Substation Construction Services - IDQ-6085-Award/Ordinance/Pricing
Docusign City Council Transmittal Coversheet
File Name
Purchasing Contact
City Council Target Date
Granicus #
Ordinance #
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
6085
Karen Smith
Substation Construction Services -IDQ
11/8/16
RFP
RFP # 5142
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND CAN-FER UTILITY SERVICES, LLC
(RFP 6085)
THIS CONTRACT is made and entered into this date , by
and between Can-fer Utility Services, LLC, a corporation, whose address is
3340 Roy Orr Boulevard, Grand Prairie, TX 75050, 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# 6085 –
Substation Construction Services, a copy of which is on file at the office of Purchasing Agent
and incorporated herein for all purposes as “Exhibit B”. 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) City of Denton Request for Proposal # 6085 (Exhibit “B” on file at Office of
Purchasing Agent)
(c) General Provisions-Standard Terms and Conditions (Exhibit “C”);
(d) Insurance Requirements (Exhibit “D”);
(e) Certificate of Interested Parties Electronic Filing (Exhibit “E”);
(f) Individual Project Initiation Process (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 Contract in
the year and day first above written.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
November 8, 2016
RFP # 5142
“CONTRACTOR”
________________________
By:
AUTHORIZED SIGNATURE
TYPED NAME:
TITLE:
PHONE NUMBER
E-MAIL ADDRESS
Texas Ethic Commission
Certificate Number
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: _________________________
HOWARD MARTIN
INTERIM CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: _________________________________
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By: _________________________________
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Sr. Director - Business Operations
Can-Fer Utility Services, LLC
Roger Carter
972-484-4344
2016-131509
roger.carter@can-fer.com
RFP # 5142
EXHIBIT A
SPECIAL TERMS AND CONDITIONS
1. Total Contract Amount
The Contract total for services shall not exceed $17,620,000.
2. Contract Term
The contract term is for a one (1) year period. The City and the 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 provision of the
section titled “price adjustments”, or the section(s) titled “termination”. 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.
3. Pricing
Pricing shall be per Exhibit G attached.
4. Price Adjustments
Prices must be firm for a period of one year from date of contract award. After the first year,
adjustments to unit prices may be proposed at the start of any project in accordance with the
indices and methods that follow in this section. Any request for price adjustment must be based
on the, 1) U.S. Energy Information Administration (EIA) prior 52 week average for Midwest (PADD 2)
for retail diesel (on-highway) – all types 2) U.S Department of Labor, Bureau of Labor Statistics,
Employment Cost Index (ECI) for Total Compensation, Private Industry Construction Workers
(CIU2012300000000A) as found at (http://www.bls.gov). The price will be increased or
decreased based upon the annual percentage change in the ECI and/or diesel average. The
escalation will be determined annually at the renewal date. Should the ECI and/or diesel average
change exceed a minimum threshold value of +/-1%, then the stated eligible prices shall be
adjusted in accordance with the ECI and/or diesel change. The supplier should provide
documentation as percentage of each cost associated with the unit prices quoted for
consideration.
Base line pricing for labor and equipment are established in Exhibit G which will be used to
calculate price adjustments.
5. Retainage
The City is required to withhold retainage for public works contracts. The City may opt for
waive retainage for any project less than $400,000. Each Purchase Order issued will retain 5% of
the value. 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 Owner’s
Representative Engineer, and final acceptance of the Work by the Owner. Retainage will be
released upon 1) acceptance of the submission of a request for release by the Contract or that
includes a lien release and waiver and 2) a written consent from the surety.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
In the event that work on a project must be suspended by the City, for reasons not related to the
Contractors work, for more than 90 ninety days, they City may elect to partially release retainage
for the accrued construction units that are complete.
6. Payment and Performance Bonds
Contractor shall submit payment and performance bonds for 110% of each specific Substation
project before work commences on the City provided forms. Each project performance bond shall
be for two (2) years from the date of final completion and acceptance by the City. The bond value
will be based upon the project plan accepted by the City for each substation. Bonds shall be
submitted in accordance with Exhibit F.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
EXHIBIT C
GENERAL PROVISIONS- TERMS AND CONDITIONS FOR FACILITY
CONSTRUCTION SERVICES
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 (30) days after receipt of valid
invoices for which items or services have been received unless unusual circumstances arise.
The thirty (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 date is later.
Direct deposit for payments: Prime 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 (5) 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 Prime 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 Prime Contractor for construction
accomplished during the preceding calendar month on the basis of completed
construction certified to by the Prime Contractor and approved by the Owner and
Architect/Engineer solely for the purposes of payment. Provided, however, that such
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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
project shall be paid by the Owner to the Prime Contractor prior to completion of the
Project. Upon the approval by the Owner of the Prime Contractor’s "Final Invoice for
Payment” showing the total cost of the construction performed, the Owner shall make
payment to the Prime Contractor of all amounts to which the Prime 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 Prime Contractor.
B. The Prime 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 Prime Contractor is in default in respect of any of the
provisions of this Contract, and the Owner may withhold from the Prime Contractor the
amount of any claim by any third party against either the Prime Contractor or the Owner
based upon an alleged failure of the Prime Contractor to perform the work hereunder in
accordance with the provisions of this Contract. This includes, without limitation, the
alleged failure of the Prime Contractor to make payments to subcontractors.
4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR:
Upon award of the Contract, the Prime Contractor shall inform the Owner of the
subcontractors and material sources that will be used. Upon the completion by the Prime
Contractor of the construction of the Project, but prior to final payment to the Prime
Contractor, the Prime Contractor shall deliver to the Owner releases of all liens, and of rights
to claim any lien, from all manufacturers, materiamen 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 fully released from all such
claims.
5. PAYMENTS TO MATERIALMEN AND SUBCONTRACTORS:
The Prime Contractor shall pay each materialman, 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
materialman or each subcontractor.
6. REMEDIES:
A. Completion of Prime Contractor’s Default
If default shall be made by the Prime 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 Prime
Contractor and the Surety or Sureties upon the Prime Contractor's bond or bonds a
written notice requiring the Prime Contractor to cause such default to be corrected
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
forthwith. Unless within twenty (20) days after the service of such notice upon the Prime
Contractor such default shall be corrected or arrangements for the correction thereof
satisfactory to the Owner and/or Architect/Engineer shall be made by the Prime
Contractor or its Surety or Sureties, the Owner may take over the construction of the
Project and prosecute the same to completion by Contract or otherwise for the account
and at the expense of the Prime Contractor, and the Prime 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, supplies, and appliances which
may be situated at the site of the Project and for which the Owner has paid the prime
contractor. The Owner in such contingency may exercise any rights, claims or demands
which the Prime Contractor may have against third persons in connection with this
Contract and for such purpose the Prime 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 Prime 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 Prime Contractor the sum of FIVE HUNDRED
DOLLARS ($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 Prime Contractor is insufficient to pay in full any such liquidated damages,
the Prime Contractor shall pay promptly, after ten (10) days receipt of written
demand, to the Owner the amount necessary to effect such payment in full:
Provided, however, that the Owner shall promptly notify the Prime 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 Prime Contractor
to complete the construction of the Project within the time herein agreed upon.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor;
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(2) between the Owner and a Subcontractor or -subcontractor; or
(3) between any persons or entities other than the Owner and Prime Contractor.
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 partiall y completed, and includes all labor, materials,
equipment, and services provided or to be provided by the Prime Contractor, or any
Subcontractors, Sub-subcontractors, material suppliers, or any other entity for whom the
Prime Contractor is responsible, to fulfill the Prime 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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime
Contractor’s Bid.
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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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;
(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 Prime Contractor as provided in the Agreement.
