes in Contractor’s costs under Clause (b) (3);
(5) the Owner retains the right to review and approve Subcontractors selected by the
Contractor to perform work activities covered by allowances.
3.9 SUPERINTENDENT
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The Contractor shall employ a competent superintendent and necessary assistants who shall
be in attendance at the Project site during performance of the Work. The superintendent shall
represent the Contractor, and communications given to the superintendent shall be as binding
as if given to the Contractor. Important communications shall be confirmed in writing. Other
communications shall be similarly confirmed on written request in each case. The Owner
reserves the right to request that the Contractor replace its superintendent at any time and the
Contractor will replace said superintendent at the Owner’s direction.
3.10 CONTRACTOR’S CONSTRUCTION SCHEDULES
(a) The Contractor shall, immediately after award of the Contract and before submittal of the
first Application for Payment, prepare and submit the construction schedule for the
Architect/Engineer's and Owner's information, review, and approval in accordance with
the following provisions:
(1) Unless otherwise approved in writing by the Owner, the construction schedule shall
not exceed the Contract Time limits currently in effect under the Contract Documents
and shall provide for expeditious and practicable execution of the Work.
(2) The construction schedule shall include all shop drawing and submittal data
requirements, indicating for each:
(i) the latest date to be submitted by the Contractor; and
(ii) the latest date for approval by the Architect/Engineer.
(3) The construction schedule shall be in the form of a critical path management
schedule, and shall indicate each critical task (the “predecessor”) of all the major
construction activities of the Work in a logical and sequential order (the “project
network”) which requires completion prior to commencement of the task next
following (the “successor”). Each task shall be identified with:
(i) actual work time, exclusive of slack time, for accomplishment;
(ii) the latest start date;
(iii) the latest finish date;
(iv) the amount of float associated with each task;
(v) the amount of labor, material, and equipment associated with each task; and
(vi) the percentage of completion as of the date of the current schedule.
(4) The construction schedule shall be revised and updated monthly to reflect the actual
status of the Work and shall be submitted with each Application for Payment.
(5) On or before the first day of each month, following the date of commencement of the
Work as stated in the notice to proceed, the Contractor shall prepare and submit to the
Architect/Engineer and the Owner an up-to-date status report of the progress of the
various construction phases of the Work in the form of an updated construction
schedule. This status report shall consist of a time scale drawing indicating actual
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progress of the various phases of the Work and the percentage of completion of the
entire Work. The original construction schedule shall be updated or changed to
indicate any adjustments to the Contract Time granted by the Owner. The updated
schedule must be submitted with the Contractor’s Application for Payment. No
application will be certified without a satisfactory update to the construction schedule.
(6) The construction schedule will also be revised to show the effect of change orders and
other events on Contract Time. No request for an increase in Contract Time will be
considered unless it is accompanied by a schedule revision demonstrating the amount
of time related to the cause of the request. If the Contractor’s status schedules reflect
that the Contractor has fallen behind the pace required to complete the Work within
the Contract Time, through no fault of the Owner, the Contractor shall prepare a
recovery schedule demonstrating how it intends to bring its progress back within the
Contract Time. This recovery schedule shall be in a form acceptable to the Owner.
(7) Costs incurred by the Contractor in preparing and maintaining the required
construction schedule, any updated schedule, and any recovery schedule required by
the Owner will not be paid as an additional or extra cost and shall be included in the
Contract Sum.
(8) The Contract Sum is deemed to be based upon a construction schedule requiring the
full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL
BE ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON
AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND
COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED
EARLY COMPLETION DATE.
(b) The Contractor shall also prepare and keep current, for the Architect/Engineer’s
approval, a schedule of submittals which is coordinated with the Contractor’s
construction schedule and allows the Architect/Engineer reasonable time to
review submittals.
(c) The Contractor shall conform to the most recent schedules approved as to form by
the Architect/Engineer and the Owner. Any subsequent revisions made by the
Contractor to schedules in effect shall conform to the provisions of Subparagraph
3.10(a)
(d) If the Work falls behind the approved construction schedule, the Contractor shall
take such steps as may be necessary to improve his progress, and the
Architect/Engineer and the Owner may require him to increase the number of
shifts, overtime operations, days of work, or the amount of construction plant, and
to submit for approval revised schedules in the form required above in order to
demonstrate the manner in which the agreed rate of progress will be regained, all
without additional cost to the Owner.
3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE
The Contractor shall maintain at the Project site for the Owner one record copy of the
Drawings, Specifications, addenda, and Amendments in good order and marked currently to
record changes and selections made during construction, and in addition shall maintain at
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the Project site approved Shop Drawings, Product Data, Samples, and similar required
submittals. These shall be available to the Architect/Engineer and shall be delivered to the
Architect/Engineer for submittal to the Owner upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
(a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for
the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer,
supplier, or distributor to illustrate some portion of the Work.
(b) Product Data are illustrations, standard schedules, performance charts, instructions,
brochures, diagrams, and other information furnished by the Contractor to illustrate
materials or equipment for some portion of the Work.
(c) Samples are physical examples which illustrate materials, equipment, or workmanship
and establish standards by which the Work will be judged.
(d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract
Documents. The purpose of their submittal is to demonstrate for those portions of the
Work for which submittals are required the way the Contractor proposes to conform to
the information given and the design concept expressed in the Contract Documents.
Review by the Architect/Engineer is subject to the limitations of Paragraph 4.2.
(e) The Contractor shall review, approve and submit to the Architect/Engineer Shop
Drawings, Product Data, Samples, and similar submittals required by the Contract
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. Submittals made by the
Contractor which are not required by the Contract Documents may be returned without
action.
(f) The Contractor shall perform no portion of the Work requiring submittal and review of
Shop Drawings, Product Data, Samples, or similar submittals until the respective
submittal has been approved by the Architect/Engineer. Work requiring this submittal
and review shall be in accordance with approved submittals and any identified exceptions
noted by the Architect/Engineer.
(g) By approving and submitting Shop Drawings, Product Data, Samples and similar
submittals, the Contractor represents that the Contractor has determined and verified
materials, field measurements, and related field construction criteria, or will do so, and
has checked and coordinated the information contained within submittals with the
requirements of the Work and of the Contract Documents. The Contractor's attention is
directed to Paragraph 3.2 of these General Conditions and the requirements stated in that
Paragraph.
(h) The Contractor shall not be relieved of responsibility for deviations, substitutions,
changes, additions, deletions or omissions from requirements of the Contract Documents
by the Architect/Engineer's approval of Shop Drawings, Product Data, Samples, or
similar submittals unless the Contractor has specifically informed the Architect/Engineer
in writing of such substitutions, changes, additions, deletions, omissions, or deviations
involved in the submittal at the time of submittal and the Architect/Engineer, subject to a
formal Change Order signed by the Owner, Architect/Engineer and Contractor, has given
written approval to the specific substitutions, changes, additions, deletions, omissions, or
deviations. The Contractor shall not be relieved of responsibility for errors or omissions
in Shop Drawings, Product Data, Samples, or similar submittals by the
Architect/Engineer's approval thereof. Further, notwithstanding any approval of a
submittal by the Architect/Engineer, the Contractor shall be responsible for all associated
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Project costs, including costs of coordination’s, modifications, or impacts, direct or
indirect, resulting from any and all substitutions, changes, additions, deletions, omissions,
or deviations, whether or not specifically identified by the Contractor to the
Architect/Engineer at the time of the above-mentioned submittals, including additional
consulting fees, if any, in any and all accommodations associated with such substitutions,
changes, additions, deletions, omissions, or deviations to the requirements of the Contract
Documents.
(i) The Contractor shall direct specific attention, in writing or on resubmitted Shop
Drawings, Product Data, Samples, or similar submittals, to additional revisions other than
those requested by the Architect/Engineer on previous submittals. In the absence of such
written notice, the Architect/Engineer’s approval of a resubmission shall not apply to the
additional revisions not requested.
(j) Informational submittals upon which the Architect/Engineer is not expected to take
responsive action may be so identified in the Contract Documents.
(k) When professional certification of performance criteria of materials, systems, or
equipment is required by the Contract Documents, the Architect/Engineer shall be
entitled to rely upon the accuracy and completeness of such calculations and
certifications.
3.13 USE OF THE PROJECT SITE
The Contractor shall confine operations at the Project site to areas permitted by law,
ordinances, permits, and the Contract Documents and shall not unreasonably encumber the
Project site with materials or equipment.
3.14 CUTTING AND PATCHING
(a) The Contractor shall be responsible for cutting, fitting or patching required to complete
the Work or to make its parts fit together properly.
(b) The Contractor shall not damage or endanger a portion of the Work or any fully or
partially completed construction of the Owner or separate contractors by cutting,
patching, or otherwise altering the construction, or by excavating. The Contractor shall
not cut or otherwise alter the construction by the Owner or a separate contractor except
with the written consent of the Owner and of the separate contractor; consent shall not
be unreasonably withheld. The Contractor shall not unreasonably withhold from the
Owner or a separate contractor the Contractor’s consent to cutting or otherwise altering
the Work.
(c) A Hot Work Permit must be obtained from the City of Denton’s Facilities Management
Department, 869 S. Woodrow Lane, Denton, Texas (940 349-7200) for any temporary
operation involving open flames or producing heat and/or sparks. This includes, but is
not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and
Welding.
3.15 CLEANING UP
(a) The Contractor shall keep the Project site and surrounding area free from accumulation
of waste materials or rubbish caused by operations under the Contract. Upon the
completion of the Work the Contractor shall remove from and about the Project site all
waste materials, and rubbish, and all of the Contractor’s tools, construction equipment,
machinery, and surplus materials.
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(b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner
may clean up and the Owner’s cost of cleaning up shall be charged to the Contractor.
3.16 ACCESS TO WORK
The Contractor shall provide the Owner and the Architect/Engineer access to the Work in
preparation and progress wherever located during the course of construction.
3.17 TESTS AND INSPECTIONS
(a) Tests, inspections, and approvals of portions of the Work required by the Contract
Documents or by laws, ordinances, rules, regulations, or orders of governmental entities
or agencies having jurisdiction over the Work shall be made at appropriate times. Unless
otherwise provided, the Contractor shall make arrangements for such tests, inspections,
and approvals with an independent testing laboratory or entity selected or contracted by
the Owner or with the appropriate governmental entity or agency, and the Owner shall
bear all related costs of tests, inspections, and approvals. The Contractor shall give the
Architect/Engineer timely notice of when and where tests and inspections are to be made
so the Architect/Engineer may observe such procedures. The Owner shall bear costs of
tests, inspections, or approvals which become requirements after bids or proposals are
received.
(b) If the Architect/Engineer, the Owner or other public authorities having jurisdiction over
the Work determine that portions of the Work require additional testing, inspection or
approval not included under Subparagraph 3.17(a), the Architect/Engineer will, upon
written authorization from the Owner, instruct the Contractor to make arrangements for
such additional testing, inspection or approval by an entity acceptable to the Owner, and
the Contractor shall give timely notice to the Architect/Engineer of when and where tests
and inspections are to be made so that the Architect/Engineer may observe such
procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c).
(c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and
3.17(b) reveal deficiencies or nonconformities in the Work, the Contractor shall bear all
costs made necessary to correct the deficiencies or nonconformities, including those of
repeated procedures and compensation for the Architect/Engineer’s services and
expenses, if any. The Contractor shall bear the costs of any subsequent testing,
inspection, or approval of the corrected Work.
(d) Required certificates of testing, inspection or approval shall, unless otherwise required by
the Contract Documents, be secured by the Contractor and promptly delivered to the
Architect/Engineer.
(e) If the Architect/Engineer is to observe tests, inspections or approvals required by the
Contract Documents, the Architect/Engineer will do so promptly and, where practicable,
at the normal place of testing or inspection.
(f) Tests or inspections conducted pursuant to the Contract Documents shall be made
promptly to avoid unreasonable delay in the Work.
3.18 ROYALTIES AND PATENTS
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The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL
COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND
ARCHITECT/ENGINEER HARMLESS FROM ANY AND ALL SUITS OR CLAIMS
FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF WHETHER OR NOT
THE OWNER OR THE ARCHITECT/ENGINEER SPECIFIED A PARTICULAR
DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY
BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY
INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor
has reason to believe that a particular design, process or product specified infringes a
patent, the Contractor shall immediately notify the Owner and the Architect/Engineer of
same.
3.19 INDEMNIFICATION
(a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE
OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE
ARCHITECT/ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS,
LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES FOR
PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER
HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR
PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT
MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF
ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF
LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR
STRICTLY LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS,
AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB-SUBCONTRACTORS
AND THEIR RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR
ANY OTHER PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS
LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT;
EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL
NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE
OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR
SEPARATE CONTRACTORS, OR OF THE ARCHITECT/ENGINEER, AND IN THE
EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE
CONTRACTOR, THE OWNER, AND THE ARCHITECT/ENGINEER,
RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN
ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT,
HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO
THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES
OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS
PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND
ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL
OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
(b) In claims against any person or entity indemnified under this Paragraph 3.19 by an
employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by
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them or anyone for whose acts they may be liable, the indemnification obligation under
this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the Contractor or a Subcontractor under
workers compensation acts, disability benefit acts or other employee benefit acts.
(c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability
which could result to or be created for the Owner, its officers, agents, or employees, or
the Architect/Engineer pursuant to State or Federal laws or regulations relating to
pollution of the environment and State or Federal laws or regulations relating to the
occupational safety and health of workers. The Contractor specifically agrees to comply
with the above-mentioned laws and regulations in the performance of the Work by the
Contractor and that the obligations of the Owner, its officers, agents, and employees, and
the Architect/Engineer under the above-mentioned laws and regulations are secondary to
those of the Contractor.
ARTICLE 4 CONTRACT ADMINISTRATION
4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER)
(a) The design professional is the person lawfully licensed to practice architecture or
engineering or a firm or other business entity lawfully practicing architecture/engineering
identified as such in the formal Building Construction Services Agreement and is referred
to throughout the Contract Documents as if singular in number. The term
“Architect/Engineer” means the Architect/Engineer or the Architect/Engineer’s
authorized representative. The Owner may, at its option, designate a qualified Owner
representative to serve as the Architect/Engineer on the Project instead of an outside firm
or person. In such event, the references in these General Conditions that refer to the
Architect/Engineer shall apply to the Owner-designated Architect/Engineer
representative and the Owner-designated Architect/Engineer representative shall be
accorded that same status by the Contractor.
(b) In the event the Architect/Engineer is an outside person or firm and the
Architect/Engineer's employment is terminated, the Owner may, at its option, contract
with a new outside Architect/Engineer to replace the former, or may designate a qualified
Owner representative to serve as the Architect/Engineer. The replacement
Architect/Engineer, whether an Owner representative, an independent Architect/Engineer
or any other qualified person or entity, shall be regarded as the Architect/Engineer for all
purposes under the Contract Documents and shall be accorded that same status by the
Contractor. Any dispute in connection with such appointment shall be reviewed and
settled by the Owner, whose decision shall be final and binding.
