6470 executed contract Emergency PCWR pump
Docusign City Manager Approval Transmittal Coversheet
File Name
Purchasing Contact
Contract Value
Piggy Back Option
Contract Expiration
DocuSign Envelope ID: 406F2897-9033-4ED6-9F28-07303FB8C7F6
December 31, 2017
File 6470C
$437,134.00
6470C PECAN CREEK WATER RECL RAW SEWAGE PUMP 2 HYDRAULIC IMP
no
Robyn Forsyth
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND CONTROL SPECIALIST
(FILE #6470C)
THIS CONTRACT is made and entered into this date , by
and between Legacy Contracting, L.P. dba Control Specialist Services, L.P. whose address is
4916 East Highway 380, Decatur, TX 76234, 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 File #6470C,
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 #6470C (Exhibit “B”)
(c) General Provisions-Standard Terms and Conditions (Exhibit “C”);
(d) Payment and Performance Bond Requirements (Exhibit “D”);
(e) Insurance Requirements (Exhibit “E”);
(f) Certificate of Interested Parties Electronic Filing (Exhibit “F”);
(g) Contractor’s Proposal. (Exhibit “G");
(h) Form CIQ – Conflict of Interest Questionnaire (Exhibit "H")
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.
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7/31/2017
CONTRACTOR
BY: ______________________________
AUTHORIZED SIGNATURE
Date: _______________________________
Name: ______________________________
Title: _______________________________
___________________________________
PHONE NUMBER
___________________________________
EMAIL ADDRESS
___2017-223543_____________________
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: _________________________
TODD HILEMAN
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: _________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
By: _________________________________
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President
georgeb@csi5.com
7/31/2017
George Brown
940-626-1415
EXHIBIT A
SPECIAL TERMS AND CONDITIONS
Total Contract Amount
The Contract total for services shall not exceed $437,134.00. Pricing shall be per Exhibit G
attached.
Contract Term
The Contract shall commence upon the issuance of a Notice to Proceed. Contractor shall begin
work on site within fifteen (15) calendar days of receipt of Notice to Proceed. Project shall be
complete within seventy-five (75) calendar days after work commences on site. Delays are
further discussed in the Standard Terms and Conditions Exhibit C, Section 8.3.
Special Notice and Additional Requirement(s):
1. Additional safety precautions shall be instituted by the awarded Contractor, as the work
environment will be in an area where citizens and employees may be present, and work
safety must be coordinated with the City of Denton.
2. The Contractor shall be responsible for all spoil removals, and any excess soil that will
require removal.
3. It is understood that the basis for payment on the work to be done according to the final
plans and specifications shall be a lump sum fee as set forth in Contractor's Proposal
Exhibit G. Any quantity estimates supplied by City of Denton, as shown in Exhibit Bare
intended only as a guide to the respondent. Contractor is responsible for making his own
quantity estimates and pricing from his own examination of the work to be done.
4. A schedule of Contractor’s Quantities and Unit Prices is to be filled out as a part of this
bid. Extensions of units and unit prices must total up correctly.
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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
P.S.Arora, City of Denton Utilities Department, 901-B Texas St, Denton, TX 76209. The
copy may also be emailed to Mr. Arora at p.s.arora@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 City of Denton 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 City of
Denton and Architect/Engineer solely for the purposes of payment. Provided, however,
that such approval shall not be deemed approval of the workmanship or materials. Only
ninety-five percent (95%) of each payment request approved during the construction of
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the project shall be paid by the City of Denton to the Prime Contractor prior to
completion of the Project. Upon the approval by the City of Denton of the Prime
Contractor’s "Final Invoice for Payment” showing the total cost of the construction
performed, the City of Denton 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 City of Denton may withhold from the Prime
Contractor the amount of any claim by any third party against either the Prime Contractor
or the City of Denton 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 City of Denton 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 City of Denton releases of all liens, and
of rights to claim any lien, from all manufacturers, material men and subcontractors
furnishing services or materials for the Project, to the effect that all materials or services used
on or for the Project have been paid for and indicating that the City of Denton 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 City of Denton, the amount thereof
allowed the Contractor for and on account of materials furnished or construction performed
by each materialman or each subcontractor.
5. 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 City of Denton, without in any
manner emiting its legal and equitable remedies in the circumstances, may serve upon the
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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
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 City of Denton and/or Architect/Engineer shall be made by the Prime
Contractor or its Surety or Sureties, the City of Denton 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 City of Denton for any cost or expense in excess
of the Contract price occasioned thereby. In such event the City of Denton may take
possession of and utilize, in completing the construction of the project, any materials,
tools, supplies, equipment, appliances, and plant belonging to the Prime Contractor or
any of its subcontractors, which may be situated at the site of the Project. The City of
Denton 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 City of
Denton all such rights claims and demands.
B. Liquidated Damages
The time of the completion of construction of the project is of the essence of the contract.
Should the Contractor neglect, refuse or fail to complete the construction within the time
herein agreed upon, after giving effect to extensions of time, if any, herein provided, then,
in that event and in view of the difficulty of estimating with exactness damages caused by
such delay, the City shall have the right to deduct from and retain out of such money
which may be then due or which may become due and payable to the Contractor the sum
of ONE HUNDRED DOLLARS ($100.00) 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
City to the Contractor is insufficient to pay in full any such liquidated damages, the
Contractor shall pay to the City the amount necessary to effect such payment in full:
Provided, however, that the City shall promptly notify the Contractor in writing of the
manner in which the amount retained, deducted or claimed as liquidated damages was
computed.