(b) Execution of the Building Construction Services Agreement by the Prime Contractor is a
representation that the Prime Contractor has visited the site, has 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 Prime Contractor. The Contract Documents
are complementary, and what is required by one shall be as binding as if required by all;
performance by the Prime 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 Prime Contractor in dividing the Work among
Subcontractor(s) or in establishing the extent of Work to be performed by any trade.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 Prime
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.
(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) 0the Specifications and Drawings.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
1.3OWNERSHIP 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
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 PRIME 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime 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 Prime Contractor as scheduled and Prime Contractor is not prepared to accept or
act on such information or services, then Prime 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 Prime 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. Prime
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 Prime 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 Prime 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 Prime Contractor’s Applications for Payment.
2.3 OWNER’S RIGHT TO STOP THE WORK
If the Prime 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 Prime 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 Prime 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 Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
failure or refusal with diligence and promptness within fourteen (14) days after receipt of
written notice from the Owner, the Owner may correct the Prime 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 Prime Contractor from payments then or thereafter due to the
Prime Contractor. The cost of correction is subject to verification (but not approval) by the
Architect/Engineer. If payments then or thereafter due the Prime Contractor are not sufficient
to cover the cost of correction, the Prime 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 Prime Contractor, the Prime 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 Prime 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 Prime 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 “Prime Contractor” means the Prime Contractor or the Prime
Contractor’s authorized employees or representatives.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
CONTRACTOR
(a) The Prime 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, ambiguity, error, omission, conflict, or discrepancy the Prime Contractor
may discover. The Prime Contractor shall also verify all dimensions, field measurements,
and field conditions before laying out the Work. The Prime 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 Prime 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 Prime
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime Contractor shall also be
responsible to correct any failure of component parts to coordinate or fit properly into
final position as a result of Prime 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 Prime 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 Prime Contractor shall supervise and direct the Work, using the Prime Contractor’s
best skill and attention. The Prime 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 Prime Contractor shall be responsible to the Owner for the acts and omissions of the
Prime 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 Prime Contractor, or with any Subcontractor, and all other persons
or entities for which the Prime 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 Prime Contractor.
(c) The Prime 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 Prime
Contractor.
(d) The Prime 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 Prime Contractor's responsibility under this paragraph will
not in any way eliminate the Architect/Engineer's responsibility to the Owner under the
Architect/Engineer/Owner Agreement.
(e) Any Prime 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 any separate contractor, without the
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
Prime 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 Prime Contractor. The Prime Contractor is solely responsible for
any errors made in establishing or maintaining proper grades, lines, levels, or
benchmarks. Contractor 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 Prime 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 Prime Contractor shall enforce strict discipline and good order among the Prime
Contractor’s employees and all other persons carrying out the Contract. The Prime
Contractor shall not permit employment of unfit persons or persons not skilled in tasks
assigned to them.
(c) The Prime 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) residents of the City of Denton, Texas;
(2) residents of the County of Denton, Texas;
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 TWO (2) YEARS
AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK; OR, IF A
LATENT DEFECT IS DISCOVERED WITHIN TWO YEARS OF SUBSTATIONAL
COMPLETION OF THE ENTIRE WORK.
(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 Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
Denton permits required for the Project. The Owner will pay all service extension
charges, including tap fees, assessed by the Water Utilities Department.
(b) The Prime 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 Prime 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 Prime
Contractor observes that portions of the Contract Documents are at variance with
applicable laws, ordinances, construction codes, rules or regulations, the Prime
Contractor shall promptly notify the Architect/Engineer and the Owner in writing, and
necessary changes shall be accomplished by appropriate Amendment.
(d) If the Prime 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 Prime 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 Prime 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
Prime Contractor shall not be required to employ persons or entities against which the
Prime 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 Prime 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 Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(ii) changes in Contractor’s costs under Clause (b) (3);
(5) the Owner retains the right to review and approve Subcontractors selected by the
Prime Contractor to perform work activities covered by allowances.
3.9 SUPERINTENDENT
The Prime 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 Prime Contractor, and communications given to the superintendent shall
be as binding as if given to the Prime 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 Prime Contractor replace its
superintendent at any time and the Prime Contractor will replace said superintendent at the
Owner’s direction.
3.10 PRIME CONTRACTOR’S CONSTRUCTION SCHEDULES
(a) The Prime 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 Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 Prime 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 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 Prime Contractor’s Application for
Payment. No such 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 Prime Contractor has fallen behind the pace required to complete the Work
within the Contract Time, through no fault of the Owner, the Prime 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 Prime 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 t he
full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL
BE ALLOWED AS A RESULT OF THE PRIME 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 Prime Contractor shall also prepare and keep current, for the
Architect/Engineer’s approval, a schedule of submittals which is coordinated with
the Prime Contractor’s construction schedule and allows the Architect/Engineer
reasonable time to review submittals.
(c) The Prime Contractor shall conform to the most recent schedules approved as to
form by the Architect/Engineer and the Owner. Any subsequent revisions made
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
by the Prime 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 Prime 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
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, materialmen,
manufacturer(s), supplier(s), or distributor(s) 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 Prime 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
Prime Contractor which are not required by the Contract Documents may be returned
without action.
(f) The Prime Contractor shall perform no portion of the Work requiring submittal and
review of Shop Drawings, Product Data, Samples, or similar submittals until the
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime Contractor represents that the Prime 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 Prime Contractor's
attention is directed to Paragraph 3.2 of these General Conditions and the requirements
stated in that Paragraph.
(h) The Prime 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 Prime 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 Prime Contractor, has given written approval to the specific
substitutions, changes, additions, deletions, omissions, or deviations. The Prime
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 Prime Contractor shall be responsible for all associated 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 Prime 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 Prime 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 Prime 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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
3.14 CUTTING AND PATCHING
(a) The Prime Contractor shall be responsible for cutting, fitting or patchin g required to
complete the Work or to make its parts fit together properly.
(b) The Prime 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 Prime
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 Prime Contractor shall not
unreasonably withhold from the Owner or a separate contractor the Prime 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 Prime 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 Prime Contractor shall remove from and about
the Project site all waste materials, and rubbish, and all of the Prime Contractor’s tools,
construction equipment, machinery, and surplus materials.
(b) If the Prime Contractor fails to clean up as provided in the Contract Documents, the
Owner may, at Owner’s option, clean up the Project site, and the Owner’s cost of
cleaning up shall be charged to the Contractor.
3.16 ACCESS TO WORK
The Prime 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 Prime Contractor shall make arrangements for such tests,
inspections, and approvals with an independent testing laboratory or entity acceptable to
the Owner or with the appropriate governmental entity or agency, and the Prime
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
Contractor shall bear all related costs of tests, inspections, and approvals. The Prime
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 Prime Contractor to make
arrangements for such additional testing, inspection or approval by an entity acceptable to
the Owner, and the Prime 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 Prime 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 Prime 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 Prime 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
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 LIABILITIES, 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 PATENT
INFRINGEMENT. In the event the Prime Contractor has reason to believe that a particular
design, process or product specified infringes a patent, the Prime Contractor shall
immediately notify the Owner and the Architect/Engineer of same.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
3.19 INDEMNIFICATION
(a) THE PRIME CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE
OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE
ARCHITECT/ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS,
LIABILITIES, 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 PRIME 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 PRIME 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 THIRD PERSON OR
ENTITY.