(c) Owner reserves the right to appoint a representative empowered to act for the Owner
during the Construction Phase and to supersede the Architect/Engineer’s Construction
Phase responsibility. Similarly, from time to time the Owner may expand or reduce the
Owner’s delegation of powers to the Architect/Engineer, with the Owner notifying the
Contractor of any such changes. The Architect/Engineer shall not be construed as a third
party beneficiary to the Contract and can in no way object to any expansion or reduction
of powers as set forth in this Subparagraph (c). In no event, however, shall the Owner
have control over charge of, or be responsible for, construction means, methods,
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techniques, sequences, or procedures, or for safety precautions or programs in connection
with the Work since these are solely the Contractor’s responsibility. The Owner will not
be responsible for the Contractor’s failure to carry out the Work in accordance with the
Contract Documents. The Owner will not have control over or charge of and will not be
responsible for acts or omissions of Contractor, Subcontractors, or their agents or
employees, or of any other persons performing portions of the Work.
4.2 ARCHITECT/ENGINEER’S RESPONSIBILITIES DURING CONSTRUCTION
(a) The Architect/Engineer will administer the Contract as described in the Contract
Documents and in accordance with the terms of the Architect/Engineer's agreement with
the Owner, where applicable, subject to the direction and approval of the Owner. If
requested by the Contractor, the provisions of the Owner/Architect/Engineer Agreement
will be made available to the Contractor.
(b) The Architect/Engineer shall provide, during performance of the Work, adequate and
competent periodic on-site construction observation, periodically visiting the Project site
to the extent necessary to personally familiarize themselves with the progress and quality
of the Work, and to determine if the Work is proceeding in accordance with the Contract
Documents. The Architect/Engineer shall not, however, be required to make continuous
on-site inspections to check the Work. Field reports of each visit shall be prepared by the
Architect/Engineer and submitted to the Owner. The Architect/Engineer shall employ all
reasonable measures to safeguard the Owner against defects and nonconformities in the
Work. The Architect/Engineer shall not be responsible for the construction means,
methods, techniques, sequences of procedures, nor for the safety precautions and
programs employed in connection with the Work. The Architect/Engineer will, however,
immediately inform the Owner whenever defects or nonconformities in the Work are
observed, or when any observed actions or omissions are undertaken by the Contractor or
any Subcontractor which are not in the best interests of the Owner or the Project.
(c) The Architect/Engineer and the Owner will not have control over or charge of and will
not be responsible for construction means, methods, techniques, sequences, or
procedures, or for safety precautions and programs in connection with the Work, since
these are solely the Contractor’s responsibility as provided in Paragraph 4.3. The
Architect/Engineer and the Owner will not be responsible for the Contractor’s failure to
carry out the Work in accordance with the Contract Documents. The Architect/Engineer
and the Owner will not have control over or charge of and will not be responsible for acts
or omissions of the Contractor, Subcontractors, Sub-subcontractors, or their respective
agents or employees, or of any other persons performing portions of the Work for which
the Contractor is responsible.
(d) Except as otherwise provided in the Contract Documents or when direct communications
have been specially authorized, the Owner and Contractor shall endeavor to communicate
through the Architect/Engineer. Communications by and with the Architect/Engineer’s
consultants shall be through the Architect/Engineer. Communications by and with
Subcontractors and material suppliers shall be through the Contractor. Communications
by and with separate contractors will be through the Owner. The Contractor shall provide
written confirmation of communications made directly with the Owner and provide
copies of such confirmation to the Architect/Engineer.
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(e) Based on the Architect/Engineer’s observations and evaluations of the Contractor’s
Applications for Payment, the Architect/Engineer will review and certify the amounts due
the Contractor and will issue Certificates for Payment in such amounts.
(f) The Architect/Engineer and the Owner will each have authority to reject Work which
does not conform to the Contract Documents. Whenever the Architect/Engineer considers
it necessary or advisable for implementation of the intent of the Contract Documents, the
Architect/Engineer will have authority to require additional inspection or testing of the
Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work
is fabricated, installed or completed. However, neither this authority of the
Architect/Engineer nor a decision made in good faith either to exercise or not to exercise
such authority shall give rise to any duty or responsibility of the Architect/Engineer to the
Contractor, Subcontractors, material and equipment suppliers, their agents or employees,
or other persons performing portions of the Work.
(g) The Architect/Engineer will review and approve or take other appropriate action upon the
Contractor’s submittals such as Shop Drawings, Product Data, and Samples, but only for
the limited purpose of checking for conformance with information given and the design
concept expressed in the Contract Documents. The Architect/Engineer’s action will be
taken with such reasonable promptness as to not delay the Work or the activities of the
Owner, Contractor, 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
Contractor as required by the Contract Documents. The Architect/Engineer’s review of
the Contractor’s submittals shall not relieve the Contractor of any obligations under
Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer’s review shall not constitute
approval of safety precautions or, unless otherwise specifically stated in writing by the
Architect/Engineer, of any construction means, methods, techniques, sequences, or
procedures. The Architect/Engineer’s approval of a specific item shall not indicate
approval of an assembly of which the item is a component.
(h) The Architect/Engineer will prepare Change Orders and may authorize minor changes in
the Work as provided in Paragraph 7.3.
(i) The Architect/Engineer will conduct inspections to determine the date or dates of
Substantial Completion and the date of final completion, will receive and forward to the
Owner for the Owner’s review and records written warranties and related documents
required by the Contract and assembled by the Contractor, and will issue a final
Certificate for Payment upon compliance with the requirements of the Contract
Documents.
(j) If the Owner and Architect/Engineer agree, the Architect/Engineer will provide one or
more Project representatives to assist in carrying out the Architect/Engineer’s
responsibilities at the site. The duties, responsibilities, and limitations of authority of such
Project representatives shall be as set forth in an exhibit to be incorporated into the
Contract Documents.
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(k) The Architect/Engineer will interpret and make recommendations to the Owner
concerning performance under and requirements of the Contract Documents upon written
request of either the Owner or Contractor. The Architect/Engineer’s response to such
requests will be made with reasonable promptness and within any time limits agreed
upon. The Architect/Engineer shall secure the Owner’s written approval before issuing
instructions, interpretations, or judgments to the Contractor which change the scope of
the Work or which modify or change the terms and conditions of any of the Contract
Documents.
(l) Interpretations and decisions of the Architect/Engineer will be consistent with the intent
of and reasonably inferable from the Contract Documents and will be in writing or in the
form of Drawings. When making such interpretations and decisions, the
Architect/Engineer will endeavor to secure faithful performance by the Contractor.
(m) The Architect/Engineer’s decisions on matters relating to aesthetic effect will be final if
consistent with the intent expressed in the Contract Documents provided that the
Architect/Engineer has prior written approval of the Owner.
4.3 CLAIMS AND DISPUTES
(a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a
“Claim” means a demand or assertion by one of the parties to the Contract seeking an
adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract
Time, or some other relief in respect to the terms of the Contract Documents. The term
also includes all other disputes between the Owner and the Contractor arising out of or
relating to the Project or the Contract Documents, including but not limited to claims that
work was outside the scope of the Contract Documents. The responsibility to substantiate
the Claim and the burden of demonstrating compliance with this provision shall rest with
the party making the Claim. Except where otherwise provided in the Contract
Documents, a Claim by the Contractor, whether for additional compensation, additional
time, or other relief, including but not limited to claims arising from concealed
conditions, MUST BE MADE BY WRITTEN NOTICE TO THE
ARCHITECT/ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS
AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE
PARTICULAR CLAIM. Every Claim of the Contractor, whether for additional
compensation, additional time, or other relief, including but not limited to claims arising
from concealed conditions, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind the
Contractor by his signature) of the Contractor, verifying the truth and accuracy of the
Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY
CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURE AND
TIME LIMITS SET OUT IN THIS PARAGRAPH.
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question
between the Contractor and the Owner relating to the progress or execution of the Work
or the interpretation of the Contract Documents shall be referred to the
Architect/Engineer for recommendation to the Owner, which recommendation the
Architect/Engineer will furnish in writing within a reasonable time, provided proper and
adequate substantiation has been received. Failure of the Contractor to submit the Claim
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to the Architect/Engineer for rendering of a recommendation to the Owner shall
constitute a waiver of the Claim.
(c) Continuing Contract Performance. Pending final resolution of a claim the Contractor
shall proceed diligently with performance of the Work and the Owner shall continue to
make payments in accordance with the Contract Documents.
(d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or
Time associated with concealed or unknown conditions will normally be considered or
allowed; provided, however, that the Contract Sum or Time may be adjusted by the
Owner in such circumstances only if:
(1) a concealed subsurface condition is encountered in the course of performance of the
Work;
(2) a concealed or unknown condition in an existing structure is at variance with
conditions indicated by the Contract Documents; or
(3) an unknown physical condition is encountered below the surface of the ground or in
an existing structure which is of an unusual nature and materially different from those
ordinarily encountered and generally recognized as inherent in the character of the
Work; and
(4) a notice of claim with proper and adequate substantiation is presented pursuant to
Subparagraph 4.3(a) of these General Conditions; and
(5) the Owner and the Architect/Engineer determine that:
(i) prior to submitting its bid for the Work, the Contractor used reasonable diligence
to fully inspect the portion of the Project site where the condition was discovered; and
(ii) the work caused or required by the concealed or unknown condition at issue can
be considered extra work to the extent that additional new Drawings must be prepared
and issued and new construction beyond the scope of the Contract Documents is
required.
(e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE
INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS
TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE
ASSESSMENTS) PROVIDED BY THE OWNER AND THE
ARCHITECT/ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS
SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR’S OWN
RISK. THE OWNER AND THE ARCHITECT/ENGINEER DO NOT GUARANTEE
OR WARRANT ANY INFORMATION SHOWN IN THE PROJECT SITE
INFORMATION AND REPORTS.
(f) Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in
the Contract Sum, written notice as provided in this Paragraph 4.3 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 Paragraph 10.3. In addition, the
Contractor's request for an increase in the Contract Sum for any reason (other than work
performed under emergency conditions) shall be made far enough in advance of required
work to allow the Owner and the Architect/Engineer a sufficient amount of time, without
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adversely affecting the construction schedule, to review the request, prepare and
distribute such additional documents as may be necessary to obtain suitable estimates or
proposals and to negotiate, execute and distribute a Change Order for the required work if
the Contractor believes that additional cost is involved for reasons including but not
limited to:
(1) a written interpretation from the Architect/Engineer;
(2) a written order for a minor change in the Work issued by the Architect/Engineer;
(3) failure of payment by the Owner;
(4) termination of the Contract by the Owner;
(5) the Owner’s temporary suspension of all or any portion of the Work where the
Contractor was not at fault; or
(6) other reasonable grounds.
(g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to
person or property because of an act or omission of the Owner, or of any of the Owner's
officers, employees or agents, written, sworn-to notice of any claim for damages or injury
shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient
detail to enable the Architect/Engineer and the Owner to investigate the matter.
(h) Subcontractor Pass-Through Claims. In the event that any Subcontractor of the
Contractor asserts a claim to the Contractor that the Contractor seeks to pass through to
the Owner under the Contract Documents, any entitlement of the Contractor to submit
and assert the claim against the Owner shall be subject to:
(1) the requirements of Paragraph 4.3 of these General Conditions; and
(2) the following additional three requirements listed below, all three of which additional
requirements shall be conditions precedent to the entitlement of the Contractor to seek
and assert such claim against the Owner:
(ii) The Contractor shall either (A) have direct legal liability as a matter of contract,
common law, or statutory law to the Subcontractor for the claim that the
Subcontractor is asserting or (B) the Contractor shall have entered into a written
liquidating agreement with the Subcontractor, under which agreement the Contractor
has agreed to be legally responsible to the Subcontractor for pursing the assertion of
such claim against the Owner under the Contract and for paying to the Subcontractor
any amount that may be recovered, less Contractor’s included markup (subject to the
limits in the Contract Documents for any markup). The liability or responsibilities
shall be identified in writing by the Contractor to the Owner at the time such claim is
submitted to Owner, and a copy of any liquidating agreement shall be included by the
Contractor in the claim submittal materials.
(ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its
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submittal to Owner and shall have independently evaluated such claim in good faith
to determine the extent to which the claim is believed in good faith to be valid. The
Contractor shall also certify, in writing and under oath to the Owner, at the time of the
submittal of such claim, that the Contractor has made a review, evaluation, and
determination that the claim is made in good faith and is believed to be valid.
(iii) The Subcontractor making the claim to the Contractor shall certify in writing and
under oath that it has compiled, reviewed and evaluated the merits of such claim and
that the claim is believed in good faith by the Subcontractor to be valid. A copy of the
certification by the Subcontractor shall be included by Contractor in the claim
submittal materials.
(3) Any failure of the Contractor to comply with any of the foregoing requirements and
conditions precedent with regard to any such claim shall constitute a waiver of any
entitlement to submit or pursue such claim.
(4) Receipt and review of a claim by the Owner under this Subparagraph shall not be
construed as a waiver of any defenses to the claim available to the Owner under the
Contract Documents or law.
(i) Owner’s Right to Order Acceleration and to Deny Claimed and Appropriate Time
Extensions, in Whole or in Part. The Contractor acknowledges and agrees that
Substantial Completion of the Work by or before the Scheduled Completion Date is
of substantial importance to Owner. The following provisions, therefore, will apply:
(1) If the Contractor falls behind the approved construction schedule for whatever
reason, the Owner shall have the right, in the Owner’s sole discretion, to order the
Contractor to develop a recovery schedule as described in Paragraph 3.10 or to
accelerate its progress in such a manner as to achieve Substantial Completion on
or before the Contract Time completion date or such other date as the Owner may
reasonably direct and, upon receipt, the Contractor shall take all action necessary
to comply with the order. In such event, any possible right, if any, of the
Contractor to additional compensation for any acceleration shall be subject to the
terms of this Subparagraph (i).
(2) In the event that the Contractor is otherwise entitled to an extension of Contract
Time and has properly initiated a Claim for a time extension in accordance with
Subparagraph 4.3(a) above, the Owner shall have the right, in the Owner’s sole
discretion, to deny all, or any part, of the Claim for extension of Contract Time by
giving written notice to the Contractor provided within fourteen (14) days after
receipt of the Contractor's Claim. If the Owner denies the Contractor's claim for
an extension of Contract Time under this Clause (i)(2), either in whole or in part,
the Contractor shall proceed to prosecute the Work in such a manner as to achieve
Substantial Completion on or before the then existing Scheduled Completion
Date.
(3) If the Contractor would have been entitled to a time extension for a reason
specifically allowed under the Contract Documents, for an amount of time that
would have justified approval by the Owner if not for the need and right to
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accelerate, the Contractor may initiate a Claim for acceleration costs pursuant to
Subparagraph 4.3(a). Any resulting Claim for acceleration costs properly initiated
by the Contractor under Subparagraph 4.3(a) above shall be limited to those
reasonable and documented direct costs of labor, materials, equipment, and
supervision solely and directly attributable to the actual acceleration activity
necessary to bring the Work back within the then existing approved construction
schedule. These direct costs include the premium portion of overtime pay,
additional crew, shift, or equipment costs if requested in advance by the
Contractor and approved in writing by the Owner. A percentage markup for the
prorated cost of premium on the existing performance and payment bonds and
required insurance, not to exceed 5%, will be allowed on the claimed acceleration
costs. NO OTHER MARKUP FOR PROFIT, OVERHEAD (INCLUDING BUT
NOT LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS
WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall
not be liable for any costs related to an acceleration claim other than those
described in this Clause (i)(3).
(i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver
of claims by the Owner except those arising from:
(1) claims, security interests, purported liens, or other attempted encumbrances arising
out of the Contract and remaining unsettled;
(2) defective or nonconforming Work appearing after Substantial Completion;
(3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion;
or
(4) the terms of general and special warranties required by the Contract Documents or
allowed or implied by law.