D. Cumulative Remedies
Every right or remedy herein conferred upon or reserved to the City of Denton 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.
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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 City of Denton 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 City of Denton 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 City of Denton’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 City of Denton 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
City of Denton 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 City of Denton 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;
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(2) between the City of Denton and a Subcontractor or -subcontractor; or
(3) between any persons or entities other than the City of Denton 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 partially 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 City of Denton 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
City of Denton during bidding, in which case the written addendums become a part of the
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Project Manual upon their issuance, unless otherwise indicated by the City of Denton in
writing.
h) ALTERNATE
An Alternate is a variation in the Work on which the City of Denton requires a price
separate from the City Building General Conditions Base Bid. If an Alternate is accepted
by the City of Denton, 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 City of Denton,
and later deleted prior to any Work under the alternate being performed or materials
delivered to the Project site, the City of Denton 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
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6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the
Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or
partially filled with any substance; and
(8) any other hazardous material, hazardous waste, hazardous substance, solid waste,
and toxic substance as those or similar terms are defined under any federal, state, or
local environmental laws, rules, or regulations.
k) OTHER DEFINITIONS
As used in the Contract Documents, the following additional terms have the following
meanings:
(1) “provide” means to furnish, install, fabricate, deliver and erect, including all services,
materials, appurtenances and other expenses to complete in place, ready for operation
or use;
(2) “shall” means the action of the party to which reference is being made is mandatory;
(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 City of Denton 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.
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(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 City of Denton. The City of Denton’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 reasonable 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 City of Denton, 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. All incorporated materials for project of any kind, shall be
purchased by City of Denton.
(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.
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1.3 CITY OF DENTONSHIP 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 City of Denton and are, with the exception of the Contract set
for each party, to be returned to the City of Denton 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 City of Denton as manuals or
official policy statements; or
(4) proper nouns or other words required under standard grammatical rules to be capitalized.
ARTICLE 2 - THE CITY OF DENTON
2.1 DEFINITION OF CITY OF DENTON
The City of Denton 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 “City of Denton” means the City of
Denton or the City of Denton’s authorized representatives.
2.2 INFORMATION AND SERVICES REQUIRED OF THE CITY OF DENTON
(a) The City of Denton 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 City of Denton shall also furnish any environmental site assessments that
may have been given to the City of Denton 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 CITY
OF DENTON DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS
ACCURACY EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN
ANY OTHER WAY, AND THE CITY OF DENTON SHALL HAVE NO LIABILITY
FOR THIS MATERIAL.
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(b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the City of
Denton shall secure and pay for necessary approvals, easements, assessments, and
charges required for construction, use, or occupancy of permanent structures or for
permanent changes in existing facilities.
(c) Information or services under the City of Denton’s control shall be furnished by the City
of Denton 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 City of Denton 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 City of Denton for all extra costs incurred of holding, storage, or retention,
including redeliveries by the City of Denton 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
City of Denton enumerated in the Contract Documents and especially those in respect to
Article 6 (Construction by City of Denton or by Separate Contractors), Article 9
(Payments and Completion), and Article 11 (Insurance and Bonds).
(f) The City of Denton shall forward all instructions to the Prime Contractor directly, except
for the City of Denton's Notice to Proceed and the City of Denton’s decision to carry out
Work as described in Paragraph 2.4.
(g) The City of Denton’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 CITY OF DENTON’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
City of Denton, 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 City of
Denton however, to stop the Work shall not create or imply a duty on the part of the City of
Denton to exercise this right for the benefit of the Prime Contractor or any other person or
entity. The rights of the City of Denton under this Paragraph 2.3 shall be in addition to, and
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not in restriction of, the City of Denton’s rights under Paragraph 12.2.
2.4 CITY OF DENTON’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
failure or refusal with diligence and promptness within fourteen (14) days after receipt of
written notice from the City of Denton, the City of Denton 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 City
of Denton has, including but not limited to the City of Denton’s termination rights under
Article 13. In that case, an appropriate Change Order will be issued deducting the City of
Denton's cost of correction, including Architect/Engineer's compensation for additional
services and expenses made necessary by the failure or refusal of th e 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 City of Denton.
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 City of Denton 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 City of Denton
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.
Contract time shall not begin until City of Denton Furnished Equipment and materials are on
site and ready for installation. Risk of loss for City of Denton Furnished Equipment and
materials for any damage caused by the Contractor, whether negligent or intentional, will
transfer to Contractor upon delivery to the site.
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.
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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
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 City of Denton 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.
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(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 City of Denton
under the Architect/Engineer/City of Denton Agreement.
(e) Any Prime Contractor, Subcontractor, Sub-subcontractor, or separate contractor who
commences Work over, in, or under any surface prepared by the City of Denton or by any
other contractor, subcontractor, sub-subcontractor or any separate contractor, without the
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 City of Denton 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 City
of Denton 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 City of Denton, 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 City of Denton, 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.
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(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;
3.5 WARRANTY
(a) General Warranty. The Contractor warrants to the City of Denton 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 WARRANY OR REMEDY REQUIRED OR
PROVIDED BY LAR OR THE CONTRACT DOCUMENTS AND SUCH
WARRANTY SHALL REQUIRE THE CONTRACTOR TO RE-EXECUTE
DEFECTIVE WORK THAT IS DISCLOSED BY THE CITY OF DENTON TO THE
CONTRACTOR WITHIN A PERIOD OF SIX (6) MONTHS AFTER SUBSTANTIAL
COMPLETION OF THE ENTIRE WORK.