(b) In claims against any person or entity indemnified under this Paragraph 3.19 by an
employee of the Prime Contractor, a Subcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, the indem nification
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 Prime Contractor or any
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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
pollution of the environment and State or Federal laws or regulations relating to the
occupational safety and health of workers. The Prime Contractor specifically agrees to
comply with the above-mentioned laws and regulations in the performance of the Work
by the Prime 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 Prime 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 Prime 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
Prime 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
Prime 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,
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 Prime 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 Prime Contractor, Subcontractors, or their
agents or employees, or of any other persons performing portions of the Work.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime Contractor, the provisions of the Owner/Architect/Engineer
Agreement will be made available to the Prime 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 Prime
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 Prime Contractor’s responsibility as provided in Paragraph 4.3. The
Architect/Engineer and the Owner will not be responsible for the Prime 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 Prime Contractor, Subcontractors, Sub-
subcontractors, or their respective agents or employees, or of any other persons
performing portions of the Work for which the Prime Contractor is responsible.
(d) Except as otherwise provided in the Contract Documents or when direct communications
have been specially authorized, the Owner and Prime 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
Prime Contractor. Communications by and with separate contractors will be through the
Owner. The Prime Contractor shall provide written confirmation of communications
made directly with the Owner and provide copies of such confirmation to the
Architect/Engineer.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(e) Based on the Architect/Engineer’s observations and evaluations of the Prime Contractor’s
Applications for Payment, the Architect/Engineer will review and certify the amounts due
the Prime 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
Prime 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
Prime 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 Prime
Contractor as required by the Contract Documents. The Architect/Engineer’s review of
the Prime Contractor’s submittals shall not relieve the Prime 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 Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
Project representatives shall be as set forth in an exhibit to be incorporated into the
Contract Documents.
(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 Prime 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 Prime 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 the 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 Prime Contractor, whether for additional compensation,
additional time, or other relief, including but not limited to claims arising from concealed
conditions, WITHOUT EXCEPTION, MUST BE MADE BY WRITTEN NOTICE TO
THE ARCHITECT/ENGINEER AND TO THE OWNER WITHIN FOURTEEN (14)
DAYS IMMEDIATELY AFTER OCCURRENCE OF THE EVENT OR EVENTS
GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Prime 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 Prime Contractor by his signature) of the Prime Contractor,
verifying the truth and accuracy of the Claim. THE PRIME CONTRACTOR SHALL BE
CONCLUSIVELY DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE
STRICTLY IN ACCORDANCE WITH THE PROCEDURES AND TIME LIMITS SET
OUT IN THIS PARAGRAPH.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question
between the Prime 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 Prime Contractor to submit the
Claim 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 Prime
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 PRIME CONTRACTOR AT THE PRIME
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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(f) Claims for Additional Cost. If the Prime 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 Prime 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 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 Prime 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 Prime
Contractor was not at fault; or
(6) other reasonable grounds.
(g) Injury or Damage to Person or Property. If the Prime 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 Prime
Contractor asserts a claim to the Prime Contractor, that the Prime Contractor seeks to
pass through to the Owner under the Contract Documents, any entitlement of the Prime
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 Prime Contractor
to seek and assert such claim against the Owner:
(ii) The Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
Subcontractor is asserting or (B) the Prime Contractor shall have entered into a
written liquidating agreement with the Subcontractor, under which agreement the
Prime Contractor has agreed to be legally responsible to the Subcontractor for
pursuing the assertion of such claim against the Owner under the Contract and for
paying to the Subcontractor any amount that may be recovered, less Prime
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
Prime 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 Prime Contractor in the
claim submittal materials.
(ii) The Prime Contractor shall have reviewed the claim of the Subcontractor prior to
its 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 Prime Contractor shall also certify, in writing and under oath to the Owner, at the
time of the submittal of such claim, that the Prime Contractor has made a review,
evaluation, and determination that the claim is made in good faith and is believed by
the Contractor to be valid.
(iii) The Subcontractor making the claim to the Prime 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 Prime
Contractor in the claim submittal materials made by Contractor to the Owner..
(3) Any failure of the Prime 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 against Owner.
(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 by applicable law.
(i) Owner’s Right to Order Acceleration and to Deny Claimed and Appropriate Time
Extensions, in Whole or in Part. The Prime 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 Prime 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 Prime 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 Prime
Contractor shall take all action necessary to comply with the order. In such event,
any possible right, if any, of the Prime Contractor to additional compensation for
any acceleration shall be subject to the terms of this Subparagraph (i).
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(2) In the event that the Prime 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 Prime Contractor provided within
fourteen (14) days after receipt of the Prime Contractor's Claim. If the Owner
denies the Prime Contractor's claim for an extension of Contract Time under this
Clause (i)(2), either in whole or in part, the Prime 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 Prime 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
accelerate, the Prime Contractor may initiate a Claim for acceleration costs
pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs
properly initiated by the Prime 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; provided however, not to exceed five (5%) per cent, 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 APPLICABLE STATE LAW.
ARTICLE 5 - SUBCONTRACTORS
5.1 DEFINITIONS OF SUBCONTRACTOR
(a) A Subcontractor is person or entity who has a direct Contract with the Prime Contractor
to perform a portion of the Work at the Project site or to supply materials or equipment to
the Prime Contractor by purchase or lease for use in performance of or incorporation into
the 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 Prime Contractor and the Owner, the
Prime 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 Prime 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 Prime Contractor shall not Contract with a proposed person or entity to whom the
Owner or Architect/Engineer has made reasonable and timely objection.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 Prime 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 Prime
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 Prime 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 Prime
Contractor shall require each Subcontractor, to the extent of the Work to be performed by
the Subcontractor, to be bound to the Prime Contractor by the terms of the Contract
Documents (including but not limited to these General Conditions), and to assume toward
the Prime Contractor all the obligations and responsibilities which the Prime Contractor,
by the Contract 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 Prime Contractor shall require each Subcontractor to enter into
similar agreements with Sub-subcontractors. The Prime 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 Prime Contractor is solely responsible for making payments properly to the Prime
Contractor’s Subcontractors on the Project. During performance of the Work, the Prime
Contractor shall comply with the following additional rules regarding Subcontractor
payments:
(1) The Prime 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 Prime 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 Prime 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 by
Subcontractor during the previous progress payment period for work or materials
furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A CONDITION
PRECEDENT TO PAYMENT ON ANY APPLICATION FOR PAYMENT .
(2) If, for any reason, the Prime Contractor is withholding payment to a Subcontractor
due to a dispute or other problem with performance, the Prime Contractor shall note
the amount withheld and further note that the payment is in dispute. The Owner may,
in its sole discretion, require the Prime 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 Prime
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 Prime Contractor has knowingly provided false information regarding
payment of any Subcontractor; or
(iii) the Prime Contractor has otherwise failed to make payments properly to any
Subcontractor.
(4) THE PRIME 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 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
PRIME CONTRACTOR.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of a termination of this Contract by the Owner under Article 14, the Prime
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 Prime 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,
Prime 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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime
Contractor claims that delay or additional cost is involved because of such action by the
Owner, the Prime 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 Prime Contractor, who shall cooperate
with them. The Prime Contractor shall participate with other separate contractors and the
Owner in reviewing their construction schedules when directed to do so. The Prime
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 Prime Contractor, separate
contractors, and the Owner until subsequently revised by mutual agreement or by written
Change Order. If the Prime Contractor believes it is entitled to an adjustment of the
Contract Sum under the circumstances, the Prime Contractor shall submit a written
proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event
the Prime Contractor’s Change Order proposal is denied by the Owner, the Prime
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 Prime 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 Prime 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 Prime Contractor’s construction
and operations with the separate contractors as required by the Contract Documents.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(b) If part of the Prime Contractor’s Work depends for proper execution or results upon
construction or operations by the Owner or a separate contractor, the Prime 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 Prime 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 Prime
Contractor’s Work, except as to defects not then reasonably discoverable.