(k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY’S
FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT
DOCUMENTS OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE
DISPUTE RESOLUTION PROCEEDING.
(l) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT
DOCUMENTS SHALL BE CONSTRUED TO WAIVE THE OWNER’S
GOVERNMENTAL IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS
EXPRESSLY RETAINED TO THE EXTENT IT IS NOT CLEARLY AND
UNAMBIGUOUSLY WAIVED BY STATE LAW.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS OF SUBCONTRACTOR
(a) A Subcontractor is person or entity who has a direct contract with the Contractor to
perform a portion of the Work at the Project site or to supply materials or equipment to
the Contractor by purchase or lease for use in performance of or incorporation into the
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Work. The term “Subcontractor” is referred to throughout the Contract Documents as if
singular in number and means a Subcontractor or an authorized representative of the
Subcontractor. The term “Subcontractor” does not include a separate contractor or
subcontractors of a separate contractor.
(b) A Sub-subcontractor is a person or entity who has a direct or indirect contract with a
Subcontractor to perform a portion of the Work at the Project site or to supply materials
or equipment to the Subcontractor or another Sub-subcontractor by purchase or lease for
use in performance of or incorporation into the Work. The term “Sub-subcontractor” is
referred to throughout the Contract Documents as if singular in number and means a Sub-
subcontractor or an authorized representative of the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF
THE WORK
(a) Immediately after the award of the Contract by the Owner, and before the Building
Construction Services Agreement is signed by the Contractor and the Owner, the
Contractor shall furnish to the Architect/Engineer in writing, for acceptance by the
Owner and the Architect/Engineer, a list of the names, addresses, telephone numbers,
M/WBE certification numbers (where applicable), and type of work of the Subcontractors
(including those who are to furnish materials or equipment fabricated to a special design),
proposed for the principal portions of the Work, including furnishings when made a part
of the Contract. The Contractor shall immediately notify the Owner in writing of any
changes in the list as they occur. The Architect/Engineer will promptly reply to the
Contractor in writing stating whether or not the Owner or the Architect/Engineer, after
due investigation, has reasonable objection to any such proposed person or entity. Failure
of the Owner or Architect/Engineer to reply promptly shall constitute notice of no
reasonable objection.
(b) The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable and timely objection.
(c) Architect/Engineer's and Owner's approval of or objection to any Subcontractor or of a
particular process or material will not relieve the Contractor of his responsibility for
performance of Work as called for under the Contract Documents, and shall not provide a
basis for any claim for additional time or money on the part of the Contractor. Approval
shall not be construed to create any contractual relationship between the Subcontractor
and either the Owner or Architect/Engineer. In no event shall the Contract Sum be
increased as a result of the rejection of any Subcontractor.
(d) The Contractor shall not change a Subcontractor previously selected if the Owner or
Architect/Engineer makes reasonable objection to such change.
5.3 SUBCONTRACTUAL RELATIONS
(a) By appropriate agreement, written where legally required for validity, the Contractor
shall require each Subcontractor, to the extent of the Work to be performed by the
Subcontractor, to be bound to the Contractor by the terms of the Contract Documents
(including but not limited to these General Conditions), and to assume toward the
Contractor all the obligations and responsibilities which the Contractor, by the Contract
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Documents, assumes toward the Owner and the Architect/Engineer. Each subcontract
agreement shall preserve and protect the rights of the Owner and the Architect/Engineer
under the Contract Documents (including but not limited to these General Conditions)
with respect to the Work to be performed by the Subcontractor so that subcontracting will
not prejudice the rights of the Owner and the Architect/Engineer. Where appropriate, the
Contractor shall require each Subcontractor to enter into similar agreements with Sub-
subcontractors. The Contractor shall make available to each proposed Subcontractor,
prior to the execution of the subcontract agreement, copies of the Contract Documents to
which the Subcontractor is to be bound. Subcontractors shall similarly make copies of
applicable portions of such Documents available to their respective proposed Sub-
subcontractors.
(b) The Contractor is solely responsible for making payments properly to the Contractor’s
Subcontractors on the Project. During performance of the Work, the Contractor shall
comply with the following additional rules regarding Subcontractor payments:
(1) The Contractor shall submit, beginning with the Second Application and Certificate
for Payment, a Subcontractor Payment Report (the "Report") with each Application
and Certificate for Payment. The Report shall show all payments made to date by the
Contractor (plus existing retainage) to each Subcontractor involved in the Project.
The Report shall be made on a form approved and supplied by the Owner. As an
alternative to the Report, the Contractor may furnish Affidavits of Payment Received
with the Application and Certificate for Payment, which affidavits shall be executed
by each Subcontractor owed money and paid during the previous progress payment
period for work or materials furnished on the Project. RECEIPT BY THE OWNER
OF THE REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A
CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION.
(2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a
dispute or other problem with performance, the Contractor shall note the amount
withheld and that payment is in dispute. The Owner may require the Contractor to
document and verify the dispute or other problem in question.
(3) The Owner reserves the right in its sole discretion, to withhold payment to the
Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear
from the Report, statements of payment received or other information furnished to the
Owner that:
(i) the Report has not been properly completed;
(ii) the Contractor has knowingly provided false information regarding payment of
any Subcontractor; or
(iii) the Contractor has otherwise failed to make payments properly to any
Subcontractor.
(4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM
FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT
OF THE OWNER'S OR ARCHITECT/ENGINEER'S ENFORCEMENT OF THIS
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SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR
ANY OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO
CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED,
BETWEEN ANY SUBCONTRACTOR AND EITHER THE OWNER OR THE
ARCHITECT/ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY
SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY
BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE
CONTRACTOR.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall,
if requested in writing by the Owner, within fifteen (15) days after the date notice of termination
is sent, deliver and assign to Owner, or any person or entity acting on the Owner's behalf, any or
all subcontracts made by Contractor in the performance of the Work, and deliver to the Owner
true and correct originals and copies of the subcontract documents. In the event assignment is not
requested by the Owner, Contractor shall terminate all subcontracts to the extent that Owner has
not directed assignment of same and to the extent that they relate to the performance of Work
terminated by the notice of termination.
ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS
6.1 OWNER’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD
SEPARATE CONTRACTS
(a) 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 Project site under
Conditions of the Contract identical or substantially similar to these General Conditions,
including those portions related to insurance and waiver of subrogation. If the Contractor
claims that delay or additional cost is involved because of such action by the Owner, the
Contractor shall make a claim as provided elsewhere in and in accordance with the
Contract Documents.
(b) When separate contracts are awarded for different portions of the Project or other
construction or operations on the Project site, the term “Contractor” in the Contract
Documents in each case shall mean the Contractor who executes each separate Building
Construction Services Agreement with the Owner.
(c) 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 Contractor, who shall cooperate with
them. The Contractor shall participate with other separate contractors and the Owner in
reviewing their construction schedules when directed to do so. The Contractor shall, with
the approval of the Owner, 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 Contractor, separate contractors, and the
Owner until subsequently revised by mutual agreement or by written Change Order. If
the Contractor believes it is entitled to an adjustment of the Contract Sum under the
circumstances, the Contractor shall submit a written proposal for a Change Order
pursuant to Article 7 of the General Conditions. In the event the Contractor’s Change
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Order proposal is denied by the Owner, the Contractor must submit any Claim pursuant
to Paragraph 4.3 of the General Conditions.
(d) Unless otherwise provided in the Contract Documents, when the Owner performs
construction or operations related to the Project with the Owner’s own forces, the Owner
shall be deemed to be subject to the same obligations and to have the same rights which
apply to the Contractor under these General Conditions, including, without excluding
others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12.
6.2 MUTUAL RESPONSIBILITY
(a) The Contractor shall afford the Owner and separate contractors’ reasonable opportunity
for access to and storage of their materials and equipment and the performance of their
activities and shall coordinate the Contractor’s construction and operations with the
separate contractors as required by the Contract Documents.
(b) If part of the Contractor’s Work depends for proper execution or results upon
construction or operations by the Owner or a separate contractor, the Contractor shall,
prior to proceeding with that portion of the Work, promptly report to the
Architect/Engineer apparent discrepancies or defects in the other construction that would
render it unsuitable for proper execution and results. Failure of the Contractor to so report
shall constitute an acknowledgment that the Owner’s or separate contractors completed
or partially completed construction is fit and proper to receive the Contractor’s Work,
except as to defects not then reasonably discoverable.
(c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor
due to the fault or negligence of a separate contractor or through failure of a separate
contractor to carry out the directions of the Owner or the Architect/Engineer. Should any
interference occur between the Contractor and a separate contractor, the
Architect/Engineer or the Owner may furnish the Contractor with written instructions
designating priority of effort or change in methods, whereupon the Contractor shall
immediately comply with such direction. In such event, the Contractor shall be entitled to
an extension of the Contract Time only for unavoidable delays verified by the
Architect/Engineer; no increase in the Contract Sum, however, shall be due to the
Contractor.
(d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to
completed or partially completed construction or to property of the Owner or separate
contractors as provided in Subparagraph 10.2(e).
(e) Should the Contractor cause damage to the work or property of any separate contractor
on the Project, the Contractor shall, upon due notice, settle with the separate contractor
by agreement, if the separate contractor will so settle. If the separate contractor sues the
Owner or submits a claim on account of any damage alleged to have been so sustained,
the Owner shall notify the Contractor who shall defend such proceedings, at the
Contractor's expense, and if any judgment or award against the Owner arises from the
separate contractor’s claim, the Contractor shall pay or satisfy it and shall reimburse the
Owner for all attorney's fees and costs which the Owner has incurred.
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(f) The Owner and each separate contractor shall have the same responsibilities for cutting
and patching as are described for the Contractor in Paragraph 3.14.
6.3 OWNER’S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the
responsibility under their respective contracts for maintaining the Project site and
surrounding area free from waste materials and rubbish as described in Paragraph 3.15, the
Owner may clean up and allocate the cost among those responsible as the Architect/Engineer
recommends to be just.
ARTICLE 7 AMENDMENTS
7.1 CHANGE ORDERS
(a) A Change Order is a written order to the Contractor, signed by the Owner and the
Architect/Engineer, issued after execution of the Contract, authorizing a change in the
Work, an adjustment in the Contract Sum, or an adjustment to the Contract Time,
consistent with other applicable provisions of this Contract. The Owner, without
invalidating the Contract and without requiring notice of any kind to the sureties, may
order changes to the scope of Work under the Contract by additions, deletions, or other
revisions, the Contract Sum and Contract Time to be adjusted consistent with other
applicable provisions of this Contract. All Change Orders shall be executed on a Change
Order form approved by the Owner and the Owner’s City Attorney.
(b) In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change
Orders to verify and confirm the terms and conditions established by Change Order;
however, should the Contractor refuse to sign a Change Order, this shall not relieve him
of his obligation to perform the change directed by the Owner and the Architect/Engineer
to the best of his ability in accordance with the provisions of this Article 7. A Change
Order signed by the Contractor indicates his agreement with all of the changes approved,
including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE
ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF
TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR
FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR
CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER.
The execution of a Change Order by the Contractor shall constitute conclusive evidence
of the Contractor’s agreement to the ordered changes in the Work. The Contractor forever
releases any claim against the Owner for additional time or compensation for matters
relating to or arising out of or resulting from the Work included within or affected by the
executed Change Order. This release applies to claims related to the cumulative impact of
all Change Orders and to any claim related to the effect of a change on other Work.
(c) No extra work (except under emergency conditions) or changes shall be made nor shall
any substitutions, changes or additions to or omissions or deviations from the
requirements of the Drawings and Specifications be made unless pursuant to a written
Change Order signed by the Owner and the Architect/Engineer, it being expressly
understood that the Owner shall not be liable for the cost of extra work or any
substitution, change, addition, omission or deviation from the requirements of the
Drawings or Specifications unless the same shall have been authorized in writing by the
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Owner and the Architect/Engineer in a written change order or other Amendment. The
provisions of this Paragraph 7.1 shall control in the event of any inconsistency between
such provisions and the other provisions of this Article 7. See Subparagraph 10.3(a) of
the General Conditions for Change Orders under emergency conditions.
(d) The method of determining the cost or credit to the Owner for any change in the Work
shall be one of the following:
(1) mutual acceptance of a not-to-exceed lump sum amount properly itemized and
supported by sufficient substantiating data to permit evaluation;
(2) unit prices stated in the Contract Documents or subsequently agreed upon;
(3) cost to be determined in a manner agreed upon by the parties and a mutually
acceptable fixed or percentage fee; or
(4) the force account method provided in Subparagraph 7.1(e)
(e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses
(d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final
dollar figure, or if the Contractor for whatever reason refuses to sign the Change Order in
question, the Contractor, provided he receives a written order signed by the Owner, shall
promptly proceed with the Work involved. The cost of the Work involved shall then be
calculated on the basis of the reasonable jobsite expenditures and savings of those
performing the Work attributable to the changes, including a reasonable allowance for
overhead and profit, such allowance in any case never to exceed 15%. In such case, the
Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in
such form and with the appropriate supporting data as the Architect/Engineer and Owner
may prescribe. Sworn copies of the itemized accounting shall be delivered to the
Architect/Engineer each day during the performance of force account work, with copies
to the Owner.
FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN-TO ITEMIZED
ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER
BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S
DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE
ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work
are limited to the following:
(1) costs of labor, including social security, old age and unemployment insurance, fringe
benefits required by agreement or custom, and workers compensation insurance;
(2) costs of materials, supplies and equipment (but not to include off-site storage unless
approved in writing by the Owner), whether incorporated or consumed;
(3) rental costs of machinery and equipment, exclusive of hand tools, whether rented
from the Contractor or others;
(4) costs of premiums for all bonds and insurance related to the Work; and
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(5) additional costs of supervision and field office personnel directly attributable to the
changed Work. Pending final determination of cost to the Owner, payment of
undisputed amounts on force account shall be included on the Architect/Engineer's
Certificate of Payment as work is completed.
(f) The amount of credit to be allowed to the Owner for any deletion of Work or any other
change which results in a net decrease of the Contract Sum shall be the amount of actual
net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and
profit. When both additions and deletions or credits covering related Work or
substitutions are involved in any one change, the allowance for overhead and profit shall
be figured on the basis of the net increase or decrease with respect to that change.
7.2 SUPPLEMENTAL AGREEMENTS
A written Supplemental Agreement can also be used to implement changes in the Work
instead of a Change Order form, including but not limited to situations involving partial
occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the
Specifications without an increase in the Contract Sum, or special circumstances where it is
necessary or more appropriate for the Owner to use a Supplemental Agreement. Written
Supplemental Agreements shall have a status equal to that of Change Orders for purposes of
priority of Contract Documents interpretation, except that to the extent of a conflict, later
Supplemental Agreements in time control over earlier Supplemental Agreements, and the
latest Change Order or Supplemental Agreement in time controls over earlier dated Change
Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall
also apply to the negotiation and execution of Supplemental Agreements.
7.3 MINOR CHANGES IN THE WORK
The Architect/Engineer, after notifying the Owner, shall be authorized to order minor
changes in the Work not involving an adjustment in the Contract Sum or an extension of the
Contract Time and not inconsistent with the intent of the Contract Documents. Minor
changes shall be effected by written order, and shall be binding on the Owner and the
Contractor. The Contractor shall carry out such written orders promptly. These written orders
shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor
shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3
unless the Contractor submits its change proposal, prior to complying with the minor change
ordered and in no event later than ten (10) working days from the date the minor change was
ordered, to the Owner for approval.