SUCH WARRANTY SHALL REQUIRE THE CONTRACTOR TO RE-EXECUTE
DEFECTIVE WORK THAT IS DISCLOSED BY THE CITY OF DENTON TO THE
CONTRACTOR WITHIN A PERIOD OF SIX (6) MONTHS AFTER SUBSTANTIAL
COMPLETION OF THE ENTIRE WORK.
(b) Special Warranties. The Contractor shall assign to the City of Denton in writing, as a
condition precedent to final payment, the terms and conditions of all special warranties
required under the Contract Documents.
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3.6 TAXES
The City of Denton 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 City
of Denton 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
Denton permits required for the Project. The City of Denton 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 City of Denton 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 City of Denton, 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 City of Denton may direct, but
the Prime Contractor shall not be required to employ persons or entities against which the
Prime Contractor makes reasonable objection.
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(b) Unless otherwise provided in the Contract Documents:
(1) materials and equipment under an allowance shall be selected promptly by the City of
Denton 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
(ii) changes in Contractor’s costs under Clause (b) (3);
(5) the City of Denton 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 City of Denton - 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 City of Denton’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 City of Denton's information, review, and approval in
accordance with the following provisions:
(1) Unless otherwise approved in writing by the City of Denton, 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.
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(2) The construction schedule shall be in the form of a critical path management
schedule, and shall indicate each critical task (the “predecessor”) of all the major
construction activities of the Work in a logical and sequential order (the “project
network”) which requires completion prior to commencement of the task next
following (the “successor”). Each task shall be identified with:
(i) actual work time, exclusive of slack time, for accomplishment;
(ii) the latest start date;
(iii) the latest finish date;
(iv) the amount of float associated with each task;
(v) the amount of labor, material, and equipment associated with each task; and
(vi) the percentage of completion as of the date of the current schedule.
(3) 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.
(4) 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 City of Denton 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 City of
Denton. 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.
(5) 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 City of Denton, 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 City of Denton.
(6) Costs incurred by the Prime Contractor in preparing and maintaining the required
construction schedule, any updated schedule, and any recovery schedule required by
the City of Denton will not be paid as an additional or extra cost and shall be included
in the Contract Sum.
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(7) The Contract Sum is deemed to be based upon a construction schedule requiring the
full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL
BE ALLOWED AS A RESULT OF THE 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 City of Denton. Any subsequent revisions
made 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 City of Denton 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 City of Denton.
3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE
The Contractor shall maintain at the Project site for the City of Denton 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 City of Denton upon completion of
the Work.
3.12 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.
3.13 CUTTING AND PATCHING
(a) The Prime Contractor shall be responsible for cutting, fitting or patching required to
complete the Work or to make its parts fit together properly.
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(b) The Prime Contractor shall not damage or endanger a portion of the Work or any fully
or partially completed construction of the City of Denton 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 City of Denton or a
separate contractor except with the written consent of the City of Denton and of the
separate contractor; consent shall not be unreasonably withheld. The Prime Contractor
shall not unreasonably withhold from the City of Denton 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.
3.14 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
City of Denton may, at City of Denton’s option, clean up the Project site, and the City
of Denton’s cost of cleaning up shall be charged to the Contractor.
3.15 ACCESS TO WORK
The Prime Contractor shall provide the City of Denton and the Architect/Engineer access to
the Work in preparation and progress wherever located during the course of construction.
3.16 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 City of Denton or with the appropriate governmental entity or agency. The Prime
Contractor shall give the City of Denton timely notice of when and where tests and
inspections are to be made so the Architect/Engineer may observe such procedures. The
City of Denton shall bear costs of tests, inspections, or approvals which become
requirements after bids or proposals are received.
(b) If the Architect/Engineer, the City of Denton or other public authorities having
jurisdiction over the Work determine that portions of the Work require additional testing,
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inspection or approval not included under Subparagraph 3.17(a), the Architect/Engineer
will, upon written authorization from the City of Denton, instruct the Prime Contractor to
make arrangements for such additional testing, inspection or approval by an entity
acceptable to the City of Denton, 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 City of Denton 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) 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.
(e) Tests or inspections conducted pursuant to the Contract Documents shall be made
promptly to avoid unreasonable delay in the Work.
3.17 INDEMNIFICATION
(a) THE PRIME CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE
CITY OF DENTON, 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 CITY OF
DENTON, 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 CITY OF DENTON, AND THE ARCHITECT/ENGINEER, RESPONSIBILITY
AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH
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THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY OF DENTON 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 indemnification
obligation under this Paragraph 3.19 shall not be limited by a limitation on amount or
type of damages, compensation or benefits payable by or for the 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 City of Denton, its officers, agents, or
employees, or the Architect/Engineer pursuant to State or Federal laws or regulations
relating to pollution of the environment and State or Federal laws or regulations relating
to the occupational safety and health of workers. The 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 City of Denton, 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 City of Denton may, at its option, designate a qualified
City of Denton 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 City of Denton-designated
Architect/Engineer representative and the City of Denton-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 City of Denton may, at its option,
contract with a new outside Architect/Engineer to replace the former, or may designate a
qualified City of Denton representative to serve as the Architect/Engineer. The
replacement Architect/Engineer, whether an City of Denton representative, an
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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 City of Denton, whose decision shall be
final and binding.
(c) City of Denton reserves the right to appoint a representative empowered to act for the
City of Denton during the Construction Phase and to supersede the Architect/Engineer’s
Construction Phase responsibility. Similarly, from time to time the City of Denton may
expand or reduce the City of Denton’s delegation of powers to the Architect/Engineer,
with the City of Denton 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 City of Denton 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 City of Denton will not be
responsible for the Prime Contractor’s failure to carry out the Work in accordance with
the Contract Documents. The City of Denton 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.