(c) The Owner shall not be liable to the prime Contractor for damages suffered by the Prime
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 Prime Contractor and a separate contractor,
the Architect/Engineer or the Owner may furnish the Prime Contractor with written
instructions designating priority of effort or change in methods, whereupon the Prime
Contractor shall immediately comply with such direction. In such event, the Prime
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 Prime Contractor.
(d) The Prime Contractor shall promptly remedy damage wrongfully caused by the Prime
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 Prime Contractor cause damage to the work or property of any separate
contractor on the Project, the Prime 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 Prime Contractor who shall defend such
proceedings, at the Prime Contractor's sole expense, and if any judgment or award against
the Owner arises from the separate contractor’s claim, the Prime Contractor shall fully
pay or satisfy it and shall reimburse the Owner for any and all attorney's fees and costs
which the Owner has incurred.
(f) The Owner and each separate contractor shall have the same responsibilities for cutting
and patching as are described for the Prime 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, but is not obligated to do so, and Owner shall allocate the cost among
those parties responsible, as the Architect/Engineer recommends to be just.
ARTICLE 7 - AMENDMENTS
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 RESU LT 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
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:
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(1) mutual acceptance of a not-to-exceed lump-sum amount properly itemized and
supported by sufficient substantiating data to permit evaluation; or
(2) unit prices stated in the Contract Documents or subsequently agreed upon; or
(3) cost to be determined in a manner agreed upon by the parties and a mutually
acceptable fixed or percentage fee; or
(4) the forceaccount 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 on 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 fifteen (15%) per cent.
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 worker’s 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
(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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 r elated 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 Prime 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 extra compensation under the Contract Documents, without reservation or further
recourse.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 , Ordinance 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
Prime Contractor, or of persons or entities for whom the Prime 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 Prime Contractor, the Prime 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 Prime Contractor confirms
that the Contract Time is a reasonable period for performing the Work.
(b) The Prime 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 Prime 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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 Prime
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 Prime 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 Prime
Contractor and the Owner because of the impracticality and extreme difficulty of fixing
and ascertaining the actual damages which the Owner would sustain in the event of the
Prime 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 Prime Contractor. In the event the portion of the Contract Sum retained by the
Owner is insufficient to recover the Stipulated Amount, then the Prime Contractor or the
Prime 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 Prime
Contractor dispute the Owner's determination of liquidated damages due, however, or
should the Prime Contractor, or the Prime Contractor’s agents or assigns, institute any
legal action against the Owner to enforce rights under the Contract Documents, then in
that event, 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 Prime Contractor, as an alternative to all liquidated damages due.
8.3 DELAYS AND EXTENSIONS OF TIME
(a) If the Prime 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 Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE PRIME
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
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 PRIME 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 Prime Contractor shall promptly suspend the Work when either the Prime Contractor
or the Owner is ordered to do so by a court order from a court having lawful jurisdiction,
and the Prime Contractor will not be entitled to additional compensation by virtue of any
delays resulting from the court order. The Prime 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 Prime 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 Prime 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 Prime Contractor shall also provide
suitable drainage about the Work and erect temporary structures where necessary. The
Prime 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 Prime Contractor or any of the
Subcontractors, for which the Prime 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 Prime Contractor is entitled to a time
extension, as determined by the Architect/Engineer, Owner may similarly direct
acceleration and the Prime Contractor agrees to perform same on the basis that the Prime
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i). THE
PRIME CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION
RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR
PRODUCTIVITY OR EFFICIENCY.
ARTICLE 9 - PAYMENTS AND COMPLETION
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
Prime Contractor for the performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
Before the first Application for Payment, the Prime 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 Prime Contractor's Application for Payment.
The schedule of values shall follow the trade division of the Specifications. Prime
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 Prime
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 Prime 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. Prime 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 Prime
Contractor does not intend to pay to a Subcontractor because of a good faith dispute,
unless the Prime Contractor complies with Clause 5.3(b) (2) of these General Conditions
and the Prime Contractor’s Payment Bond Surety consents in writing to payment to the
Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 PRIME CONTRACTOR WILL NOT BE
PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN
PRIOR APPROVAL OF SUCH STORAGE IN WRITING.
(d) The Prime 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 Prime 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 Prime 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, Prime Contractor shall, at Prime 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 Prime
Contractor fails or refuses to remove unauthorized early delivery materials, the Owner
may cause such materials to be removed at the Prime Contractor's sole expense, and
amounts may be withheld from the Prime 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, and if performance and payment
bonds are not furnished by the Contractor, then no payment applied for will be payable
under the Contract until the Work has been finally completed and accepted.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
9.4 CERTIFICATES FOR PAYMENT
(a) The Architect/Engineer will, within ten (10) days after receipt of the Prime Contractor’s
Application for Payment, either issue to the Owner a Certificate for Payment, with a copy
to the Prime Contractor, for such amount as the Architect/Engineer determines is
properly due, or notify the Prime 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
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 Prime 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 Prime Contractor’s right to
payment; or
(4) made examination to ascertain how or for what purpose the Prime 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 Prime 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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(e) The City is required to withhold five percent (5%) 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 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 by Change Order.
(f) No progress payments shall be made on contracts where performance and payme nt 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
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 Prime Contractor as
provided in Subparagraph 9.4(a). If the Prime 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 Prime 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;
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 all of the above reasons that existed for withholding certification are removed or
remedied, then, at that time, 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 Prime 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
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 Prime Contractor default remains
uncured.
(b) The Prime Contractor shall promptly pay each Subcontractor, upon receipt of payment
from the Owner, out of the amount paid to the Prime 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 Prime Contractor on
account of such Subcontractors portion of the Work. The Prime 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 Prime
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 Prime Contractor or, in the event of the Prime Contractor’s
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime Contractor considers that the Work, or the portion of the Work which the
Owner agrees to accept separately, is Substantially Complete, the Prime Contractor shall
prepare and submit to the Architect/Engineer a comprehensive list of remaining items to
be completed or corrected. The Prime 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 Prime 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 Prime 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 Prime Contractor for security, maintenance, heat, utilities, damage to the Work
and insurance, and shall fix the time within which the Prime 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 Prime
Contractor for their written acceptance of responsibilities assigned to them in the
Certificate.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(d) Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Prime 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 Prime 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 Prime 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 Prime Contractor considers a
portion Substantially Complete, the Prime Contractor shall prepare and submit a list to
the Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Prime
Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of
the progress of the Work shall be determined by written agreement between the Owner
and Prime Contractor or, if no agreement is reached, by decision of the
Architect/Engineer.
(b) Immediately prior to such partial occupancy or use, the Owner, Prime 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.
(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
Prime Contractor and noted in said final Certificate is due and payable. The
Architect/Engineer’s final Certificate for Payment will constitute a further representation
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Prime
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 Prime Contractor.
(b) Neither final payment nor any remaining retained percentage shall become due until the
Prime 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 Prime 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 Prime
Contractor's affidavit under Clause (b)(1) shall state that the Prime Contractor has paid
each of his subcontractors, laborers or materialmen in full for all labor and materials
provided to Contractor for the Work performed under this Contract. In the event the
Prime Contractor has not paid each of his subcontractors, laborers or materialmen in full,
the Prime Contractor shall state in the affidavit the amount owed and the name of each
subcontractor, laborer or materialmen to whom such payment is owed. IN ANY EVENT,
THE PRIME 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 Prime Contractor or by issuance of Change Orders
affecting final completion and the Architect/Engineer confirms the delay, the Owner
shall, upon application by the Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime 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 t o or connected with the Work or the
Project.
ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL
COMPLIANCE
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Prime 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 Prime 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 Prime Contractor or the Prime
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.
(b) The Prime 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 Prime 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 Prime Contractor shall exercise
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime
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 Prime 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 Prime
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 Prime 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 and conspicuously: "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 Prime 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 Prime 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 shall not relieve the Prime Contractor of any
responsibility for damage resulting from any blasting operations.
(f) The Prime 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 Prime
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 Prime Contractor is
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime Contractor or any of its
Subcontractors. The foregoing obligations of the Prime Contractor are in addition to the
Prime 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 Prime 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 Prime Contractor shall designate a responsible member of the Prime Contractor’s
organization at the site whose duty shall be the prevention of accidents. This person shall
be the Prime Contractor’s superintendent unless otherwise designated by the Prime
Contractor in writing to the Owner and Architect/Engineer.
(h) The Prime 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 Prime
Contractor shall act, at the Prime Contractor’s discretion, to prevent threatened damage,
injury, or loss. Additional compensation or extension of time claimed by the Prime
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 Prime 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 Prime 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 Prime Contractor. In case of an
emergency, the 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 Prime
Contractor’s neglect shall be deducted from the Contract Sum. The Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime 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 Prime Contractor is
required to construct temporary bridges or make other arrangements for crossing over
ditches or around structures, the Prime 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 Prime
Contractor shall, at the Prime 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 Prime 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 Prime
Contractor will be held responsible for all damage to the Work due to fai lure 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 Prime Contractor at Prime Contractor's cost and expense. The Prime
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 o f 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 Prime 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 Prime Contractor.
10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS
When existing storm sewers or drains have to be taken up or removed, the Prime
Contractor shall at his own expense provide and maintain temporary outlets and
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
connections for all public and private storm sewers and drains. The Prime 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 Prime Contractor shall provide and maintain, at the
Prime Contractor’s own expense, adequate pumping facilities and temporary outlets or
diversions. The Prime Contractor shall, at the Prime 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 Prime Contractor desires to use the Owner's water in connection with the
Work, the Prime Contractor shall make complete and satisfactory arrangements with the
Denton Water Utilities Department and shall be responsible for the cost of the water the
Prime 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 Prime 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
Prime Contractor shall pay for all electricity used in the performance of the Work through
separate metered electrical connections obtained by the Prime Contractor through the
City of Denton.
10.9 USE OF FIRE HYDRANTS
The Prime 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 Prime 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,
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
42 U.S.C.A. §§ 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 Prime 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 Prime 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 Prime Contractor. If the Owner determines that the Hazardous
Substance exists in the affected area due to the fault or negligence of the Prime
Contractor or any of its Subcontractors, the Prime Contractor shall be responsible for
remediating the condition at the sole expense of the Prime Contractor in accordance
with the Prime 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 Prime 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 Prime Contractor or any Subcontractor or Supplier. The Prime
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 Prime 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 Prime 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 Prime Contractor's planned work methods and
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 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 Prime
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
Prime Contractor or a Subcontractor:
(1) The Prime 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 Prime Contractor shall submit a
written report describing such event in a degree of detail reasonably acceptable to
the Owner.
(2) The Prime Contractor shall immediately respond in accordance with the SPRP in
the event of a spill.
(3) The Prime 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 Prime 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 Prime 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 PRIME 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 Prime 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 Prime 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 Prime 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 Prime Contractor
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 al l transport
manifests for surplus or waste excavation or other materials shall be obtained and
retained in the Prime 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.
(g) The Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor and approved by the Owner;
(2) if the Prime Contractor fails to properly address the noncompliance within the
time stipulated by the Owner, perform the necessary remediation or correction
work and backcharge the Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
11.1 PRIME CONTRACTOR’S INSURANCE
Prime 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
Prime 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.
11.3 ‘UMBRELLA’ LIABILITY INSURANCE
Prime 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
Prime 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.
11.5 PERFORMANCE AND PAYMENT BONDS
(a) Subject to the provisions of Subparagraph 11.5(b), the Prime 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 Prime Contractor, as Principal, and by an
established bonding company, as surety, meeting the requirements of Subparagraph
11.5(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 an d 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) years from
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 $50,000, Payment bonds in 100% of the Contract Sum are mandatory and
shall be required to be provided by the Contractor. If the Contract Sum is greater than
$100,000, a Payment Bond and Performance Bond in 100% of the Contract amount is
mandatory.
(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
Prime 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)
Contractor will be required to furnish original performance and payment bonds for 100
percent of the total submission price before work is to commence. The Contractor shall
assume all costs in increasing the bond limits if change orders are formally approved.
Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as
amended, from a surety licensed to do business in the State of Texas. The City, at its
option, may waive the payment and performance bond requirements for projects of less
than $50,000.
Bond forms are attached and shall be returned upon notice of contract award by the City.
Bonds should be forwarded to the City of Denton within fourteen (14) calendar days from
contract award. This contract is not fully executed until payment and performance bonds are
received and accepted by the City. Upon approval, a purchase order will be issued.
(e) The failure of the Contractor to deliver the required statutory bonds and evidence of
insurance within fourteen (14) calendar days after the Contract is awarded shall
constitute a material breach of the Prime Contractor’s bid proposal and the Owner may
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime Contractor's failure to execute and furnish the statutory
bonds within fourteen (14) calendar days, the filing of a bid proposal with the
accompanying bid security will be considered as an acceptance of this Subparagraph
11.5(e). In the event the Owner should re-advertise for bids, the defaulting Prime
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
(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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor a written acceptance or waiver of the defect or
nonconformity. The Prime Contractor’s obligation to correct defective or
nonconforming Work remains in effect for:
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(1) one year after the date of Substantial Completion of the Work or designated portion
of the Work;
(2) one year 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 Prime 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 Prime Contractor promptly after discovery of a defective or nonconforming
condition in 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 Prime 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 one year period also does not relieve
the Prime Contractor from liability for any defects or deficiencies in the Work that may
be discovered after the expiration of the one year correction period.
(e) The Prime 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 Prime Contractor nor accepted by the Owner.
(f) If the Prime 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 Prime 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 Prime Contractor’s expense. If the Prime 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 Prime 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 Prime Contractor should have borne, the
Contract Sum shall be reduced by the deficiency. If payments due to the Prime
Contractor then or thereafter are not sufficient to cover the deficiency, the Prime
Contractor shall pay the difference to the Owner.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(g) The Prime 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 Prime 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 Prime 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 Prime 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 Prime Contractor’s
liability with respect to the Prime 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
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 Prime Contractor and the Prime 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 Prime Contractor and the Surety. If for any reason the Prime
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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime
Contractor, including but not limited to the following causes:
(1) Failure or refusal of the Prime 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 Prime
Contractor is insufficient to complete the Work within the specified time.
(3) Failure or refusal of the Prime 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 Prime 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.
(7) Failure or refusal of the Prime 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 Prime 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 Prime 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 Prime Contractor and the surety or its
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
authorized agents, assume the obligations of the Prime Contractor for the Work or that
portion of the Work which the Owner has ordered the Prime 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 Prime Contractor's default.
In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety
shall assume the Prime 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 Prime 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 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 Prime Contractor to discontinue, then the
Owner shall have the power to complete the Work by contract or otherwise, as it may
deem necessary. The Prime 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 Prime 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 Prime 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 Prime 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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 Prime Contractor, then the Owner may pay to the
Prime Contractor (or the Surety, in the event of a complete termination for cause) the
difference in the cost, provided that the Prime 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 Prime Contractor, then the
Prime 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 Prime 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 unconditional right to terminate this Contract for the convenience of the Owner
(including but not limited to non-appropriation 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 Prime
Contractor. Upon the Prime Contractor’s receipt of such written notice, the Prime
Contractor shall cease the performance of the Work and shall take reasonable and
appropriate action to secure and protect the Work in place. The Prime 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
Prime 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 Prime Contractor for lost or anticipated profits.