7.4 TIME REQUIRED TO PROCESS AMENDMENTS
(a) All of the Contractor’s responses to proposal requests shall be accompanied by a
complete, itemized breakdown of costs. Responses to proposal requests shall be
submitted sufficiently in advance of the required work to allow the Owner and the
Architect/Engineer a minimum of thirty (30) calendar days after receipt by the
Architect/Engineer to review the itemized breakdown and to prepare or distribute
additional documents as may be necessary. All of the Contractor's responses to proposal
requests shall include a statement that the cost described in the response represents the
complete, total and final cost and additional Contract Time associated with the extra
work, change, addition to, omission, deviation, substitution, or other grounds for seeking
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extra compensation under the Contract Documents, without reservation or further
recourse.
(b) All Amendments require approval by either the City Council or, where authorized by the
state law and City ordinance, by the City Manager pursuant to Administrative Action.
The approval process requires a minimum of forty-five (45) calendar days after
submission to the Owner in final form with all supporting data. Receipt of a submission
by Owner does not constitute acceptance or approval of a proposal, nor does it constitute
a warranty that the proposal will be authorized by City Council Resolution or
Administrative Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS
SHALL NOT BE CONSIDERED A DELAY AND NO EXTENSIONS TO THE
CONTRACT TIME OR INCREASE IN THE CONTRACT SUM WILL BE
CONSIDERED OR GRANTED AS A RESULT OF THIS PROCESS. Pending the
approval described above, the Contractor will proceed with the work under a pending
Amendment only if directed in writing by the Owner.
ARTICLE 8 CONTRACT TIME
8.1 DEFINITIONS
(a) Unless otherwise provided, the Contract Time is the period of time, including authorized
adjustments, allotted in the Contract Documents for Substantial Completion of the Work.
(b) The date of commencement of the Work is the date established in the notice to proceed
from the Owner. The date of commencement shall not be postponed by the failure of the
Contractor, or of persons or entities for whom the Contractor is responsible to act
promptly to commence the Work. If the Owner unreasonably delays the issuance of the
notice to proceed through no fault of the Contractor, the Contractor shall be entitled only
to an equitable extension of the Contract Time; the Contract Sum shall remain
unchanged.
(c) The date of Substantial Completion is the date certified by the Architect/Engineer in
accordance with Paragraph 9.7.
(d) The term “day” as used in the Contract Documents shall mean a calendar day, beginning
and ending at 12:00 midnight, unless otherwise specifically defined by special provision.
8.2 PROGRESS AND COMPLETION
(a) Time limits stated in the Contract Documents are of the essence of the Contract. By
executing the Building Construction Services Agreement, the Contractor confirms that
the Contract Time is a reasonable period for performing the Work.
(b) The Contractor shall not knowingly, except by agreement with or instruction of the
Owner in writing, prematurely commence operations on the Project site or elsewhere
prior to the effective date of insurance to be furnished by the Contractor as required by
Article 11. The date of commencement of the Work shall not be changed by the effective
date of insurance required by Article 11.
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(c) Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces,
materials, and equipment, and shall achieve Substantial Completion within the Contract
Time. If the Contractor fails or refuses to complete the Work within the Contract Time as
specified in the Bid Proposal form, the Building Construction Services Agreement, or in
any proper extension of the Contract Time granted by the Owner, then the Contractor
agrees, as a part of the consideration for the awarding of the Contract, to pay to the
Owner the amount of liquidated damages (hereinafter called the “Stipulated Amount”) as
stipulated in the Bid Proposal form and the Building Construction Services Agreement
for each calendar day that the Contractor has not Substantially Completed the Work after
the expiration of the Contract Time provided. The Stipulated Amount is not to be
considered as a penalty, but shall be deemed, taken, or treated as reasonable liquidated
damages, fixed and agreed upon by and between the Contractor and the Owner because
of the impracticality and extreme difficulty of fixing and ascertaining the actual damages
the Owner would sustain in the event of the Contractor’s late completion of the Project,
and the stipulated amount is agreed to be the daily amount of damages that the Owner
would sustain. The Stipulated Amount, as it accrues, will be retained from any portion of
the Contract Sum due or that may become due to the Contractor. In the event the portion
of the Contract Sum retained by the Owner is insufficient to recover the Stipulated
Amount, then the Contractor or the Contractor’s Surety shall pay to the Owner any
additional liquidated damages due that are in excess of the funds remaining unpaid in the
Contract Sum. The Owner shall be the sole judge as to whether or not the Work has been
Substantially Completed within the calendar days allotted, which shall include the
original Contract Time and any proper extension of the Contract Time granted in writing
by the Owner. Should the Contractor dispute the Owner's determination of liquidated
damages due, however, or should the Contractor, or the Contractor’s agents or assigns,
institute any legal action against the Owner to enforce rights under the Contract
Documents, then this Subparagraph 8.2(c) shall not be construed to prevent the Owner
from seeking full recovery for any and all actual damages suffered by the Owner and
attributable to the Contractor, as an alternative to all liquidated damages due.
8.3 DELAYS AND EXTENSIONS OF TIME
(a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect
of the Owner or Architect/Engineer, or of an employee of either, or of a separate
contractor employed by the Owner, or by changes ordered in the Work, or by labor
disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond
the Contractor’s control, or by delay authorized by the Owner pending a claim, or by
other causes which the Architect/Engineer determines may justify delay, then the
Contract Time shall be extended by Change Order for such reasonable time as the
Architect/Engineer and Owner may determine.
(b) Claims relating to Contract Time and time extensions shall be made in accordance with
the applicable provisions of Paragraph 4.3.
(c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE
CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO
ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE
CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY
ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY
DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR
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INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR
UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK,
INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN
PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR FAULT OF
THE OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S
REPRESENTATIVE, AN EXTENSION OF THE CONTRACT TIME UNDER
SUBPARAGRAPH 8.3(a) BEING THE CONTRACTOR’S SOLE REMEDY.
(d) The Owner shall have the right to occupy, without prejudice to the right of either party,
any completed or largely completed portions of the structure or Work, notwithstanding
the fact that the Contract Time for completing all or a portion of the Work may not have
expired. Partial occupancy and use shall not be deemed as an acceptance of the Work
taken or used.
(e) The Contractor shall promptly suspend the Work when either the Contractor or the
Owner is ordered to do so by a court order from a court having lawful jurisdiction, and
the Contractor will not be entitled to additional compensation by virtue of any delays
resulting from the court order. The Contractor will also not be liable to the Owner for a
delay caused in fact by the Work being suspended by a court order.
(f) The Architect/Engineer, with the consent of the Owner, shall have the authority to
suspend the Work, in whole or in part, for such period or periods as the
Architect/Engineer deems necessary due to unusual or severe weather conditions as are
considered unfavorable for the suitable prosecution of the Work, or due to failure on the
part of the Contractor to correct conditions considered unsafe for workmen or the general
public. If it should become necessary to stop the Work for an indefinite period, the
Contractor shall store all materials in such a manner that they will not obstruct or impede
the public unnecessarily or become damaged in any way, and shall take every precaution
to prevent damage or deterioration of the Work performed. In cases of suspension of the
Work under this Subparagraph, the Contractor shall also provide suitable drainage about
the Work and erect temporary structures where necessary. The Contractor shall not
suspend the Work in whole or in part without written authority from the
Architect/Engineer or the Owner, and shall resume the Work promptly when notified by
the Architect/Engineer or the Owner to resume operations.
(g) In the event of a delay that is the responsibility of the Contractor or any of the
Subcontractors, for which the Contractor is not entitled to a time extension under the
provisions of this Contract, the Owner may direct that the Work be accelerated by means
of overtime, additional crews or additional shifts, or resequencing. This acceleration shall
be at no cost to the Owner and will continue until the Contract Time is restored. In the
event of a delay for which the Contractor is entitled to a time extension, as determined by
the Architect/Engineer, Owner may similarly direct acceleration and the Contractor
agrees to perform same on the basis that the Contractor will be reimbursed only to the
extent described in Subparagraph 4.3(i). THE CONTRACTOR EXPRESSLY WAIVES
ANY OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS
LOSS OF LABOR PRODUCTIVITY OR EFFICIENCY.
ARTICLE 9 PAYMENTS AND COMPLETION
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9.1 CONTRACT SUM
The Contract Sum is stated in the Building Construction Services Agreement and, including
authorized adjustments, is the total amount of compensation payable by the Owner to the
Contractor for the performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
Before the first Application for Payment, the Contractor shall submit to the
Architect/Engineer a 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
Architect/Engineer may require. This schedule, when approved by the Architect/Engineer
and the Owner, shall be used as a basis for the Contractor's Application for Payment. The
schedule of values shall follow the trade division of the Specifications. Contractor's
Application for Payment shall be filed on the current version of AIA Form G702
(Application and Certificate for Payment), as approved by the Owner.
9.3 APPLICATIONS FOR PAYMENT
(a) At least ten (10) days before the date established for each progress payment, the
Contractor shall submit to the Architect/Engineer an itemized Application for Payment
for Work completed in accordance with the schedule of values. The Application shall be
notarized, if required, and supported by data substantiating the Contractor’s right to
payment as the Owner or Architect/Engineer may require, including but not limited to
copies of requisitions from Subcontractors and material suppliers, and reflecting the
applicable retainage as required in the Contract Documents. Contractor's Application for
Payment shall also provide other supporting documentation as the Owner or the other
applicable provisions of the Contract Documents may require.
(b) Applications for Payment may not include requests for payment of amounts the
Contractor does not intend to pay to a Subcontractor because of a good faith dispute,
unless the Contractor complies with Clause 5.3(b) (2) of these General Conditions and
the Contractor’s Payment Bond Surety consents in writing to payment to the Contractor
of the funds deemed to be in dispute.
(c) Unless otherwise provided in the Contract Documents, progress payments shall include
payment for materials and equipment delivered and suitably stored at the Project site for
subsequent incorporation into the Work within thirty (30) days after delivery to the
Project site. If approved in advance by the Owner, payment may similarly be made for
materials and equipment suitably stored away from the Project site at a location agreed
upon in writing. Payment for costs incurred in storage of materials or equipment away
from the Project site will NOT be made by Owner unless:
(1) the Owner has given prior approval of such off-site storage in writing;
(2) the materials or equipment are stored in a bonded warehouse located in Denton
County and identified with the Project for which they are stored, as evidenced by
warehouse receipts and appropriate documents of title; and
(3) the materials or equipment stored off-site will be incorporated into the Work within
thirty (30) days after delivery. STORAGE IN FACILITIES OF THE
MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR
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PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR
APPROVAL OF SUCH STORAGE IN WRITING.
(d) The Contractor warrants that title to all Work covered by an Application for Payment will
pass to the Owner no later than the time of payment. The Contractor 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
Contractor, Subcontractors, material suppliers, or other persons or entities making a claim
by reason of having provided labor, materials, and equipment relating to the Work.
(e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior
to an approved schedule for delivery to the Project site shall be classified as an “early
delivery.” All early delivery materials or equipment must have the express written
permission of the Owner to be stored on the Project site. If any unauthorized early
delivery occurs, Contractor shall, at Contractor’s expense or at the expense of the
responsible Subcontractor or Supplier, cause such early delivery to be removed from the
Project site and stored off-site until required at the Project site. All costs of labor,
transportation and storage will be included as part of the expense. If the Contractor fails
or refuses to remove unauthorized early delivery materials, the Owner may cause such
materials to be removed at the Contractor's sole expense, and amounts may be withheld
from the Contractor's Application for Payment to reimburse the Owner for any costs
incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE
RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY
DELIVERY MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR
ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT.
Any materials or equipment classified as early delivery will not be approved for payment
as stored materials prior to thirty (30) days before the incorporation of the materials or
equipment into the Work, unless storage and payment at an earlier date is expressly
approved in writing by the Owner.
(f) If the Contract Sum is equal to or less than $25,000.00 and performance and payment
bonds are not furnished by the Contractor, no payment applied for will be payable under
the Contract until the Work has been Finally Completed and accepted.
9.4 CERTIFICATES FOR PAYMENT
(a) The Architect/Engineer will, within ten (10) days after receipt of the Contractor’s
Application for Payment, either issue to the Owner a Certificate for Payment, with a copy
to the Contractor, for such amount as the Architect/Engineer determines is properly due,
or notify the Contractor and Owner in writing of the Architect/Engineer’s reasons for
withholding certification in whole or in part as provided in
(a) City of Denton General Conditions for Building Construction.
(b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version
of AIA Form G702 (Application and Certificate for Payment) as approved by the Owner.
(c) The issuance of a Certificate for Payment will constitute a representation by the
Architect/Engineer to the Owner, based on the Architect/Engineer’s observations at the
site and the data comprising the Application for Payment, that the Work has progressed
to the point indicated and that, to the best of the Architect/Engineer’s knowledge,
information and belief, quality of the Work is in accordance with the Contract
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Documents. The foregoing representations are subject to an evaluation of the Work for
conformance with the Contract Documents upon Substantial and Final Completion, to
results of subsequent tests and inspections, to minor deviations from the Contract
Documents correctable prior to Final Completion and to specific qualifications expressed
by the Architect/Engineer. The issuance of a Certificate for Payment will further
constitute a representation that the Contractor is entitled to payment in the amount
certified, subject to the Owner’s approval. The issuance of a Certificate for Payment is
not a representation that the Architect/Engineer has:
(1) made exhaustive 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 from Subcontractors and material suppliers
and other data requested by the Owner to substantiate the Contractor’s right to
payment; or
(4) made examination to ascertain how or for what purpose the Contractor has used
money previously paid on account of the Contract Sum.
(d) Whenever the Application for Payment for Work done since the last previous Application
for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a
percentage of the Application, less applicable retainage, to the Contractor within thirty
(30) days following Owner’s receipt and approval of the Certificate for Payment certified
by the Architect/Engineer. The Application may include acceptable nonperishable
materials delivered to the Work or stored as provided for in Paragraph 9.3(c) and the
payment will be allowed on the net invoice value, less taxes and applicable retainage.
(e) The City is required to withhold retainage for public works contracts in which the total
contract price estimate at the time of execution is more than $400,000; however, this
requirement is applied by the City for all public works contracts in excess of $50,000.
The City may require varying percentage withholding amounts; however, the City
requires five percent. The retainage will be withheld by the Owner from each progress
payment until final completion of the Work by the Contractor, approval of final
completion by the Architect/Engineer, and final acceptance of the Work by the Owner.
Unless otherwise required by state law, the retainage percentage as specified above is
based upon the original Contract Sum, and will not be affected in the event the original
Contract Sum is subsequently increased or decreased by Change Order.
(f) No progress payments shall be made on contracts where performance and payment bonds
are not required or furnished. In such instances, payment for the Work performed will be
made upon final completion and acceptance by the Owner of all Work.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
(a) The Architect/Engineer or the Owner may decide not to certify payment and may
withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary
to protect the Owner’s interest, if in the Architect/Engineer’s or Owner’s opinion the
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representations to the Owner required by Subparagraph 9.4(b) cannot be made. If the
Architect/Engineer or the Owner is unable to certify payment in the amount of the
Application, the Architect/Engineer or the Owner will notify the Contractor as provided
in Subparagraph 9.4(a). If the Contractor and Architect/Engineer or the Owner cannot
agree on a revised amount, the Architect/Engineer will promptly issue a Certificate for
Payment for the amount for which the Architect/Engineer is able to make the required
representations to the Owner. The Architect/Engineer or the Owner may also decide not
to certify payment or, because of subsequently discovered evidence or subsequent
observations, may nullify the whole or a part of a Certificate for Payment previously
issued to such extent as may be necessary, in the Architect/Engineer’s or Owner’s
opinion, to protect the Owner from loss because of:
(1) defective or nonconforming Work not remedied;
(2) third party claims filed or reasonable evidence indicating probable filing of such
claims;
(3) failure of the Contractor to make payments properly to Subcontractors or for 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 another 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;
(7) persistent failure to carry out the Work in accordance with the Contract Documents;
or
(8) mathematical or other errors that are discovered in the Application for Payment.