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 City of Denton, where applicable, subject to the direction and approval of the City of
Denton. If requested by the Prime Contractor, the provisions of the City of
Denton/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 City of Denton. The Architect/Engineer shall
employ all reasonable measures to safeguard the City of Denton 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 City of Denton 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 City of Denton or the Project.
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(c) The Architect/Engineer and the City of Denton 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 City of Denton 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 City of Denton 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 City of Denton 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
City of Denton. The Prime Contractor shall provide written confirmation of
communications made directly with the City of Denton and provide copies of such
confirmation to the Architect/Engineer.
(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 City of Denton 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 City of Denton, 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
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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
City of Denton for the City of Denton’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 City of Denton and Architect/Engineer agree, the Architect/Engineer will provide
one or more Project representatives to assist in carrying out the Architect/Engineer’s
responsibilities at the site. The duties, responsibilities, and limitations of authority of such
Project representatives shall be as set forth in an exhibit to be incorporated into the
Contract Documents.
(k) The Architect/Engineer will interpret and make recommendations to the City of Denton
concerning performance under and requirements of the Contract Documents upon written
request of either the City of Denton 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 City of Denton’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 City of Denton.
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 City of Denton and the Contractor arising out
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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 CITY OF DENTON
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.
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question
between the Prime Contractor and the City of Denton 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 City of Denton, 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 City of Denton 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 City of Denton
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 City
of Denton 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
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(5) the City of Denton 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 CITY OF DENTON 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 CITY OF DENTON AND THE
ARCHITECT/ENGINEER DO NOT GUARANTEE OR WARRANT ANY
INFORMATION SHOWN IN THE PROJECT SITE INFORMATION AND REPORTS.
(f) Claims for Additional Cost. If the 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 City of Denton 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 City of Denton;
(4) termination of the Contract by the City of Denton;
(5) the City of Denton’s temporary suspension of all or any portion of the Work where
the Prime Contractor was not at fault; or
(6) other reasonable grounds.
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(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 City of Denton, or of
any of the City of Denton'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 City of Denton 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 City of Denton under the Contract Documents, any entitlement of the
Prime Contractor to submit and assert the claim against the City of Denton 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 City of Denton:
(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
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 City of Denton 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 City of Denton at the time such claim is submitted to City of
Denton, 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 City of Denton 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 City of
Denton, 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 City of Denton.
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(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 City of Denton.
(4) Receipt and review of a claim by the City of Denton under this Subparagraph shall
not be construed as a waiver of any defenses to the claim available to the City of
Denton under the Contract Documents or by applicable law.
(i) City of Denton’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 City of Denton. The
following provisions, therefore, will apply:
(1) If the Prime Contractor falls behind the approved construction schedule for
whatever reason, the City of Denton shall have the right, in the City of Denton’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 City of Denton 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).
(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 City of Denton shall have the
right, in the City of Denton’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 City of Denton 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 City of Denton 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
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of overtime pay, additional crew, shift, or equipment costs if requested in advance
by the Contractor and approved in writing by the City of Denton. 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 City of Denton 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 City of Denton 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.
(J) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY’S
FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT
DOCUMENTS OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE
DISPUTE RESOLUTION PROCEEDING.
(k) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT
DOCUMENTS SHALL BE CONSTRUED TO WAIVE THE CITY OF DENTON’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.
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(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 City of Denton, and before the
Building Construction Services Agreement is signed by the Prime Contractor and the
City of Denton, the Prime Contractor shall furnish to the Architect/Engineer in writing,
for acceptance by the City of Denton 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 City of Denton 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 City of Denton or the Architect/Engineer, after due investigation, has
reasonable objection to any such proposed person or entity. Failure of the City of Denton
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
City of Denton or Architect/Engineer has made reasonable and timely objection.
(c) Architect/Engineer's and City of Denton'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 City of Denton 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 City of
Denton 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,
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by the Contract Documents, assumes toward the City of Denton and the
Architect/Engineer. Each subcontract agreement shall preserve and protect the rights of
the City of Denton 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 City of
Denton 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 City
of Denton. 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 CITY OF DENTON OF THE REPORT
OR 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 City of
Denton may, in its sole discretion, require the Prime Contractor to document and
verify the dispute or other problem in question.
(3) The City of Denton 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 City of Denton 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.
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(4) THE PRIME CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A
CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A
RESULT OF THE CITY OF DENTON'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 CITY OF
DENTON 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 CITY OF DENTON AND THE PRIME CONTRACTOR.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of a termination of this Contract by the City of Denton under Article 14, the
Prime Contractor shall, if requested in writing by the City of Denton, within fifteen (15)
days after the date notice of termination is sent, deliver and assign to City of Denton, or
any person or entity acting on the City of Denton's behalf, any or all subcontracts made
by Prime Contractor in the performance of the Work, and deliver to the City of Denton
true and correct originals and copies of the subcontract documents. In the event
assignment is not requested by the City of Denton, Prime Contractor shall terminate all
subcontracts to the extent that City of Denton has not directed assignment of same and to
the extent that they relate to the performance of Work terminated by the notice of
termination.
ARTICLE 6 -CONSTRUCTION BY THE CITY OF DENTON/ SEPARATE
CONTRACTORS
6.1 CITY OF DENTON’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD
SEPARATE CONTRACTS
(a) The City of Denton reserves the right to perform construction or operations related to the
Project with the City of Denton’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 City of Denton, 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 City of Denton.