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 Prime 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;
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
(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 Prime 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 Prime 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 Prime 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 Prime 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
(a) This Contract shall be in all things governed by the laws of the State of Texas without
regard to conflict of laws principles.
(b) 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 Prime Contractor respectively bind themselves, their partners,
successors, assigns, and legal representatives to the promises, covenants, terms, conditions,
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
and obligations contained in the Contract Documents. The Prime 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 Prime 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 Prime 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 Prime 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 Prime 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
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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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
Prime Contractor is that of an independent contractor. The Prime 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 Prime Contractor an agent,
servant, or employee of the Owner, or making the Prime Contractor or any of the Prime
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 Prime Contractor covenants that he will take all
necessary actions to insure that, in connection with any work under this Contract, the Prime
Contractor and its Subcontractors will not discriminate in the treatment or employm ent 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 Prime 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 Prime 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
(a) The Owner may terminate this Contract immediately if the Prime 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP # 5142
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 Prime
Contractor to remove any employee of the Prime 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 Prime 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 Prime Contractor grants the
Owner the right to audit, at the Owner's election, all of the Prime Contractor's records and
billings relating to the performance of the Work under the Contract Documents. The Prime
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 Prime 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. Prime 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 fi nal 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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
EXHIBIT D
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.
Provide a Waiver of Subrogation in favor of the City of Denton, its officials,
agents, employees, and volunteers.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
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.
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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
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.
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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
[ ] 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.
[ ] 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.
[ ] 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 em ployees,
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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
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
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
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,
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
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
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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
EXHIBIT E
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 th an 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.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
EXHIBIT F
INDIVIDUAL PROJECT INITIATION PROCESS
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. At this time, both parties will agree to the project mobilization date. 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 prior to the agreed upon 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 th e
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
6) Raise any issues of concern
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract # 6085
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 one (1) set of original sealed bonds to Purchasing at 901B
Texas Street, Denton TX 76209 using the City provided bond templates.
c. Purchasing shall acknowledge receipt of bonds via email to the contractor and DME.
d. Purchasing shall issue the purchase order with 5% ret ainage, which shall serve as the
official notice to proceed. Retainage may be waived at the City’s discretion for individual
projects less than $400,000.
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP 6085 PRICING Sheet- Substation Construction Services
Proposer's Name:Can-Fer Utility
Services, LLC- BAFO
Item
#Construction Unit UOM Estimated
Quantity1 Unit Price
1 Mobilization (one per station project)LS 6 $ 8,927.06
FOUNDATIONS (All Labor, Drilling, Forming, Excavation, Rebar,
and Concrete; excludes Anchorbolts)
2
Foundation F1: H-frame Takeoff Structure Foundation - Labor and
Materials (Note: 2 required per structure)
(Dwg FOUNDATION - F1, Standard: 6' Dia. x 19')
EA 74 $ 11,926.75
3 Increase/Decrease Foundation F1 in depth by 1' increments LF 100 $ 576.52
4 Foundation F2: Bus Support Foundation - Labor and Materials
(Dwg FOUNDATION - F2, Standard: Dia. 2'6"' x Depth 18')EA 1082 $ 2,266.84
5 Increase/Decrease Foundation F2 in depth by 1' increments LF 4,500 $ 119.58
6
Foundation F3: Transformer and Oil Containment Foundation including
installation of the oil containment area steel grating - Labor and Materials
(Dwg FOUNDATION - F3)
EA 16 $ 92,548.99
7
Foundation F4: 138kV SPS2 Gas Circuit Breaker Foundation - Labor and
Materials
(Dwg FOUNDATION - F4)
EA 79 $ 7,455.84
8 Foundation F5: Control Building Foundation - Labor and Materials
(Dwg FOUNDATION - F5, Standard: Dia. 2'6"' x Depth 16')EA 212 $ 2,133.83
9 Increase/Decrease Foundation F5 in depth by 1' increments LF 1,067 $ 112.46
10
Foundation F6: 65' Light Duty Static Mast Foundation - Labor and
Materials
(Dwg FOUNDATION - F6, Standard: Dia. 5' x Depth 18')
EA 20 $ 7,904.83
11 Increase/Decrease Foundation F6 in depth by 1' increments LF 100 $ 408.13
12
Foundation F6 HD: 65' Heavy Duty Static Mast Foundation - Labor and
Materials
(Dwg FOUNDATION - F6 HD, Standard: Dia. 5' x Depth 18')
EA 10 $ 9,066.29
13 Increase/Decrease Foundation F6 HD in depth by 1' increments LF 100 $ 468.35
14
Foundation Building Stoops: Poured in place stoops for Control and
Switchgear buildings - Labor and Materials
(Dwg FOUNDATION -F7, F8, F9, F12, F13, F20, Other configurations
as needed)
CY 660 $ 759.23
15 Foundation 10: Light standard foundation - Labor and Materials
(Dwg FOUNDATION - F10, Standard Dia. 2'6" Dia. x Depth 10')EA 32 $ 1,166.05
16 Increase/Decrease Foundation F10 in depth by 1' increments LF 50 $ 113.31
17 Foundation F11: Control Building Foundation - Labor and Materials
(Dwg FOUNDATION - F11, Standard: 2'6" Dia. x 16')EA 110 $ 1,904.69
18 Increase/Decrease Foundation F11 in depth by 1' increments LF 100 $ 113.78
19
Foundation F14: Multi-Bay Takeoff Structure Foundation - Labor and
Materials
(Dwg FOUNDATION - F14, Standard: 7'-6" Dia. x 24')
EA 20 $ 23,512.94
20 Increase/Decrease Foundation F14 in depth by 1' increments LF 100 $ 932.14
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP 6085 PRICING Sheet- Substation Construction Services
Proposer's Name:Can-Fer Utility
Services, LLC- BAFO
Item
#Construction Unit UOM Estimated
Quantity1 Unit Price
21 Foundation F15: 15kV Breaker Switch Foundation - Labor and Materials
(Dwg FOUNDATION - F15)EA 4 $ 3,998.86
22 Foundation F17: Wave Trap/SSVT Foundation
(Dwg FOUNDATION - F17, Standard 3' Dia. x 16')EA 8 $ 3,317.94
23 Increase/Decrease Foundation F17 in depth by 1' increments LF 32 $ 202.75
24
Foundation F18 for S&C Outdoor 1200 amp, 15kV, outdoor switchgear -
labor and materials
(Dwg FOUNDATION - F18)
EA 8 $ 5,635.12
BELOW GRADE
25
Ground grid installed in average types of soil, including soils with some
rock content, and including all necessary tails and all Cadweld material
(4/0 CU to be supplied by Owner)