(b) When each of the above reasons that existed for withholding certification are removed or
remedied, certification will be made for amounts previously withheld.
(c) The Owner may, at its option, offset any progress payment or final payment under the
Contract Documents against any debt (including taxes) lawfully due to the Owner from
the Contractor, regardless of whether the amount due arises pursuant to the terms of the
Contract Documents or otherwise and regardless of whether or not the debt due to the
Owner has been reduced to judgment by a court.
9.6 PROGRESS PAYMENTS
(a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make
payment in the manner and within the time provided in the Contract Documents, and
shall so notify the Architect/Engineer. The Owner shall not be liable for interest on any
late or delayed progress payment or final payment caused by any claim or dispute, any
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discrepancy in quantities, any failure to provide supporting documentation or other
information required with the Application for Payment or as a precondition to payment
under the Contract Documents, or due to any payment the Owner or the
Architect/Engineer has a right to withhold or not certify under the Contract Documents.
Notwithstanding the foregoing, the Owner may refuse to make payment on any
Certificate for Payment (including, without limitation, the final Certificate for Payment)
for any default under the Contract Documents, including but not limited to those defaults
set forth in Subparagraph 9.5(a), Clauses (1) through (7). The Owner shall not be deemed
in default by reason of withholding payment while any Contractor default remains
uncured.
(b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the
Owner, out of the amount paid to the Contractor on account of each Subcontractor’s
portion of the Work, the amount to which said Subcontractor is entitled, reflecting
percentages actually retained from payments to the Contractor on account of such
Subcontractors portion of the Work. The Contractor shall, by appropriate agreement with
each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors
in similar manner.
(c) The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable,
information regarding percentages of completion or amounts applied for by the
Contractor and action taken thereon by the Architect/Engineer and the Owner on account
of portions of the Work done by such Subcontractor.
(d) Neither the Owner nor the Architect/Engineer shall have an obligation to pay or to see to
the payment of money to a Subcontractor except as may otherwise be required by law.
That obligation belongs to the Contractor or, in the event of the Contractor’s failure to
pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph
11.3.
(e) Payment to material suppliers shall be treated in a manner similar to that provided in
Subparagraphs 9.6(b), (c), and (d).
(f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of
the Project by the Owner shall not constitute acceptance of Work not performed in
accordance with the Contract Documents.
9.7 SUBSTANTIAL COMPLETION
(a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the
date certified by the Architect/Engineer when construction is sufficiently completed in
accordance with the City Of Denton General Conditions For Building Construction.
(a) the Contract Documents such that the Owner may beneficially occupy and use the Work,
or designated portions of the Work, for the purposes for which it is intended and only
trivial and insignificant items remain which do not affect the Work as a whole.
(b) When the Contractor considers that the Work, or the portion of the Work which the
Owner agrees to accept separately, is Substantially Complete, the Contractor shall
prepare and submit to the Architect/Engineer a comprehensive list of remaining items to
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be completed or corrected. The Contractor shall proceed promptly to complete and
correct items on the list (hereinafter called the “punch list”). Failure to include an item on
the punch list does not alter the responsibility of the Contractor to complete all Work in
accordance with the Contract Documents. Upon receipt of the punch list, the
Architect/Engineer will make an inspection to determine whether the Work, or designated
portion of the Work, is Substantially Complete. If the Architect/Engineer’s inspection
discloses any item, whether or not included on the punch list, which is not in accordance
with the requirements of the Contract Documents and which renders the Work inspected
not Substantially Complete the Contractor shall, before issuance of the Certificate of
Substantial Completion, complete or correct the item upon notification by the
Architect/Engineer. The Contractor shall then submit a request for another inspection by
the Architect/Engineer to determine Substantial Completion. When the Work or
designated portion of the Work is Substantially Complete, the Architect/Engineer will
prepare a Certificate of Substantial Completion which shall establish the date of
Substantial Completion, shall establish responsibilities of the Owner and the Contractor
for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix
the time within which the Contractor shall finish all items on the punch list
accompanying the Certificate.
(c) The Certificate of Substantial Completion shall be submitted to the Owner and the
Contractor for their written acceptance of responsibilities assigned to them in the
Certificate.
(d) Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Contractor and certification by the Architect/Engineer, the Owner shall
make payment, reflecting adjustment in retainage, if any, for the Work, or portion of the
Work, as provided in the Contract Documents.
9.8 PARTIAL OCCUPANCY OR USE
(a) 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 Supplemental Agreement with
the Contractor, provided such occupancy or use is consented to by the insurer as required
under Subparagraph 11.2(e) 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 Contractor 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 correction of the Work and commencement of
warranties required by the Contract Documents. When the Contractor considers a portion
Substantially Complete, the Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to
partial occupancy or use shall not be unreasonably withheld. The stage of the
(a) progress of the Work shall be determined by written agreement between the Owner and
Contractor or, if no agreement is reached, by decision of the Architect/Engineer.
(b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and
Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to
be used in order to determine and record the condition of the Work.
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(c) 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
Contract Documents.
9.9 FINAL COMPLETION AND FINAL PAYMENT
(a) 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 Architect/Engineer,
accompanied by the Owner’s representative, will promptly make final inspection and,
when the Architect/Engineer finds the Work acceptable under the Contract Documents
and the Contract Documents fully performed, the Architect/Engineer will promptly issue
a final Certificate for Payment stating that to the best of the Architect/Engineer’s
knowledge, information and belief, and on the basis of the Architect/Engineer’s
observations and inspections, the Work has been completed in accordance with terms and
conditions of the Contract Documents and that the entire balance found to be due the
Contractor and noted in said final Certificate is due and payable. The
Architect/Engineer’s final Certificate for Payment will constitute a further representation
that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Contractor’s
being entitled to final payment have been fulfilled. Owner will normally make final
payment within thirty (30) days after Owner's receipt and approval of the final Certificate
for Payment. Warranties required by the Contract Documents shall commence on the date
of Substantial Completion of the Work, unless otherwise provided by separate agreement
between the Owner and the Contractor.
(b) Neither final payment nor any remaining retained percentage shall become due until the
Contractor submits to the Architect/Engineer:
(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 Contract Documents to remain
in force after final payment is currently in effect and will not be cancelled or allowed
to expire until at least thirty (30) days prior written notice has been given to the
Owner;
(3) a written statement that the Contractor knows of no substantial reason that the
insurance will not be renewable to cover the period required by the Contract
Documents;
(4) a consent of surety 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 Contract, to the extent and in such form as may be
designated by the Owner.
(c) As a precondition to final payment by the Owner under this Contract, the Contractor's
affidavit under Clause (b)(1) shall state that the Contractor has paid each of his
subcontractors, laborers or materialmen in full for all labor and materials provided to him
for the Work under this Contract. In the event the Contractor has not paid each of his
subcontractors, laborers or materialmen in full, the Contractor shall state in the affidavit
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the amount owed and the name of each subcontractor, laborer or materialmen to whom
such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE
REQUIRED TO EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF FINAL
PAYMENT AND RELEASE AS A PRECONDITION TO RECEIPT OF FINAL
PAYMENT.
(d) If, after Substantial Completion of the Work, final completion of the Work is materially
delayed through no fault of the Contractor or by issuance of Change Orders affecting
final completion and the Architect/Engineer confirms the delay, the Owner shall, upon
application by the Contractor and certification by the Architect/Engineer, and without
terminating the Contract, 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 Contract 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 Contractor to
the Architect/Engineer prior to certification of payment. Payment shall be made under
terms and conditions governing final payment, except that it shall not constitute a waiver
of claims.
(e) The acceptance by the Contractor of the final payment shall operate as and shall be a
complete release of the Owner from all claims or liabilities under the Contract, for
anything done or furnished or relating to the Work or the Project, or for any act or neglect
of the Owner relating to or connected with the Work or the Project.
ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL
COMPLIANCE
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the performance of the Contract, and will
comply with all applicable City, County, State and Federal health and safety regulations.
10.2 SAFETY OF PERSONS AND PROPERTY
(a) The Contractor 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, under care, custody or control of the Contractor or the Contractor’s
Subcontractors or Sub-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.
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(b) The Contractor 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.
(c) The Contractor shall erect and maintain, as required by existing conditions and
performance of the Contract, 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.
(d) When use or storage of explosives or other hazardous materials or equipment or unusual
methods are necessary for execution of the Work, the Contractor shall exercise utmost
care and carry on such activities under supervision of properly qualified personnel.
(e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner
shall have the right to pre-approve the use of any explosives on the Project; the
Contractor shall not assume in its bid that permission to use explosives will be granted.
The Owner shall NOT be liable for any claim for additional time or compensation as a
result of the Owner's denial of permission to use explosives. Where use of explosives is
permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY
RESPONSIBLE for the determination as to whether explosives shall actually be used,
and for any result from the use, handling or storage of explosives, and shall
INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its
officers, agents and employees, and the Architect/Engineer against any and all claims,
lawsuits, judgments, costs or expenses for personal injury (including death), property
damage or other harm for which recovery of damages is sought, suffered by any person
or persons, as the result of the use, handling or storage of the explosives by the
Contractor or any Subcontractor, REGARDLESS OF WHETHER SAID USE,
HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF
WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY
BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS,
EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT/ENGINEER AND
ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of
conflict with any other indemnity paragraph in this Contract, this paragraph controls. This
indemnity paragraph is intended solely for the benefit of the parties to this Contract and is
not intended to create or grant any rights, contractual or otherwise, to or for any other
person or entity. The Contractor shall furnish the Owner and the Architect/Engineer with
evidence of insurance sufficient to cover possible damage or injury, which insurance
shall either include the Owner and the Architect/Engineer as additional insureds or be
sufficiently broad in coverage as to fully protect the Owner and the Architect/Engineer.
All explosives shall be stored in a safe and secure manner, under the care of a competent
watchman at all times, and all storage places shall be marked clearly "DANGEROUS-
EXPLOSIVES." The method of storing and handling explosives and highly flammable
materials shall conform to Federal and State laws, City of Denton ordinances, and the
City of Denton Fire Department regulations. The Contractor shall notify any
telecommunications and public utility company and any private property owners having
structures in the proximity of the Project Site of the Contractor’s intention to use
explosives, and such notice shall be given sufficiently in advance to enable the
telecommunications and public utility companies and private property owners to take
such steps as they may deem necessary to protect their property from injury. The notice
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shall not relieve the Contractor of any responsibility for damage resulting from any
blasting operations.
(f) The Contractor shall promptly remedy damage and loss (other than damage or loss
insured under property insurance required by the Contract Documents) to property
referred to in Clauses 10.2(a)(2) and 10.2(a)(3) caused in whole or in part by the
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 Contractor is responsible
under Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to acts or
omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed
by either of them, or by anyone for whose acts either of them may be liable, and not
attributable to the fault or negligence of the Contractor or any of its Subcontractors. The
foregoing obligations of the Contractor are in addition to the Contractor’s obligations
under Paragraph 3.l9. To the extent that any such damage or loss may be covered by
property insurance or other insurance required by the Contract Documents, the Owner
and the Contractor shall exercise their best efforts to make a claim and obtain recovery
from the insurers to provide for the cost, in whole or in part, of the repair work or to
provide for reimbursement for such damage or loss.
(g) The Contractor shall designate a responsible member of the Contractor’s organization at
the site whose duty shall be the prevention of accidents. This person shall be the
Contractor’s superintendent unless otherwise designated by the Contractor in writing to
the Owner and Architect/Engineer.
(h) The Contractor shall not load or permit any part of the Work or the Project site to be
loaded so as to endanger its safety.
10.3 EMERGENCIES
In an emergency affecting safety, health, or security of persons or property, the Contractor
shall act, at the Contractor’s discretion, to prevent threatened damage, injury, or loss.
Additional compensation or extension of time claimed by the Contractor on account of an
emergency shall be determined as provided in Paragraph 4.3 and Article 7.
10.4 PUBLIC CONVENIENCE AND SAFETY
(a) The Contractor shall place materials stored about the Work and shall conduct the Work
at all times in a manner that causes no greater obstruction to the public than is
considered necessary by the Owner. Sidewalks or streets shall not be obstructed, except
by special permission of the Owner. The materials excavated and the construction
materials or plant used in the performance of the Work shall be placed in a manner that
does not endanger the Work or prevent free access to all fire hydrants, water mains and
appurtenances, water valves, gas valves, manholes for the telephone, telegraph signal or
electric conduits, wastewater mains and appurtenances, and fire alarm or police call
boxes in the vicinity.
(b) The Owner reserves the right to remedy any neglect on the part of the Contractor in
regard to public convenience and safety which may come to the Owner's attention, after
twenty-four (24) hours notice in writing to the Contractor. In case of an emergency, the
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Owner shall have the right to immediately remedy any neglect without notice. In either
case, the cost of any work done by the Owner to remedy the Contractor’s neglect shall
be deducted from the Contract Sum. The Contractor shall notify the City Traffic
Control Department when any street is to be closed or obstructed. The notice shall, in
the case of major thoroughfares or street upon which transit lines operate, be forty-eight
(48) hours in advance. The Owner reserves the right to postpone or prohibit any closure
or obstruction of any streets or thoroughfares to the extent necessary for the safety and
benefit of the traveling public. The Contractor shall, when directed by the
Architect/Engineer or the Owner, keep any street or streets in condition for
unobstructed use by City departments. When the Contractor is required to construct
temporary bridges or make other arrangements for crossing over ditches or around
structures, the Contractor’s responsibility for accidents shall include the roadway
approaches as well as the crossing structures.
10.5 BARRICADES, LIGHTS AND WATCHMEN
If the Work is carried on or adjacent to any street, alley or public place, the Contractor
shall, at the Contractor’s own cost and expense, furnish, erect and maintain sufficient
barricades, fences, lights and danger signals, shall provide sufficient watchmen, and shall
take such other precautionary measures as are necessary for the protection of persons or
property and of the Work. All barricades shall be painted in a color that will be visible at
night, shall indicate in bold letters thereon the Contractor's name and shall be illuminated
by lights from sunset to sunrise. The term “lights,” as used in this Paragraph, shall mean
flares, flashers, or other illuminated devices. A sufficient number of barricades with
adequate markings and directional devices shall also be erected to keep vehicles from being
driven on or into any Work under construction. The Contractor will be held responsible for
all damage to the Work due to failure of barricades, signs, lights and watchmen to protect
the Work. Whenever evidence is found of such damage, the Architect/Engineer may order
the damaged portion immediately removed and replaced by the Contractor at Contractor's
cost and expense. The Contractor's responsibility for maintenance of barricades, signs, and
lights, and for providing watchmen, shall not cease until the Project has been finally
accepted by the Owner.
10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED
In case it is necessary to change or move the property of the Owner or of any
telecommunications or public utility, such property shall not be removed or interfered with
until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any
public or private utilities to enter upon the Project site for the purpose of making such
changes or repairs of their property that may become necessary during the performance of
the Work. The Owner reserves the right of entry upon the Project site for any purpose,
including repairing or relaying sewer and water lines and appurtenances, repairing
structures, and for making other repairs, changes, or extensions to any of the Owner's
property. The Owner's actions shall conform to the Contractor's current and approved
schedule for the performance of the Work, provided that proper notification of schedule
requirements has been given to the Owner by the Contractor.