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(c) The City of Denton shall provide for coordination of the activities of the City of Denton’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 City of Denton in reviewing their construction schedules when
directed to do so. The Prime Contractor shall, with the approval of the City of Denton,
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 City of Denton 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 City of Denton, 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 City of Denton performs
construction or operations related to the Project with the City of Denton’s own forces, the
City of Denton 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 City of Denton 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.
(b) If part of the Prime Contractor’s Work depends for proper execution or results upon
construction or operations by the City of Denton 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 City of Denton’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 City of Denton 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 City of Denton or the
Architect/Engineer. Should any interference occur between the Prime Contractor and a
separate contractor, the Architect/Engineer or the City of Denton 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
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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 City of
Denton 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 City of Denton or submits a claim on account of any damage alleged
to have been so sustained, the City of Denton 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 City of Denton arises from the separate contractor’s claim, the Prime
Contractor shall fully pay or satisfy it and shall reimburse the City of Denton for any and
all attorney's fees and costs which the City of Denton has incurred.
(f) The City of Denton 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 CITY OF DENTON’S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the City of Denton 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
City of Denton may clean up, but is not obligated to do so, and City of Denton shall allocate
the cost among those parties responsible, as the Architect/Engineer recommends to be just.
ARTICLE 7 - AMENDMENTS
7.1 CHANGE ORDERS
(a) A Change Order is a written order to the Contractor, signed by the City of Denton 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 City of Denton, 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 City of Denton and the City of Denton’s City Attorney.
(b) In addition to the City of Denton 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 City of Denton 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
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the changes approved, including the adjustment in the Contract Sum or the Contract
Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES
AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER
PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A
RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY
COMPENSATED IN THE CHANGE ORDER. The execution of a Change Order by the
Contractor shall constitute conclusive evidence of the Contractor’s agreement to the
ordered changes in the Work. The Contractor forever releases any claim against the City
of Denton 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 City of Denton and the Architect/Engineer, it being
expressly understood that the City of Denton 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
City of Denton 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 City of Denton for any change in the
Work shall be one of the following:
(1) mutual acceptance of a not-to-exceed lump-sum amount properly itemized and
supported by sufficient substantiating data to permit evaluation; 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 force account method provided in Subparagraph 7.1(e)
(e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses
(d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree 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 City of
Denton, 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
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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 City of Denton 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 City of Denton.
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 CITY OF DENTON'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 City of Denton), 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 City of Denton, payment of
undisputed amounts on force account shall be included on the Architect/Engineer's
Certificate of Payment as work is completed.
(f) The amount of credit to be allowed to the City of Denton for any deletion of Work or any
other change which results in a net decrease of the Contract Sum shall be the amount of
actual net cost confirmed by the Architect/Engineer plus the stated percentage for
overhead and profit. When both additions and deletions or credits covering related Work
or substitutions are involved in any one change, the allowance for overhead and profit
shall be figured on the basis of the net increase or decrease with respect to that change.
7.2 SUPPLEMENTAL AGREEMENTS
A written Supplemental Agreement can also be used to implement changes in the Work instead
of a Change Order form, including but not limited to situations involving partial occupancy of
the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an
increase in the Contract Sum, or special circumstances where it is necessary or more appropriate
for the City of Denton 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.
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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 City of Denton, 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 City of Denton 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 City of Denton 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 City of Denton and
the Architect/Engineer a minimum of thirty five (35) 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.
(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 City of Denton in final form with all supporting data. Receipt of a
submission by City of Denton 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 City of Denton.
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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 City of Denton. 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 City of Denton 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
City of Denton 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.
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 City of Denton or Architect/Engineer, or of an employee of either, or of a
separate contractor employed by the City of Denton, 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 City of
Denton 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 City of Denton may determine.
(b) Claims relating to Contract Time and time extensions shall be made in accordance with
the applicable provisions of Paragraph 4.3.
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(c) The City of Denton 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.
(d) The Prime Contractor shall promptly suspend the Work when either the Prime Contractor
or the City of Denton 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 City of Denton for a delay caused in fact by the Work being suspended by a
court order.
(e) The Architect/Engineer, with the consent of the City of Denton, 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 City of Denton, and shall resume the Work promptly
when notified by the Architect/Engineer or the City of Denton to resume operations.
(f) 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 City of Denton 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 City of Denton 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, City of Denton may
similarly direct acceleration and the Prime Contractor agrees to perform same on the
basis that the Prime 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 City of Denton to
the Prime Contractor for the performance of the Work under the Contract Documents.
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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 City of Denton, 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 City of Denton.
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 City of Denton 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 City of Denton 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 City of Denton, payment may similarly be
made for materials and equipment suitably stored away from the Project site at a location
agreed upon in writing. Payment for costs incurred in storage of materials or equipment
away from the Project site will NOT be made by City of Denton unless:
(1) the City of Denton 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
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PERMITTED OR PAID FOR, UNLESS THE CITY OF DENTON 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 City of Denton 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 City of Denton 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) 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.
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 City of Denton 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 City of Denton 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 City of
Denton.
(c) The issuance of a Certificate for Payment will constitute a representation by the
Architect/Engineer to the City of Denton, 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 City of Denton’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;
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(3) reviewed copies of requisitions received from Subcontractors and material suppliers
and other data requested by the City of Denton 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.
Whenever the Application for Payment for Work done since the last previous Application
for Payment exceeds one hundred dollars ($100.00) in amount, City of Denton will pay a
percentage of the Application, less applicable retainage, less applicable retainage, to the
Prime Contractor within thirty (30) days following City of Denton’s receipt and approval
of the Certificate for Payment certified by the Architect/Engineer.