LF 136,045 $ 6.06
26 Rock trenching adder for installing ground grid in solid formations using
non-rocky backfill material.LF 26,000 $ 1.49
27
Ground rod installed in average types of soil, including soils with some
rock content, and including all necessary Cadweld material (rods to be
supplied by Owner)
EA 968 $ 119.67
28 Ground grid Swage compression fitting installation EA 1,000 $ 26.04
29 Ground rod installed in rock including all necessary Cadweld material
(rods to be supplied by Owner) EA 159 $ 322.66
30 2" Schedule 40 PVC Underground: Labor Installed (Conduit Owner-
furnished)LF 14,192 $ 3.26
31 2.5" Schedule 40 PVC Underground: Labor Installed (Conduit Owner-
furnished)LF 34,791 $ 3.26
32 3" Schedule 40 PVC Underground: Labor Installed (Conduit Owner-
furnished) LF 100 $ 5.62
33 4" Schedule 40 PVC Underground: Labor Installed (Conduit Owner-
furnished)LF 20,794 $ 4.56
34 6" Schedule 40 PVC Underground: Labor Installed (Conduit Owner-
furnished)LF 104,657 $ 6.35
35 Conduit Backfill - Concrete Flowable Fill - Delivered and Placed CY 16,627 $ 122.83
36 Conduit Backfill - Native Material and Compacted CY 14,627 $ 52.07
37 Excavation for concrete flatwork and conduit CY 36,300 $ 40.92
ABOVE GRADE
38
138 KV Breaker installed including all bus connections, jumpers,
equipment grounding and above ground conduit
(Dwg ELEC02 - EL01)
EA 70 $ 2,917.80
39
138 KV High Bus Switch and Stand including auxiliary switch, manual
operator, all bus connections, equipment grounding and above ground
conduit
(Dwg 138-HBDS01)
EA 110 $ 2,533.05
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP 6085 PRICING Sheet- Substation Construction Services
Proposer's Name:Can-Fer Utility
Services, LLC- BAFO
Item
#Construction Unit UOM Estimated
Quantity1 Unit Price
40
138 KV Low Bus Switch and Stand including auxiliary switch, manual
operator, all bus connections, equipment grounding and above ground
conduit
(Dwg 138-LBDS01)
EA 67 $ 2,544.21
41
Substitute Motor Operator for manual operator and auxiliary switch on
138kV Low or High Bus Switch
(Dwg 138-ELEC25-EL01)
EA 12 $ 611.35
42
138 KV Transmission Takeoff Structure including grounding, mounting
and grounding arresters, constructing arrester phase jumpers and
connecting if the line is present
(Dwg 138-TOS01)
EA 30 $ 4,634.63
43
Construct Transmission Takeoff Structure jumpers that connect the
transmission line to the station bus. Install if transmission line is present
(refer to the OFM list;
(Dwg 138-ELEC03-EL01)
EA 110 $ 297.57
44 65' Static Mast including grounding
(Dwg 65-OHSW01)EA 30 $ 1,115.88
45
138kV - 15 KV Transformer including all bus connections, equipment
grounding and above ground conduit (refer to OFM list)
(Dwg 138-ELEC24-EL01)
EA 16 $ 1,193.99
46 Control Building including all equipment grounding and above ground
conduit (refer to OFM list)EA 10 $ 1,710.52
47
Distribution Switchgear Enclosure including all bus connections,
equipment grounding and above ground conduit (refer to OFM list)
(Dwg 138-ELEC24-EL01)
EA 20 $ 1,733.09
48 3/8" EHS Static wire installation between the 65' steel static pole and
takeoff tower (Owner furnished static wire, hardware, and jumpers) LF 17,810 $ 3.79
49 138 kV Bus Support including insulator, bus connection and grounding
(Dwg 138-1PHBP01 & 138-1PLBP01)EA 359 $ 189.70
50
138 kV CT with Stand including bus connections, conduit, junction box,
grounding, single installation
(Dwg 138-1PLCTP02-ER01 & 138-1PLCTP02-SD01)
EA 52 $ 2,127.81
51
138 kV PT/CCVT with Stand including bus connections, conduit,
junction box, grounding, single installation
(Dwg 138-1PTP01)
EA 179 $ 1,941.83
52 15kV Bus Support including insulators, bus connections, and grounding
(Dwg 15-3PBS01)LF 16 $ 788.56
53
SSVT Installation with Stand including bus connections, conduit,
junction box, grounding, single installation
(Dwg 13-056-EL06)
EA 12 $ 942.30
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
RFP 6085 PRICING Sheet- Substation Construction Services
Proposer's Name:Can-Fer Utility
Services, LLC- BAFO
Item
#Construction Unit UOM Estimated
Quantity1 Unit Price
54
Wave Trap Installation with Stand including bus connections, conduit,
junction box, grounding, single installation
(Dwg 138-ELEC17-EL01)
EA 4 $ 1,339.06
55 5" Aluminum Bus Pipe: Installed with dampening cable LF 16,416 $ 13.12
56 4" Aluminum Bus Pipe: Installed with dampening cable LF 100 $ 10.19
57 3" Aluminum Bus Pipe: Installed with dampening cable LF 1,869 $ 13.09
58 2.5" Aluminum Bus Pipe: Installed with NO dampening cable (mainly
used for 138kV bus corners and intersections)LF 3289 $ 8.18
59 2" Aluminum Bus Pipe: Installed with NO dampening cable (mainly used
for 138kV bus corners and intersections)LF 100 $ 8.18
60 Gate or fence post grounding - Labor to ground and connect to grid EA 20 $ 123.68
61 Overhead Area Light: Installed on Static pole/takeoff tower (Owner-
furnished)EA 32 $ 148.78
62 Spoil removal and disposal (as needed)TN 4,000 $ 23.49
63 Concrete flatwork installed per specification and drawings - labor,
materials, and restoration based on drawing estimates CY 2,765 $ 375.61
Estimated mobilization time upon receipt of notice to proceed (days)
14 Days
Number of projects that can be constructed concurrently
3EA, 4EA with 60 days
notice
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
XXXXXXXX
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
XXXXXXXX
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
XXXXXXXX
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
XXXXXXXX
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Contract 6085 - Exhibit G
XXXXXXXXX
DocuSign Envelope ID: 89DE7BB1-CB4E-47C1-B2D4-1F6756446971
Certificate Of Completion
Envelope Id: 89DE7BB1CB4E47C1B2D41F6756446971 Status: Completed
Subject: City Council Docusign Item - 6085
Source Envelope:
Document Pages: 107 Signatures: 4 Envelope Originator:
Certificate Pages: 6 Initials: 0 Karen E. Smith
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
karen.smith@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: Original
11/1/2016 2:56:47 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
Security Level: Email, Account Authentication
(Optional)
Completed
Using IP Address: 129.120.6.150
Sent: 11/1/2016 2:59:54 PM
Viewed: 11/1/2016 3:00:04 PM
Signed: 11/1/2016 3:00:31 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Roger Carter
roger.carter@can-fer.com
Sr. Director - Business Operations
Can-Fer Utility Services, LLC
Security Level: Email, Account Authentication
(Optional)
Using IP Address: 66.55.23.202
Sent: 11/1/2016 3:00:34 PM
Viewed: 11/1/2016 3:53:17 PM
Signed: 11/1/2016 3:54:51 PM
Electronic Record and Signature Disclosure:
Accepted: 11/1/2016 3:53:17 PM
ID: 1c2582ed-51a9-436e-bd9f-0ebe60c67288
John Knight
john.knight@cityofdenton.com
Deputy City Attorney
City of Denton
Security Level: Email, Account Authentication
(Optional)
Using IP Address: 129.120.6.150
Sent: 11/1/2016 3:54:54 PM
Viewed: 11/1/2016 4:23:30 PM
Signed: 11/1/2016 4:23:43 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Julia Winkley
julia.winkley@cityofdenton.com
Contracts Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(Optional)
Completed
Using IP Address: 129.120.6.150
Sent: 11/1/2016 4:23:45 PM
Resent: 11/11/2016 4:55:04 PM
Viewed: 11/1/2016 4:31:36 PM
Signed: 11/11/2016 4:57:20 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Signer Events Signature Timestamp
Howard Martin
howard.martin@cityofdenton.com
Interim City Manager
City of Denton
Security Level: Email, Account Authentication
(Optional)
Using IP Address: 129.120.6.150
Sent: 11/11/2016 4:57:25 PM
Viewed: 11/14/2016 9:38:11 AM
Signed: 11/14/2016 9:39:34 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Jennifer Walters
jennifer.walters@cityofdenton.com
City Secretary
City of Denton
Security Level: Email, Account Authentication
(Optional)
Using IP Address: 129.120.6.150
Sent: 11/14/2016 9:39:37 AM
Viewed: 11/16/2016 2:35:23 PM
Signed: 11/16/2016 2:36:13 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Julia Winkley
julia.winkley@cityofdenton.com
Contracts Administration Supervisor
City of Denton
Security Level: Email, Account Authentication
(Optional)
Sent: 11/1/2016 3:54:53 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Sherri Thurman
sherri.thurman@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 11/1/2016 3:54:53 PM
Viewed: 11/16/2016 2:38:57 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Jane Richardson
jane.richardson@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 11/11/2016 4:57:23 PM
Viewed: 11/14/2016 8:17:11 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Robin Fox
Robin.fox@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 11/11/2016 4:57:23 PM
Viewed: 11/14/2016 9:17:20 AM
Carbon Copy Events Status Timestamp