10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS
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When existing storm sewers or drains have to be taken up or removed, the Contractor shall
at his own expense provide and maintain temporary outlets and connections for all public
and private storm sewers and drains. The Contractor shall also take care of all storm
sewage and drainage which will be received from these storm drains and sewers; for this
purpose, the Contractor shall provide and maintain, at the Contractor’s own expense,
adequate pumping facilities and temporary outlets or diversions. The Contractor shall, at
the Contractor’s own expense, construct such troughs, pipes, or other structures necessary
and shall be prepared at all times to dispose of storm drainage and sewage received from
these temporary connections until such time as the permanent connections are built and in
service. The existing storm sewers and connections shall be kept in service and maintained
under the Contract, except where specified or ordered to be abandoned by the
Architect/Engineer. All storm water and sewage shall be disposed of in a satisfactory
manner so that no nuisance is created and that the Work under construction will be
adequately protected.
10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER;
ELECTRICITY FOR THE PROJECT
(a) When the Contractor desires to use the Owner's water in connection with the Work, the
Contractor shall make complete and satisfactory arrangements with the Denton Water
Utilities Department and shall be responsible for the cost of the water the Contractor
uses. Where meters are used, the charge will be at the regular established rate; where no
meters are used, the charge will be as prescribed by City ordinance, or where no
ordinance applies, payment shall be based on estimates made by the Denton Water
Utilities Department.
(b) The Contractor shall make complete and satisfactory arrangements for electricity and
metered electrical connections with the Owner or with Denton Municipal Electric in the
event that separately metered electrical connections are required for the Project. The
Contractor shall pay for all electricity used in the performance of the Work through
separate metered electrical connections obtained by the Contractor through the City of
Denton.
10.9 USE OF FIRE HYDRANTS
The Contractor, Subcontractors, and any other person working on the Project shall not
open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire
hydrant, stop valve, or stop cock, or tap any water main belonging to the Owner, unless
duly authorized to do so by the Denton Water Utilities Department in accordance with the
Denton City Code.
10.10 ENVIRONMENTAL COMPLIANCE
(a) The Contractor and its Subcontractors are deemed to have made themselves familiar
with and at all times shall comply with all applicable federal, state or local laws,
rules, regulations, ordinances, and rules of common law now in effect (including any
amendments now in effect), relating to the environment, Hazardous Substances or
exposure to Hazardous Substances, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§
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9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et
seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic
Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A.
§§ 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any
current judicial or administrative interpretation of these laws, rules, regulations,
ordinances, or rules of common law, including but not limited to any judicial or
administrative order, consent decree, or judgment affecting the Project.
(b) In the event the Contractor encounters on the site materials reasonably believed to be
a Hazardous Substance that have not been rendered harmless, and removal of such
materials is not a part of the scope of Work required under the Contract Documents,
the Contractor shall immediately stop Work in the affected area and report in writing
the facts of such encounter to the Architect/Engineer and the Owner. Work in the
affected area shall not thereafter be resumed except by written order of the Owner
unless and until the material is determined not to be a Hazardous Substance or the
Hazardous Substance is remediated. The Owner may choose to remediate the
Hazardous Substance with a separate contractor or through a Change Order with the
Contractor. If the Owner determines that the Hazardous Substance exists in the
affected area due to the fault or negligence of the Contractor or any of its
Subcontractors, the Contractor shall be responsible for remediating the condition at
the sole expense of the Contractor in accordance with the Contractor’s APPROVED
Spill Remediation Plan. An extension of the Contract Time for any delay in the
progress schedule caused as a result of the discovery and remediation of a Hazardous
Substance may be granted by the Owner only if all remaining Work on the Project
must be suspended and the delay cannot be made up elsewhere in the progress
schedule. Any request for an extension of the Contract Time related to the discovery
and remediation of a Hazardous Substance is subject to the provisions of Paragraph
4.3 and Article 8.
(c) The Contractor shall be responsible for identification, abatement, cleanup, control,
removal, remediation, and disposal of any Hazardous Substance brought into or upon
the site by the Contractor or any Subcontractor or Supplier. The Contractor shall
obtain any and all permits necessary for the legal and proper handling, transportation,
and disposal of the Hazardous Substance and shall, prior to undertaking any
abatement, cleanup, control, removal, remediation, and disposal, notify the Owner
and the Architect/Engineer so that they may observe the activities; provided,
however, that it shall be the Contractor’s sole responsibility to comply with all
applicable laws, rules, regulations, or ordinances governing the activities.
(d) Spill Prevention Plan. At least seventy-two (72) hours prior to commencing
performance of any of the Work at the Project site, the Contractor shall submit to the
Owner for review and approval a Spill Prevention and Response Plan (SPRP) meeting
the requirements of federal and state law, rules, and regulations. The SPRP shall be
specially designed for the Contractor's planned work methods and procedures. The
SPRP shall be designed to complement all applicable safety standards, fire prevention
regulations, and pollution prevention policies and procedures. The SPRP shall include
estimates of the quantity and rate of flow should equipment fail, and detail
containment or diversionary structures to prevent spills from leaving the site or
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migrating into adjacent properties or navigable waters. The SPRP shall include
methods of recovery of spilled materials and all applicable twenty-four (24) hour
emergency phone numbers, including without limitation that of the Owner’s Project
Manager or other designated representative. The Contractor shall not commence any
field work prior to approval of such plan by the Owner. The following additional
rules shall apply with respect to spills caused by the Contractor or a Subcontractor:
(1) The Contractor shall immediately report any spill or release at the Project site,
whether or not it is associated with this Contract, to the Owner’s Project Manager
or other designated representative. Thereafter, within two (2) working days after
the occurrence of such event, the Contractor shall submit a written report
describing such event in a degree of detail reasonably acceptable to the Owner.
(2) The Contractor shall immediately respond in accordance with the SPRP in the
event of a spill.
(3) The Contractor shall dispose of spilled materials in accordance with EPA and
Texas Commission on Environmental Quality (TCEQ) regulations and any other
applicable federal, state, or local laws, rules, or regulations. In connection with
such disposals, the Contractor shall use only those transporters and disposal
facilities that are approved in advance in writing by the Owner. A copy of all
transport manifests for the spilled materials shall be obtained and retained in the
Contractor’s records for reference purposes, to be provided upon request of the
Architect/Engineer, the Owner, or any governmental regulatory agency with
jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT,
AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE
RESPONSIBILITY OF THE CONTRACTOR.
(4) For purposes of this Subparagraph (e), the term “spill” includes any kind of
environmental discharge or release.
(e) Clean Air Management Plan. The Contractor shall comply with the Clean Air
Management Plan submitted to and approved by the Owner during the contractor
selection process. The Owner reserves the right, at the Contractor’s sole expense, to
require the removal or retrofitting of any equipment used in the course of construction
that does not comply with the Plan submitted to and approved by the Owner.
(f) The Contractor shall deposit surplus or waste excavation or other materials removed
as part of the Work at a legal disposal site in accordance with all applicable state,
federal, and local laws, rules, regulations, and ordinances. The Contractor shall
submit to the Owner for review and approval all planned disposal sites or proposed
uses for the surplus or waste excavation or other materials prior to removal of any
excavation or other material from the Project site. A copy of all transport manifests
for surplus or waste excavation or other materials shall be obtained and retained in the
Contractor’s records for reference purposes, to be provided upon request to the
Architect/Engineer, the Owner, or any governmental regulatory agency with
jurisdiction over the matter.
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(g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from
TCEQ for construction of the Project under regulations contained in 40 CFR Part 122,
as amended, pursuant to the Clean Water Act, 33 U.S.C.A. §§1251 et seq. These
regulations require the filing of a notice of intent to obtain and abide by the general
storm water permit for construction activities promulgated by EPA, including but not
limited to cleaning, grading, and excavation that disturb the applicable amount of
total land area. In addition, the Contractor shall comply with all regulations of the
Owner relating to storm water and storm water runoff management at the Project site
pursuant to Chapter 19, Article IX, Denton City Code, as amended.
(h) The Contractor shall not install any materials in the performance of the Work that
contain asbestos or asbestos-related material such as hydrated mineral silicate,
including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite,
whether friable or non-friable.
(i) The Owner reserves the right in its sole option to exercise the following remedies
(without waiving the right to pursue the imposition of any civil or criminal fines or
penalties that may be imposed under state, federal, or local laws or ordinances), at no
additional cost to the Owner and without an extension of the Contract Time, in the
event the Contractor fails or refuses after seven (7) days advance written notice from
the Owner to comply with the provisions of this Paragraph 10.10, the terms of the
SPRP, the terms of the Clean Air Management Plan, any storm water permit or other
environmental permit issued in connection with the Work, or any applicable
environmental law, rule, regulation, or ordinance:
(1) suspend all or any portion of the Work until the noncompliance is corrected, or
until a detailed plan to achieve compliance within a reasonably prompt period of
time is prepared by the Contractor and approved by the Owner;
(2) if the Contractor fails to properly address the noncompliance within the time
stipulated by the Owner, perform the necessary remediation or correction work
and backcharge the Contractor for the cost of the remediation or correction; or
(3) terminate the Contract for cause as provided in Article 13.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR’S INSURANCE
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in
the actual contract shall prevail.
11.2 PROPERTY INSURANCE
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in
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the actual contract shall prevail.
11.3 ‘UMBRELLA’ LIABILITY INSURANCE
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in
the actual contract shall prevail.
11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in
the actual contract shall prevail.
11.6 PERFORMANCE AND PAYMENT BONDS
(a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the
execution and delivery of the Construction Services Agreement, furnish and file with the
Owner in the amounts required in this Paragraph, the surety bonds described in Clauses
(a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the
City of Denton and the provisions of Chapter 2253, Texas Government Code, as
amended; each bond shall be signed by the Contractor, as Principal, and by an established
bonding company, as surety, meeting the requirements of Subparagraph 11.3(c) and
approved by the Owner. The surety bonds shall be accompanied by an appropriate
Power-of-Attorney clearly establishing the extent and limitations of the authority of each
signer to so sign:
(1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the
total Contract Sum, guaranteeing the full and faithful execution of the Work and
performance of the Contract in accordance with Plans, Specifications and all other
Contract Documents, including any Amendments thereof, for the protection of the
Owner. This bond shall also provide for the repair and maintenance of all defects due
to faulty materials and workmanship that appear within a period of two (2) year from
the date of final completion and acceptance of the improvements by the Owner or
lesser or longer periods as may be otherwise designated in the Contract Documents.
(2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total
Contract Sum, guaranteeing the full and prompt payment of all claimants supplying
labor or materials in the prosecution of the Work provided for in the Contract
Documents and any Amendments thereto, and for the use and protection of each
claimant.
(b) If the Contract Sum, including Owner-accepted alternates and allowances, if any, is
greater than $100,000, Performance in 100% of the Contract Sum are mandatory and
shall be provided by the Contractor. If the Contract Sum is greater than $50,000 but less
than or equal to $100,000, only a Payment Bond in 100% of the Contract amount is
mandatory; provided, however, that the Contractor may elect to furnish a Performance
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Bond in the same amount if the Contractor so chooses. If the Contract Sum is less than or
equal to $25,000, the Contractor may elect not to provide Performance and Payment
Bonds; provided that in such event, no money will be paid to the Contractor until final
completion and acceptance of all work by Owner. If the Contractor elects to provide
Performance and Payment Bonds 100% of the total Contract Sum, progress payments in
accordance with these General Conditions shall be disbursed.
(c) No surety will be accepted by the Owner who is now in default or delinquent on any
bonds or who is a party to any litigation against the Owner. All bonds shall be made and
executed on the Owner's standard forms, shall be approved by the Owner, and shall be
executed by not less than one corporate surety that is authorized and admitted to do
business in the State of Texas, is licensed by the State of Texas to issue surety bonds, is
listed in the most current United States Department of the Treasury List of Acceptable
Sureties, and is otherwise acceptable to the Owner. Each bond shall be executed by the
Contractor and the surety, and shall specify that legal venue for enforcement of each
bond shall lie exclusively in Denton County, Texas. Each surety shall designate an agent
resident in Denton County, Texas to whom any requisite statutory notices may be
delivered and on whom service of process may be had in matters arising out of the
suretyship.
(d) The person or persons, partnership, company, firm, Limited Liability Company,
association, corporation, or other business entity to whom the Contract is awarded shall,
within ten (10) days after such award, sign the required Contract with the Owner and
provide the necessary surety bonds and evidence of insurance as required under the
Contract Documents. No Contract shall be binding on the Owner until it has been
approved as to form by the City Attorney, executed for the Owner by the City Manager,
the performance and payment bonds and evidence of insurance have been furnished as
required by the Contract Documents, and the fully executed contract has been delivered
to the Contractor.
(e) The failure of the Contractor to execute the Contract or deliver the required statutory
bonds and evidence of insurance within ten (10) days after the Contract is awarded or as
soon thereafter as the Owner can assemble and deliver the Contract shall constitute a
material breach of the Contractor’s bid proposal and the Owner may rescind the Contract
award and collect or retain the proceeds of the bid security. By reason of the uncertainty
of the market prices or materials and labor, and it being impracticable and difficult to
determine accurately the amount of damages occurring to the Owner by reason of the
Contractor's failure to execute and furnish the statutory bonds and to sign the Contract
within ten (10) days, the filing of a bid proposal with the accompanying bid security will
be considered as an acceptance of this Subparagraph 11.3(e). In the event the Owner
should re-advertise for bids, the defaulting Contractor shall not be eligible to bid, and the
lowest responsible bid obtained in the re-advertisement shall be the bid referred to in this
Paragraph.
ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK
12.1 UNCOVERING OF WORK
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(a) If a portion of the Work is covered contrary to the Architect/Engineer’s request or to
requirements specifically expressed in the Contract Documents, the Work must, if
required in writing by the Architect/Engineer, be uncovered for the
Architect/Engineer’s observation and be replaced at the Contractor’s expense without
change in the Contract Time.
(b) If a portion of the Work has been covered which the Architect/Engineer has not
specifically requested to observe prior to it being covered, the Architect/Engineer may
request to see such Work and it shall be uncovered by the Contractor. If such Work is
in accordance with the Contract Documents, costs of uncovering and replacement shall,
by appropriate Change Order, be charged to the Owner. If any Work is not in
accordance with the Contract Documents, the Contractor shall pay the costs of
uncovering, repair, replacement 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.
12.2 CORRECTION OF WORK
(a) The Contractor shall promptly correct Work rejected by the Architect/Engineer as
failing to conform to the requirements of the Contract Documents, whether observed
before or after Substantial Completion and whether or not fabricated, installed or
completed. The Contractor shall bear costs of correcting such rejected Work, including
additional testing and inspections and compensation for the Architect/Engineer’s
services and expenses made necessary thereby.
(b) If any of the Work is found to be defective or nonconforming with the requirements of
the Contract Documents, the Contractor shall correct it promptly after receipt of written
notice from the Architect/Engineer or the Owner to do so unless the Owner has
previously given the Contractor a written acceptance or waiver of the defect or
nonconformity. The Contractor’s obligation to correct defective or nonconforming
Work remains in effect for:
(1) two years after the date of Substantial Completion of the Work or designated
portion of the Work;
(2) two years after the date for commencement of warranties established by agreement
in connection with partial occupancy under Subparagraph 9.8(a); or
(3) the stipulated duration of any applicable special warranty required by the Contract
Documents.