(d) 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 City of Denton 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 City of
Denton. 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.
(e) No progress payments shall be made on contracts where performance and payment bonds
are not required or furnished. In such instances, payment for the Work performed will be
made upon final completion and acceptance by the City of Denton of all Work.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
(a) The Architect/Engineer or the City of Denton 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 City of Denton’s interest, if in the Architect/Engineer’s or City of Denton’s
opinion the representations to the City of Denton required by Subparagraph 9.4(b) cannot
be made. If the Architect/Engineer or the City of Denton is unable to certify payment in
the amount of the Application, the Architect/Engineer or the City of Denton will notify
the Prime Contractor as provided in Subparagraph 9.4(a). If the Prime Contractor and
Architect/Engineer or the City of Denton 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 City of
Denton. The Architect/Engineer or the City of Denton 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 City of Denton’s opinion, to
protect the City of Denton from loss because of:
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(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 City of Denton 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 damages for the
anticipated delay;
(7) persistent failure to carry out the Work in accordance with the Contract Documents;
or
(8) mathematical or other errors that are discovered in the Application for Payment.
(b) When 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 City of Denton may, at its option, offset any progress payment or final payment
under the Contract Documents against any debt (including taxes) lawfully due to the City
of Denton 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 City of Denton has been reduced to judgment by a court.
9.6 PROGRESS PAYMENTS
(a) After the Architect/Engineer has issued a Certificate for Payment, the City of Denton
shall make payment in the manner and within the time provided in the Contract
Documents, and shall so notify the Architect/Engineer. The City of Denton 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 City
of Denton or the Architect/Engineer has a right to withhold or not certify under the
Contract Documents. Notwithstanding the foregoing, the City of Denton 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
City of Denton shall not be deemed in default by reason of withholding payment while
any Prime Contractor default remains uncured.
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(b) The Prime Contractor shall promptly pay each Subcontractor, upon receipt of payment
from the City of Denton, 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 City of Denton on
account of portions of the Work done by such Subcontractor.
(d) Neither the City of Denton 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 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 City of Denton shall not constitute acceptance of Work not performed
in accordance with the Contract Documents.
9.7 SUBSTANTIAL COMPLETION
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 City of Denton 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
City of Denton 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
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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 City of
Denton 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 City of Denton and
the Prime Contractor for their written acceptance of responsibilities assigned to them in
the Certificate.
(d) Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Prime Contractor and certification by the Architect/Engineer, the City
of Denton 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 City of Denton 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 City of Denton 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 City of Denton 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 City of Denton, 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.
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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 City of Denton’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 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.
City of Denton will normally make final payment within thirty (30) days after City of
Denton'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 City of Denton and
the Prime Contractor.
(b) Neither final payment nor any remaining retained percentage shall become due until the
Prime Contractor submits to the City of Denton:
(1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness
connected with the Work for which the City of Denton or the City of Denton’s
property might be responsible or encumbered (less amounts withheld by City of
Denton) 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 City
of Denton;
(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 City of Denton, 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 City of Denton.
(c) As a precondition to final payment by the City of Denton 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
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subcontractor, laborer or materialmen to whom such payment is owed. IN ANY EVENT,
THE PRIME CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE CITY OF
DENTON'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 City of
Denton 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
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 City of Denton 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 City of Denton relating to or connected with the
Work or the Project.
ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL
COMPLIANCE
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The 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
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(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 City of Denton 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
utmost care and carry on such activities under supervision of properly qualified
personnel.
(e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The City of
Denton 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 City of Denton shall NOT be liable for any claim for additional time or
compensation as a result of the City of Denton's denial of permission to use explosives.
Where use of explosives is permitted by the City of Denton, 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 City of Denton, 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
CITY OF DENTON, 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 City of Denton and the
Architect/Engineer with evidence of insurance sufficient to cover possible damage or
injury, which insurance shall either include the City of Denton and the
Architect/Engineer as additional insureds or be sufficiently broad in coverage as to fully
protect the City of Denton 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
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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 City of Denton
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 City of Denton 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
responsible under Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to
acts or omissions of the City of Denton 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 City of Denton 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 City of Denton 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.
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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 City of Denton. Sidewalks or streets shall not be
obstructed, except by special permission of the City of Denton. 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 City of Denton 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 City of
Denton's attention, after twenty-four (24) hours’ notice in writing to the Prime
Contractor. In case of an emergency, the City of Denton shall have the right to
immediately remedy any neglect without notice. In either case, the cost of any work
done by the City of Denton 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 transit lines operate, be forty-eight (48)
hours in advance. The City of Denton 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 City of Denton, 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 failure of barricades,
signs, lights and watchmen to protect the Work. Whenever evidence is found of such
damage, the Architect/Engineer may order the damaged portion immediately removed and
replaced by the Prime Contractor at Prime Contractor's cost and expense. The Prime
Contractor's responsibility for maintenance of barricades, signs, and lights, and for
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providing watchmen, shall not cease until the Project has been finally accepted by the City
of Denton.
10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED
In case it is necessary to change or move the property of the City of Denton 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 City of Denton
of any public or private utilities to enter upon the Project site for the purpose of making
such changes or repairs of their property that may become necessary during the
performance of the Work. The City of Denton 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 City of Denton's property. The City of Denton'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 City of
Denton 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
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 CITY OF
DENTON; ELECTRICITY FOR THE PROJECT
(a) When the Prime Contractor desires to use the City of Denton'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.