Electronic Record and Signature Disclosure:
Accepted: 10/9/2015 1:39:51 PM
ID: 04463961-03db-4c4d-9228-d660d6146ed6
Jennifer Bridges
jennifer.bridges@cityofdenton.com
Procurement Assistant
City of Denton
Security Level: Email, Account Authentication
(Optional)
Sent: 11/16/2016 2:36:15 PM
Viewed: 11/22/2016 2:26:04 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Jane Richardson
jane.richardson@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 11/16/2016 2:36:17 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Chris Lutrick
chris.lutrick@cityofdenton.com
Engineer IV
City of Denton (DME)
Security Level: Email, Account Authentication
(Optional)
Sent: 11/16/2016 2:36:18 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
ID:
Notary Events Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 11/16/2016 2:36:18 PM
Certified Delivered Security Checked 11/16/2016 2:36:18 PM
Signing Complete Security Checked 11/16/2016 2:36:18 PM
Completed Security Checked 11/16/2016 2:36:18 PM
Electronic Record and Signature Disclosure
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, City of Denton (we, us or Company) may be required by law to provide to
you certain written notices or disclosures. Described below are the terms and conditions for
providing to you such notices and disclosures electronically through your DocuSign, Inc.
(DocuSign) Express user account. Please read the information below carefully and thoroughly,
and if you can access this information electronically to your satisfaction and agree to these terms
and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of
this document.
Getting paper copies
At any time, you may request from us a paper copy of any record provided or made available
electronically to you by us. For such copies, as long as you are an authorized user of the
DocuSign system you will have the ability to download and print any documents we send to you
through your DocuSign user account for a limited period of time (usually 30 days) after such
documents are first sent to you. After such time, if you wish for us to send you paper copies of
any such documents from our office to you, you will be charged a $0.00 per-page fee. You may
request delivery of such paper copies from us by following the procedure described below.
Withdrawing your consent
If you decide to receive notices and disclosures from us electronically, you may at any time
change your mind and tell us that thereafter you want to receive required notices and disclosures
only in paper format. How you must inform us of your decision to receive future notices and
disclosure in paper format and withdraw your consent to receive notices and disclosures
electronically is described below.
Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the
speed at which we can complete certain steps in transactions with you and delivering services to
you because we will need first to send the required notices or disclosures to you in paper format,
and then wait until we receive back from you your acknowledgment of your receipt of such
paper notices or disclosures. To indicate to us that you are changing your mind, you must
withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your
DocuSign account. This will indicate to us that you have withdrawn your consent to receive
required notices and disclosures electronically from us and you will no longer be able to use your
DocuSign Express user account to receive required notices and consents electronically from us
or to sign electronically documents from us.
All notices and disclosures will be sent to you electronically
Unless you tell us otherwise in accordance with the procedures described herein, we will provide
electronically to you through your DocuSign user account all required notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided or
made available to you during the course of our relationship with you. To reduce the chance of
you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required
notices and disclosures to you by the same method and to the same address that you have given
us. Thus, you can receive all the disclosures and notices electronically or in paper format through
the paper mail delivery system. If you do not agree with this process, please let us know as
described below. Please also see the paragraph immediately above that describes the
consequences of your electing not to receive delivery of the notices and disclosures
electronically from us.
Electronic Record and Signature Disclosure created on: 4/20/2015 9:25:38 AM
Parties agreed to: Roger Carter, Robin Fox
How to contact City of Denton:
You may contact us to let us know of your changes as to how we may contact you electronically,
to request paper copies of certain information from us, and to withdraw your prior consent to
receive notices and disclosures electronically as follows:
To contact us by email send messages to: kevin.gunn@cityofdenton.com
To advise City of Denton of your new e-mail address
To let us know of a change in your e-mail address where we should send notices and disclosures
electronically to you, you must send an email message to us at kevin.gunn@cityofdenton.com
and in the body of such request you must state: your previous e-mail address, your new e-mail
address. We do not require any other information from you to change your email address..
In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected
in your DocuSign account by following the process for changing e-mail in DocuSign.
To request paper copies from City of Denton
To request delivery from us of paper copies of the notices and disclosures previously provided
by us to you electronically, you must send us an e-mail to kevin.gunn@cityofdenton.com and in
the body of such request you must state your e-mail address, full name, US Postal address, and
telephone number. We will bill you for any fees at that time, if any.
To withdraw your consent with City of Denton
To inform us that you no longer want to receive future notices and disclosures in electronic
format you may:
i. decline to sign a document from within your DocuSign account, and on the subsequent
page, select the check-box indicating you wish to withdraw your consent, or you may;
ii. send us an e-mail to kevin.gunn@cityofdenton.com and in the body of such request you
must state your e-mail, full name, IS Postal Address, telephone number, and account
number. We do not need any other information from you to withdraw consent.. The
consequences of your withdrawing consent for online documents will be that transactions
may take a longer time to process..
Required hardware and software
Operating Systems: Windows2000? or WindowsXP?
Browsers (for SENDERS): Internet Explorer 6.0? or above
Browsers (for SIGNERS): Internet Explorer 6.0?, Mozilla FireFox 1.0,
NetScape 7.2 (or above)
Email: Access to a valid email account
Screen Resolution: 800 x 600 minimum
Enabled Security Settings:
•Allow per session cookies
•Users accessing the internet behind a Proxy
Server must enable HTTP 1.1 settings via
proxy connection
** These minimum requirements are subject to change. If these requirements change, we will
provide you with an email message at the email address we have on file for you at that time
providing you with the revised hardware and software requirements, at which time you will
have the right to withdraw your consent.
Acknowledging your access and consent to receive materials electronically
To confirm to us that you can access this information electronically, which will be similar to
other electronic notices and disclosures that we will provide to you, please verify that you
were able to read this electronic disclosure and that you also were able to print on paper or
electronically save this page for your future reference and access or that you were able to
e-mail this disclosure and consent to an address where you will be able to print on paper or
save it for your future reference and access. Further, if you consent to receiving notices and
disclosures exclusively in electronic format on the terms and conditions described above,
please let us know by clicking the 'I agree' button below.
By checking the 'I Agree' box, I confirm that:
• I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF
ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and
• I can print on paper the disclosure or save or send the disclosure to a place where I can
print it, for future reference and access; and
• Until or unless I notify City of Denton as described above, I consent to receive from
exclusively through electronic means all notices, disclosures, authorizations,
acknowledgements, and other documents that are required to be provided or made
available to me by City of Denton during the course of my relationship with you.