(c) The one-year period described in Clauses (b)(1) and (b)(2) shall be extended with
respect to portions of the Work performed, repaired, or corrected after Substantial
Completion by the period of time between Substantial Completion and the actual
completion of the Work.
(d) The obligations of the Contractor under this Paragraph 12.2 shall survive final
acceptance of the Work and termination of this Contract. The Owner shall give notice
to the Contractor promptly after discovery of a defective or nonconforming condition in
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the Work. The one-year period stated in Clauses (b)(1) and (b)(2) does not limit the
ability of the Owner to require the Contractor to correct latent defects or
nonconformities in the Work, which defects or nonconformities could not have been
discovered through reasonable diligence by the Owner or the Architect/Engineer at the
time the Work was performed or at the time of inspection for certification of
Substantial Completion or Final Completion. The two year period also does not relieve
the Contractor from liability for any defects or deficiencies in the Work that may be
discovered after the expiration of the two year correction period.
(e) The Contractor shall remove from the Project site portions of the Work which are not in
accordance with the requirements of the Contract Documents and are neither corrected
by the Contractor nor accepted by the Owner.
(f) If the Contractor fails to correct defective or nonconforming Work within a reasonable
time after notice from the Owner or the Architect/Engineer, the Owner may correct it in
accordance with Paragraph 2.4. If the Contractor does not proceed with correction of
defective or nonconforming Work within a reasonable time fixed by written notice
from the Architect/Engineer, the Owner may remove or replace the defective or
nonconforming Work and store the salvageable materials or equipment at the
Contractor’s expense. If the Contractor does not pay costs of removal and storage
within ten days after written notice, the Owner may, upon ten (10) additional days
written notice, sell the materials and equipment at auction or at private sale and shall
account for the proceeds after deducting costs and damages that should have been borne
by the Contractor, including compensation for the Architect/Engineer’s services and
expenses made necessary as a result of the sale. If the proceeds of sale do not cover
costs which the Contractor should have borne, the Contract Sum shall be reduced by the
deficiency. If payments due to the Contractor then or thereafter are not sufficient to
cover the deficiency, the Contractor shall pay the difference to the Owner.
(g) The Contractor shall bear the cost of correcting destroyed or damaged construction of
the Owner or separate contractors, whether the construction is completed or partially
completed, that is caused by the Contractor’s correction or removal of Work which is
not in accordance with the requirements of the Contract Documents.
(h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of
limitation with respect to other obligations which the Contractor might have under the
Contract Documents. Establishment of the one-year time period as described in
Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct
the Work, and has no relationship to the time within which the obligation to comply
with the Contract Documents may be sought to be enforced, nor to the time within
which proceedings may be commenced to establish the Contractor’s liability with
respect to the Contractor’s obligations other than specifically to correct the Work.
(i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the
provisions of Article 12 to the same extent as Work originally performed or installed.
12.3 ACCEPTANCE OF NONCONFORMING WORK
The Owner may, in the Owner’s sole discretion, accept Work which is not in accordance
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with the requirements of the Contract Documents instead of requiring its removal and
correction, in which case the Contract Sum will be reduced as appropriate and equitable.
The adjustment will be accomplished whether or not final payment has been made.
ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY
SUSPENSION
13.1 FINAL COMPLETION OF CONTRACT
The Contract will be considered completed, except as provided in any warranty or
maintenance stipulations, bond, or by law, when all the Work has been finally completed,
the final inspection is made by the Architect/Engineer, and final acceptance and final
payment is made by the Owner.
13.2 WARRANTY FULFILLMENT
Prior to the expiration of the specified warranty period provided for in the Contract
Documents, the Architect/Engineer will make a detailed inspection of the Work and will
advise the Contractor and the Contractor’s Surety of the items that require correction. The
Architect/Engineer will make a subsequent inspection and if the corrections have been
properly performed, the Architect/Engineer will issue a letter of release on the maintenance
stipulations to the Contractor and the Surety. If for any reason the Contractor has not made
the required corrections before the expiration of the warranty period, the warranty
provisions as provided for in the Contract Documents shall remain in effect until the
corrections have been properly performed and a letter of release issued.
13.3 TERMINATION BY THE OWNER FOR CAUSE
(a) Notwithstanding any other provision of these General Conditions, the Work or any
portion of the Work may be terminated immediately by the Owner for any good cause
after giving seven (7) days advance written notice and opportunity to cure to the
Contractor, including but not limited to the following causes:
(1) Failure or refusal of the Contractor to start the Work within ten (10) days after the
date of written notice by the Owner to commence the Work.
(2) A reasonable belief that the progress of the Work being made by the Contractor is
insufficient to complete the Work within the specified time.
(3) Failure or refusal of the Contractor to provide sufficient and proper equipment or
construction forces to properly execute the Work in a timely manner.
(4) A reasonable belief that the Contractor has abandoned the Work.
(5) A reasonable belief that the Contractor has become insolvent, bankrupt, or
otherwise financially unable to carry on the Work.
(6) Failure or refusal on the part of the Contractor to observe any requirements of the
Contract Documents or to comply with any written orders given by the
Architect/Engineer or the Owner as provided for in the Contract Documents.
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(7) Failure or refusal of the Contractor to promptly make good any defects in materials
or workmanship, or any defects of any nature, the correction of which has been
directed in writing by the Architect/Engineer.
(8) A reasonable belief by the Owner that collusion exists or has occurred for the
purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is
being perpetrated on the Owner in connection with the construction of Work under
the Contract.
(9) Repeated and flagrant violation of safe working procedures.
(10) The filing by the Contractor of litigation against the Owner prior to completion of
the Work.
(b) When the Work or any portion of the Work is terminated for any of the causes
itemized above or for any other cause except termination for convenience pursuant to
Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner,
discontinue the Work or portion of the Work as the Owner shall designate, whereupon
the surety shall, within fifteen (15) days after the written notice of termination for
cause has been served upon the Contractor and the surety or its authorized agents,
assume the obligations of the Contractor for the Work or that portion of the Work
which the Owner has ordered the Contractor to discontinue and may:
(1) perform the Work with forces employed by the surety;
(2) with the written consent of the Owner, tender a replacement contractor to take over
and perform the Work, in which event the surety shall be responsible for and pay
the amount of any costs required to be incurred for the completion of the Work that
are in excess of the amount of funds remaining under the Contract as of the time of
the termination; or
(3) with the written consent of the Owner, tender and pay to the Owner in settlement
the amount of money necessary to finish the balance of uncompleted Work under
the Contract, correct existing defective or nonconforming Work, and compensate
the Owner for any other loss sustained as a result of Contractor's default.
In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety
shall assume the Contractor's place in all respects, and the amount of funds
remaining unpaid under the Contract shall be paid by the Owner for all Work
performed by the surety or the replacement contractor in accordance with the terms
of the Contract Documents, subject to any rights of the Owner to deduct any costs,
damages, or liquidated or actual damages that the Owner may have incurred,
including but not limited to additional fees and expenses of the Architect/Engineer
and attorneys fees, as a result of such termination.
(c) The balance of the Contract Sum remaining at the time of the Contractor’s default and
of the termination shall become due and payable to the surety as the Work progresses,
subject to all of the terms, covenants, and conditions of the Contract Documents. If the
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surety does not, within the time specified in Subparagraph 13.3(b), exercise its
obligation to assume the obligations of the Contract, or that portion of the Contract
which the Owner has ordered the Contractor to discontinue, then the Owner shall have
the power to complete the Work by contract or otherwise, as it may deem necessary.
The Contractor agrees that the Owner shall have the right to take possession of or use
any or all of the materials, plant, tools, equipment, supplies, and property of every kind
provided by the Contractor for the purpose of the Work, and to procure other tools,
equipment, labor, and materials for the completion of the Work, and to charge to the
account of the Contractor the expenses of completion and labor, materials, tools,
equipment, and incidental expenses. The expenses incurred by the Owner to complete
the Work shall be deducted by the Owner out of the balance of the Contract Sum
remaining unpaid to or unearned by the Contractor. The Contractor and the surety
shall be liable to the Owner for any costs incurred in excess of the balance of the
Contract Sum for the completion and correction of the Work, and for any other costs,
damages, expenses (including but not limited to additional fees of the
Architect/Engineer and attorney’s fees), and liquidated or actual damages incurred as a
result of the termination.
(d) The Owner shall not be required to obtain the lowest bid for the Work of completing
the Contract as described in Subparagraph 13.3(c), but the expenses to be deducted
from the Contract Sum shall be the actual cost of such Work. In case the Owner’s
expense is less than the sum which would have been payable under the Contract, if the
same had been completed by the Contractor, then the Owner may pay to the
Contractor (or the Surety, in the event of a complete termination for cause) the
difference in the cost, provided that the Contractor (or the Surety) shall not be entitled
to any claim for damages or for loss of anticipated profits. In case such expenses for
completion shall exceed the amount which would have been payable under the
Contract if the same had been completed by the Contractor, then the Contractor and
his Sureties shall pay the amount of the excess to the Owner on notice from the Owner
for excess due. When only a particular part of the Work is being carried on by the
Owner by contract or otherwise under the provisions of this Subparagraph, the
Contractor shall continue the remainder of the Work in conformity with the terms of
the Contract, and in such manner as not to hinder or interfere with the performance of
workmen employed and provided by the Owner.
(e) The right to terminate this Contract for the convenience of the Owner (including but
not limited to nonappropriation of funding) is expressly retained by the Owner. In the
event of termination for convenience, the Owner shall deliver at least ten (10) days
advance written notice of termination for convenience to the Contractor. Upon the
Contractor’s receipt of such written notice, the Contractor shall cease the performance
of the Work and shall take reasonable and appropriate action to secure and protect the
Work in place. The Contractor shall then be reimbursed by the Owner in accordance
with the terms and provisions of the Contract Documents, not to exceed actual labor
costs incurred, materials stored at the Project site or away from the Project site as
approved by the Owner but not yet paid for, plus actual, reasonable, and documented
termination charges, if any, paid by the Contractor in connection with the Work in
place which is completed and in conformance with the Contract Documents to the date
of termination for convenience. No amount shall ever be due to the Contractor for lost
or anticipated profits.
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13.4 TEMPORARY SUSPENSION OF THE WORK
(a) The Work or any portion of the Work may be temporarily suspended by the Owner
immediately upon written notice to the Contractor for any reason, including but not
limited to:
(1) the causes described in Clauses 13.1(a)(1) through (a)(10) above;
(2) where other provisions in the Contract Documents require or permit temporary
suspension of the Work;
(3) situations where the Work is threatened by, contributes to, or causes an immediate
threat to public health, safety, or security; or
(4) other unforeseen conditions or circumstances.
(b) The Contractor shall immediately resume the temporarily suspended Work when
ordered in writing by the Owner to do so. The Owner shall not under any
circumstances be liable for any claim of the Contractor arising from a temporary
suspension due to a cause described in Clause (a)(1) above; provided, however, that in
the case of a temporary suspension for any of the reasons described under Clauses
(a)(2) through (a)(4), where the Contractor is not a contributing cause of the
suspension under one of those Clauses or where the provision of the Contract
Documents in question specifically provides that the suspension is at no cost to the
Owner, the Owner will make an equitable adjustment for the following items,
provided that a claim is properly made by the Contractor under Subparagraph 4.3 of
these General Conditions:
(1) an equitable extension of the Contract Time, not to exceed the actual delay caused
by the temporary suspension as determined by the Architect/Engineer and the
Owner;
(2) an equitable adjustment to the Contract Sum for the actual, necessary, and
reasonable costs of properly protecting any Work that is finished or partially
finished during the period of the temporary suspension (no profit and overhead
shall be allowed on top of these costs); and
(3) if it becomes necessary to move equipment from the Project site and then return it
to the Project site when the Work is ordered to be resumed, an equitable
adjustment to the Contract Sum for the actual, necessary, and reasonable cost of
these moves; provided, however, that no adjustment shall be due if the equipment
is moved to another Project site of the Owner.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS
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(a) This Contract shall be governed by the laws and case decisions of the State of Texas,
without regard to conflict of law or choice of law principles of Texas or of any other
state.
(b) This Contract is entered into subject to and controlled by the Charter and ordinances of
the City of Denton and all applicable laws, rules, and regulations of the State of Texas
and the Government of the United States of America. The Contractor shall, during the
performance of the Work, comply with all applicable City codes and ordinances, as
amended, and all applicable State and Federal laws, rules and regulations, as amended.
14.2 SUCCESSORS AND ASSIGNS
The Owner and the Contractor respectively bind themselves, their partners, successors,
assigns, and legal representatives to the promises, covenants, terms, conditions, and
obligations contained in the Contract Documents. The Contractor shall not assign, transfer,
or convey its interest or rights in the Contract, in part or as a whole, without written consent
of the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance
without the Owner’s written consent, the Contractor shall nevertheless remain legally
responsible for all obligations under the Contract Documents. The Owner shall not assign
any portion of the Contract Sum due or to become due under this Contract without the
written consent of the Contractor, except where assignment is compelled or allowed by
court order, the terms of the Contract Documents, or other operation of law.
14.3 WRITTEN NOTICE
Except as otherwise provided in Article 16, any notice, payment, statement, or demand
required or permitted to be given under this Contract by either party to the other may be
effected by personal delivery in writing or by mail, postage prepaid to the Project Manager
or Superintendent of either party, or to an officer, partner, or other designated representative
of either party. Mailed notices shall be addressed to the parties at an address designated by
each party, but each party may change its address by written notice in accordance with this
section. Mailed notices shall be deemed communicated as of three (3) days after mailing.
14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER
(a) The duties and obligations imposed on the Contractor by the Contract Documents and
the rights and remedies available to the Owner under the Contract Documents shall be in
addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise
imposed or made available by law.
(b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the
Owner under the Contract Documents, nor shall any action or failure to act by the Owner
constitute approval of or acquiescence in a breach of the Contract by Contractor, except as
may be specifically agreed in writing by Change Order or Supplemental Agreement.
14.5 INTEREST
The Owner shall not be liable for interest on any progress or final payment to be made under
the Contract Documents, except as may be provided by the applicable provisions of the
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Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to
Paragraph 9.6(a) of these General Conditions.
14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL
INTEREST IN ANY CONTRACT OF THE OWNER
No officer or employee of the Owner shall have a financial interest, direct or indirect, in any
Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the
Owner of any land, materials, supplies or services, except on behalf of the Owner as an
officer or employee. Any violation of this article shall constitute malfeasance in office, and
any officer or employee of Owner guilty thereof shall thereby forfeit his office or position.
Any violation of this section, with the knowledge, express or implied, of the person,
persons, partnership, company, firm, association or corporation contracting with the Owner
shall render the Contract involved voidable by the Owner's City Manager or City Council.
14.7 VENUE
This Contract is deemed to be performed in Denton County, Texas, and if legal action is
necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas.
14.8 INDEPENDENT CONTRACTOR
In performing the Work under this Contract, the relationship between the Owner and the
Contractor is that of an independent contractor. The Contractor shall exercise independent
judgment in performing the Work and is solely responsible for setting working hours,
scheduling or prioritizing the Work flow and determining the means and methods of
performing the Work, subject only to the requirements of the Contract Documents. No term
or provision of this Contract shall be construed as making the Contractor an agent, servant,
or employee of the Owner, or making the Contractor or any of the Contractor’s employees,
agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's
compensation, which the Owner provides to its employees.