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(b) The Prime Contractor shall make complete and satisfactory arrangements for electricity
and metered electrical connections with the City of Denton 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 City of
Denton, 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,
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
City of Denton. Work in the affected area shall not thereafter be resumed except by
written order of the City of Denton unless and until the material is determined not to
be a Hazardous Substance or the Hazardous Substance is remediated. The City of
Denton may choose to remediate the Hazardous Substance with a separate contractor
or through a Change Order with the Prime Contractor. If the City of Denton
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
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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 City of Denton 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 City of Denton 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 City of Denton 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 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 City of Denton’s Project Manager or other designated representative. The Prime
Contractor shall not commence any field work prior to approval of such plan by the
City of Denton. 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 City of Denton’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 City of Denton.
(2) The Prime Contractor shall immediately respond in accordance with the SPRP in
the event of a spill.
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(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 City of Denton.
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 City of Denton, 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 City of Denton during the
contractor selection process. The City of Denton 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 City of Denton.
(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
shall submit to the City of Denton for review and approval all planned disposal sites
or proposed uses for the surplus or waste excavation or other materials prior to
removal of any excavation or other material from the Project site. A copy of all
transport manifests for surplus or waste excavation or other materials shall be
obtained and retained in the Prime Contractor’s records for reference purposes, to be
provided upon request to the Architect/Engineer, the City of Denton, 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 City of Denton 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,
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including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite,
whether friable or non-friable.
(i) The City of Denton 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 City of Denton 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 City of Denton 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 City of Denton;
(2) if the Prime Contractor fails to properly address the noncompliance within the
time stipulated by the City of Denton, perform the necessary remediation or
correction work and back charge 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
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.
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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
City of Denton 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 City of Denton. The surety bonds shall be accompanied by
an appropriate Power-of-Attorney clearly establishing the extent and limitations of the
authority of each signer to so sign:
(1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the
total Contract Sum, guaranteeing the full and faithful execution of the Work and
performance of the Contract in accordance with Plans, Specifications and all other
Contract Documents, including any Amendments thereof, for the protection of the
City of Denton. 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 the date of final completion and acceptance of the improvements by
the City of Denton 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 City of Denton-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 City of Denton who is now in default or delinquent on
any bonds or who is a party to any litigation against the City of Denton. All bonds shall
be made and executed on the City of Denton's standard forms, shall be approved by the
City of Denton, 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
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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 City of Denton.
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 City of Denton may
rescind the Contract award and collect or retain the proceeds of the bid security. By
reason of the uncertainty of the market prices or materials and labor, and it being
impracticable and difficult to determine accurately the amount of damages occurring to
the City of Denton 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 City of Denton 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
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Work is in accordance with the Contract Documents, costs of uncovering and
replacement shall, by appropriate Change Order, be charged to the City of Denton. 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
City of Denton or a separate contractor in which event the City of Denton 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 City of Denton to do so unless the
City of Denton 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:
(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 City of Denton 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 City of Denton 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
City of Denton 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
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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 City of Denton.
(f) If the Prime Contractor fails to correct defective or nonconforming Work within a
reasonable time after notice from the City of Denton or the Architect/Engineer, the City
of Denton 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 City of Denton
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 City of
Denton 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 City of
Denton.
(g) The Prime Contractor shall bear the cost of correcting destroyed or damaged
construction of the City of Denton 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.
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12.3 ACCEPTANCE OF NONCONFORMING WORK
The City of Denton may, in the City of Denton’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 City of Denton.
13.2 WARRANTY FULFILLMENT
Materials provided by the City of Denton are not warranted by Contractor
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
effect until the corrections have been properly performed and a letter of release issued.
13.3 TERMINATION BY THE CITY OF DENTON 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 City of Denton 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 City of Denton 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.
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(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 City of Denton 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 City of Denton 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 City of Denton 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 City of Denton 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 City
of Denton, discontinue the Work or portion of the Work as the City of Denton 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 authorized agents, assume the obligations of the Prime Contractor for the Work or
that portion of the Work which the City of Denton 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 City of Denton, 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 City of Denton, tender and pay to the City of
Denton in settlement the amount of money necessary to finish the balance of
uncompleted Work under the Contract, correct existing defective or
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nonconforming Work, and compensate the City of Denton 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 City of Denton 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 City of Denton to
deduct any costs, damages, or actual damages that the City of Denton may have
incurred, including but not limited to additional fees and expenses of the
Architect/Engineer and attorney’s 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 City of Denton has ordered the Prime Contractor to discontinue,
then the City of Denton shall have the power to complete the Work by contract or
otherwise, as it may deem necessary. The Prime Contractor agrees that the City of
Denton 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 City of Denton to complete the
Work shall be deducted by the City of Denton 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 City of Denton 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 damages incurred as a result of the
termination.
(d) The City of Denton 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 City
of Denton’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 City of
Denton 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 City of Denton on notice from the City of Denton for excess due. When
only a particular part of the Work is being carried on by the City of Denton by contract
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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 City of Denton.
(e) The unconditional right to terminate this Contract for the convenience of the City of
Denton (including but not limited to non-appropriation of funding) is expressly
retained by the City of Denton. In the event of termination for convenience, the City of
Denton 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 City of Denton 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 City of Denton 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 City of
Denton 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;
(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 City of Denton to do so. The City of Denton 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 City of Denton, the City of Denton 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:
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(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
City of Denton;
(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 City of Denton.