14.9 NONDISCRIMINATION
As a condition of this Contract, the Contractor covenants that he will take all necessary
actions to insure that, in connection with any work under this Contract, the Contractor and
its Subcontractors will not discriminate in the treatment or employment of any individual or
groups of individuals on the grounds of race, color, religion, national origin, age, sex, or
handicap unrelated to job performance, either directly, indirectly or through contractual or
other arrangements. The Contractor shall also comply with all applicable requirements of
the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213, as amended. In this
regard, the Contractor shall keep, retain and safeguard all records relating to his Contract or
Work performed thereunder for a minimum period of three (3) years from final Contract
completion, with full access allowed to authorized representatives of the Owner, upon
request, for purposes of evaluating compliance with this and other provisions of the
Contract.
14.10 GIFTS TO PUBLIC SERVANTS
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(a) The Owner may terminate this Contract immediately if the Contractor has offered,
conferred, or agreed to confer any benefit on a City of Denton employee or official
that the City of Denton employee or official is prohibited by law from accepting.
(b) For purposes of this Article, "benefit" means anything reasonably regarded as
pecuniary gain or pecuniary advantage, including benefit to any other person in
whose welfare the beneficiary has a direct or substantial interest, but does not include
a contribution or expenditure made and reported in accordance with law.
(c) Notwithstanding any other legal remedies, the Owner may require the Contractor to
remove any employee of the Contractor from the Project who has violated the
restrictions of this Article or any similar State or Federal law, and obtain
reimbursement for any expenditures made to the Contractor as a result of the
improper offer, agreement to confer, or conferring of a benefit to a City of Denton
employee or official.
ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS
By execution of the Building Construction Services Agreement, the Contractor grants the Owner
the right to audit, at the Owner's election, all of the Contractor's records and billings relating to
the performance of the Work under the Contract Documents. The Contractor agrees to retain its
Project records for a minimum of five (5) years following completion of the Work. The Owner
agrees that it will exercise the right to audit only at reasonable hours. City may review any and
all of the services performed by Contractor under this Contract. Any payment, settlement,
satisfaction, or release made or provided during the course of performance of this Contract shall
be subject to City’s rights as may be disclosed by an audit under this section.
ARTICLE 16 NOTICE OF CONTRACT CLAIM
This Contract is subject to the provisions of the Denton City Code, as amended, relating to
requirements for filing a notice of a breach of contract claim against City. Contractor shall
comply with the requirements of this ordinance as a precondition of any litigation relating to this
Contract, in addition to all other requirements in this Contract related to claims and notice of
claims.
Should a conflict arise between any of the contract documents, it shall be resolved with the
following order of precedence (if applicable). In any event, the final negotiated contract
shall take precedence over any and all contract documents to the extent of such conflict.
1. Final negotiated contract
2. RFP/Bid documents
3. City’s standard terms and conditions
4. Purchase order
5. Supplier terms and conditions
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EXHIBIT E
INSURANCE REQUIREMENTS AND
WORKERS’ COMPENSATION REQUIREMENTS
Upon contract execution, all insurance requirements shall become contractual obligations,
which the successful contractor shall have a duty to maintain throughout the course of this
contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor
shall provide and maintain until the contracted work has been completed and accepted by the
City of Denton, Owner, the minimum insurance coverage as indicated hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of insurance
including any applicable addendum or endorsements, containing the contract number and
title of the project. Contractor may, upon written request to the Purchasing Department, ask
for clarification of any insurance requirements at any time; however, Contractor shall not
commence any work or deliver any material until he or she receives notification that the
contract has been accepted, approved, and signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall comply
with the following general specifications, and shall be maintained in compliance with these
general specifications throughout the duration of the Contract, or longer, if so noted:
Each policy shall be issued by a company authorized to do business in the State of Texas
with an A.M. Best Company rating of at least A or better.
Any deductibles or self-insured retentions shall be declared in the proposal. If requested
by the City, the insurer shall reduce or eliminate such deductibles or self-insured
retentions with respect to the City, its officials, agents, employees and volunteers; or, the
contractor shall procure a bond guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees
and volunteers.
That such insurance is primary to any other insurance available to the Additional
Insured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not operate to increase the insurer's
limit of liability.
Cancellation: City requires 30 day written notice should any of the policies described
on the certificate be cancelled or materially changed before the expiration date.
Contract 5963
Should any of the required insurance be provided under a claims made form, Contractor
shall maintain such coverage continuously throughout the term of this contract and,
without lapse, for a period of three years beyond the contract expiration, such that
occurrences arising during the contract term which give rise to claims made after
expiration of the contract shall be covered.
Should any of the required insurance be provided under a form of coverage that includes
a general annual aggregate limit providing for claims investigation or legal defense costs
to be included in the general annual aggregate limit, the Contractor shall either double the
occurrence limits or obtain Owners and Contractors Protective Liability Insurance.
Should any required insurance lapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receives satisfactory
evidence of reinstated coverage as required by this contract, effective as of the lapse date.
If insurance is not reinstated, City may, at its sole option, terminate this agreement
effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall additionally
comply with the following marked specifications, and shall be maintained in compliance with
these additional specifications throughout the duration of the Contract, or longer, if so noted:
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than
$1,000,000.00 shall be provided and maintained by the Contractor. The policy shall
be written on an occurrence basis either in a single policy or in a combination of
underlying and umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is
used:
Coverage A shall include premises, operations, products, and completed
operations, independent contractors, contractual liability covering this
contract and broad form property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations,
products and completed operations, independent contractors and property
damage resulting from explosion, collapse or underground (XCU) exposures.
Contract 5963
Broad form contractual liability (preferably by endorsement) covering this
contract, personal injury liability and broad form property damage liability.
[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined
Single Limits (CSL) of not less than $500,000 either in a single policy or in a
combination of basic and umbrella or excess policies. The policy will include bodily
injury and property damage liability arising out of the operation, maintenance and use of
all automobiles and mobile equipment used in conjunction with this contract.
Satisfaction of the above requirement shall be in the form of a policy endorsement for:
any auto, or
all owned hired and non-owned autos.
[X] Workers’ Compensation Insurance
Contractor shall purchase and maintain Workers’ Compensation insurance which, in
addition to meeting the minimum statutory requirements for issuance of such insurance,
has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each
employee, and a $500,000 policy limit for occupational disease. The City need not be
named as an "Additional Insured" but the insurer shall agree to waive all rights of
subrogation against the City, its officials, agents, employees and volunteers for any work
performed for the City by the Named Insured. For building or construction projects, the
Contractor shall comply with the provisions of Attachment 1 in accordance with
§406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers’
Compensation Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of
the work under this contract, an Owner's and Contractor's Protective Liability insurance
policy naming the City as insured for property damage and bodily injury which may arise
in the prosecution of the work or Contractor's operations under this contract. Coverage
shall be on an “occurrence" basis and the policy shall be issued by the same insurance
company that carries the Contractor's liability insurance. Policy limits will be at least
$500,000.00 combined bodily injury and property damage per occurrence with a
$1,000,000.00 aggregate.
[ ] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to
the contractor or if a contractor leases or rents a portion of a City building. Limits of not
less than each occurrence are required.
Contract 5963
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
[X] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be
provided. Such policy shall include as "Named Insured" the City of Denton and all
subcontractors as their interests may appear.
[ ] Environmental Liability Insurance
Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this
contract.
[ ] Riggers Insurance
The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be provided by
a Rigger’s Liability endorsement on the existing CGL coverage; through and Installation Floater
covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger’s Liability Coverage
form. Said coverage shall mirror the limits provided by the CGL coverage
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside
the premises, burglary of the premises, and employee fidelity. The employee fidelity
portion of this coverage should be written on a “blanket” basis to cover all employees,
including new hires. This type insurance should be required if the contractor has access
to City funds. Limits of not less than $ each occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts and
specific service agreements. If such additional insurance is required for a specific
contract, that requirement will be described in the "Specific Conditions" of the contract
specifications.
Contract 5963
ATTACHMENT 1
[X] Workers’ Compensation Coverage for Building or Construction Projects for
Governmental Entities
A. Definitions:
Certificate of coverage ("certificate")-A copy of a certificate of insurance, a
certificate of authority to self-insure issued by the commission, or a coverage
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory
workers' compensation insurance coverage for the person's or entity's employees
providing services on a project, for the duration of the project.
Duration of the project - includes the time from the beginning of the work on the
project until the contractor's/person's work on the project has been completed and
accepted by the governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) - includes all
persons or entities performing all or part of the services the contractor has
undertaken to perform on the project, regardless of whether that person contracted
directly with the contractor and regardless of whether that person has employees.
This includes, without limitation, independent contractors, subcontractors, leasing
companies, motor carriers, owner-operators, employees of any such entity, or
employees of any entity which furnishes persons to provide services on the project.
"Services" include, without limitation, providing, hauling, or delivering equipment or
materials, or providing labor, transportation, or other service related to a project.
"Services" does not include activities unrelated to the project, such as food/beverage
vendors, office supply deliveries, and delivery of portable toilets.
B. The contractor shall provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any overage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all employees
of the Contractor providing services on the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental entity
prior to being awarded the contract.
D. If the coverage period shown on the contractor's current certificate of coverage ends
during the duration of the project, the contractor must, prior to the end of the
coverage period, file a new certificate of coverage with the governmental entity
showing that coverage has been extended.
E. The contractor shall obtain from each person providing services on a project, and
provide to the governmental entity:
1. a certificate of coverage, prior to that person beginning work on the project, so
the governmental entity will have on file certificates of coverage showing
coverage for all persons providing services on the project; and
Contract 5963
2. no later than seven days after receipt by the contractor, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project.
F. The contractor shall retain all required certificates of coverage for the duration of the
project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail or
personal delivery, within 10 days after the contractor knew or should have known, of
any change that materially affects the provision of coverage of any person providing
services on the project.
H. The contractor shall post on each project site a notice, in the text, form and manner
prescribed by the Texas Workers' Compensation Commission, informing all persons
providing services on the project that they are required to be covered, and stating
how a person may verify coverage and report lack of coverage.
I. The contractor shall contractually require each person with whom it contracts to
provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and payroll
amounts and filing of any coverage agreements, which meets the statutory
requirements of Texas Labor Code, Section 401.011(44) for all of its employees
providing services on the project, for the duration of the project;
2. provide to the contractor, prior to that person beginning work on the project, a
certificate of coverage showing that coverage is being provided for all employees
of the person providing services on the project, for the duration of the project;
3. provide the contractor, prior to the end of the coverage period, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
4. obtain from each other person with whom it contracts, and provide to the
contractor:
a. a certificate of coverage, prior to the other person beginning work on the
project; and
b. a new certificate of coverage showing extension of coverage, prior to the end
of the coverage period, if the coverage period shown on the current certificate
of coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the project
and for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the person knew or should have known, of any change that
materially affects the provision of coverage of any person providing services on
Contract 5963
the project; and
7. Contractually require each person with whom it contracts, to perform as required
by paragraphs (1) - (7), with the certificates of coverage to be provided to the
person for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all employees
of the contractor who will provide services on the project will be covered by
workers' compensation coverage for the duration of the project, that the coverage
will be based on proper reporting of classification codes and payroll amounts, and
that all coverage agreements will be filed with the appropriate insurance carrier or, in
the case of a self-insured, with the commission's Division of Self-Insurance
Regulation. Providing false or misleading information may subject the contractor to
administrative penalties, criminal penalties, civil penalties, or other civil actions.
K. The contractor’s failure to comply with any of these provisions is a breach of
contract by the contractor which entitles the governmental entity to declare the
contract void if the contractor does not remedy the breach within ten days after
receipt of notice of breach from the governmental entity.
Contract 5963
EXHIBIT F
Certificate of Interested Parties Electronic Filing
In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the
Government Code. The law states that the City may not enter into this contract unless the
Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the
Contractor submits the signed contract. The Texas Ethics Commission has adopted rules
requiring the business entity to file Form 1295 electronically with the Commission.
Contractor will be required to furnish an original notarized Certificate of Interest Parties
before the contract is awarded, in accordance with Government Code 2252.908.
The contractor shall:
1. Log onto the State Ethics Commission Website at :
https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm
2. Register utilizing the tutorial provided by the State
3. Print a copy of the completed Form 1295
4. Enter the Certificate Number on page 2 of this contract.
5. Sign and notarize the Form 1295
6. Email the notarized form to purchasing@cityofdenton.com with the contract number in the
subject line. (EX: Contract 1234 – Form 1295)
The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after
Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics
Commission’s website within seven business days.
RFP 5963
Construction of Substation Precast Security Fences
For the City of Denton
From:
Walsh’s Hawk Construction Co. LLC
5002 Highway 380
Princeton, TX 75407
John Walsh
972-547-6652 office
972-542-0201 fax
www.hawkprecast.com
John@hawkprecast.com
Contract 5963 Exhibit G
Item
#Construction Unit Estimated
Quantity
Unit of
Measure Unit Price
1
10' Security/screening wall material, pier design, and complete
construction including stockpiling, cleanup, regrading and
compacting (assume 18" x 14' pier)
27,500 LF $ 199.50
2 Mow strip construction (includes drainage notches)27,500 LF $ 12.00
Units that will apply as needed to adjust for geotechnical conditions and for drainage:
3 Increase 18" diameter pier depth 3,500 LF $ 10.00
4 Decrease 18" diameter pier depth 500 LF $ 10.00
5 Increase in price for 24" diameter pier 1 EA $ 375.00
6 Increase 24" diameter pier depth 1 LF $ 38.00
7 Decrease 24" diameter pier depth 1 LF $ 38.00
8 Rock drilling / excavation 1 CF $ 210.00
9 Payment and Performance Bonds for Project (per $100k)59 EA $ 2,500.00
SECTION III - Delivery Timeframe
10 7
11 35
SECTION IV - Expedited Payment Discounts
Payment Terms
Additional
Discount %
Invoice Paid in 15 days 0%
RFP #5963 PRICING SHEET FOR DME SUBSTATION PRE-CAST SECURITY FENCE
CONSTRUCTION SERVICES
Estimated time between notice to proceed for a project until work begins (calendar days)
Normal time to complete a typical 2100 linear foot project (calendar days)
Page 1 of 1
Contract 5963 Exhibit G
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Certificate Of Completion
Envelope Id: 8707883E9C3347EC9A0494AB2D5AE2B7 Status: Completed
Subject: City Council Docusign Item - 5963 - rev
Source Envelope:
Document Pages: 92 Signatures: 4 Envelope Originator:
Certificate Pages: 6 Initials: 0 Karen E. Smith
AutoNav: Enabled
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Time Zone: (UTC-06:00) Central Time (US & Canada)
karen.smith@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: Original
3/22/2016 12:33:43 PM
Holder: Karen E. Smith
karen.smith@cityofdenton.com
Location: DocuSign
Signer Events Signature Timestamp
Karen E. Smith
karen.smith@cityofdenton.com
Assistant Purchasing Manager
City of Denton
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Pat Walsh
pat@hawkconst.com
President
Walsh's Hawk Construction
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John Knight
john.knight@cityofdenton.com
Deputy City Attorney
City of Denton
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Contracts Administration Supervisor
City of Denton
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George C. Campbell
george.campbell@cityofdenton.com
City Manager
City of Denton
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City Secretary
City of Denton
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Contracts Administration Supervisor
City of Denton
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Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM
Parties agreed to: Pat Walsh, Robin Fox
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