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 City of Denton and the Prime Contractor respectively bind themselves, their partners,
successors, assigns, and legal representatives to the promises, covenants, terms, conditions,
and obligations contained in the Contract Documents. The 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 City of Denton. If the Prime Contractor attempts to make an
assignment, transfer, or conveyance without the City of Denton’s written consent, the
Contractor shall nevertheless remain legally responsible for all obligations under the
Contract Documents. The City of Denton 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
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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 CITY OF DENTON
(a) The duties and obligations imposed on the Prime Contractor by the Contract Documents
and the rights and remedies available to the City of Denton 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 City of Denton shall constitute a waiver of a right
afforded the City of Denton under the Contract Documents, nor shall any action or failure to
act by the City of Denton 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 City of Denton 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 CITY OF DENTON NOT TO HAVE
FINANCIAL INTEREST IN ANY CONTRACT OF THE CITY OF DENTON
No officer or employee of the City of Denton shall have a financial interest, direct or
indirect, in any Contract with the City of Denton, or be financially interested, directly or
indirectly, in the sale to the City of Denton of any land, materials, supplies or services,
except on behalf of the City of Denton as an officer or employee. Any violation of this
article shall constitute malfeasance in office, and any officer or employee of City of Denton
guilty thereof shall there by 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 City of Denton shall render the Contract
involved voidable by the City of Denton'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 City of Denton
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
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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 City of Denton, 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 City of
Denton 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 employment of
any individual or groups of individuals on the grounds of race, color, religion, national
origin, age, sex, or handicap unrelated to job performance, either directly, indirectly or
through contractual or other arrangements. The 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 City of Denton, upon request, for purposes of evaluating compliance
with this and other provisions of the Contract.
14.10 GIFTS TO PUBLIC SERVANTS
(a) The City of Denton 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
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 City of Denton 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
City of Denton the right to audit, at the City of Denton's election, all of the Prime Contractor's
records and billings relating to the performance of the Work under the Contract Documents. The
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Prime Contractor agrees to retain its Project records for a minimum of five (5) years following
completion of the Work. The City of Denton 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 final negotiated contract
shall take precedence over any and all contract documents to the extent of such conflict.
1. Final negotiated contract
2. RFP/Bid documents
3. City’s standard terms and conditions
4. Purchase order
5. Supplier terms and conditions
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EXHIBIT D
PAYMENT AND PERFORMANCE BOND REQUIREMENTS
Contractor will be required to furnish original performance and payment bonds for one hundred
(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.
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EXHIBIT E
INSURANCE REQUIREMENTS AND
WORKERS’ COMPENSATION REQUIREMENTS
Upon contract execution, all insurance requirements shall become contractual obligations,
which the successful contractor shall have a duty to maintain throughout the course of this
contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor
shall provide and maintain until the contracted work has been completed and accepted by the
City of Denton, City of Denton, 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.
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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 City of Dentons 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.
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If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations,
products and completed operations, independent contractors and property
damage resulting from explosion, collapse or underground (XCU) exposures.
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).
[ ] City of Denton'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 City of Denton'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.
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[ ] 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.
[ ] 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
[ ] 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.
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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, City of Denton-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
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the governmental entity will have on file certificates of coverage showing
coverage for all persons providing services on the project; and
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;
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6. notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the person knew or should have known, of any change that
materially affects the provision of coverage of any person providing services on
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.
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Certificate Of Completion
Envelope Id: 406F289790334ED69F2807303FB8C7F6 Status: Completed
Subject: ****City Manager Approval ******6470 C
Source Envelope:
Document Pages: 85 Signatures: 4 Envelope Originator:
Supplemental Document Pages: 0 Initials: 0 Robyn Forsyth
Certificate Pages: 6
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US &
Canada)
Payments: 0 robyn.forsyth@cityofdenton.com
IP Address: 129.120.6.150
Record Tracking
Status: Original
7/31/2017 7:54:07 AM
Holder: Robyn Forsyth
robyn.forsyth@cityofdenton.com
Location: DocuSign
Signer Events Signature Timestamp
Robyn Forsyth
robyn.forsyth@cityofdenton.com
Buyer
City of Denton
Security Level: Email, Account Authentication
(Optional)
Completed
Using IP Address: 129.120.6.150
Sent: 7/31/2017 8:10:46 AM
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Signed: 7/31/2017 8:14:36 AM
Electronic Record and Signature Disclosure:
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George Brown
georgeb@csi5.com
President
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(Optional)Using IP Address: 4.31.130.210
Sent: 7/31/2017 8:14:39 AM
Viewed: 7/31/2017 9:21:07 AM
Signed: 7/31/2017 9:23:43 AM
Electronic Record and Signature Disclosure:
Accepted: 7/31/2017 9:21:07 AM
ID: 8094b438-7138-4f6f-a4fb-69e8e65582a1
Jennifer DeCurtis
jennifer.decurtis@cityofdenton.com
Deputy City Attorney
City of Denton
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Sent: 7/31/2017 9:23:45 AM
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Signed: 7/31/2017 9:37:00 AM
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Todd Hileman
todd.hileman@cityofdenton.com
City Manager
City of Denton
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Sent: 7/31/2017 9:37:02 AM
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Electronic Record and Signature Disclosure:
Accepted: 7/25/2017 9:02:14 AM
ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21
Signer Events Signature Timestamp
Jennifer Walters
jennifer.walters@cityofdenton.com
City Secretary
City of Denton
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Sent: 7/31/2017 11:07:08 AM
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Karen E. Smith
karen.smith@cityofdenton.com
Interim Purchasing Manager
City of Denton
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Sent: 7/31/2017 8:14:38 AM
Viewed: 7/31/2017 9:01:07 AM
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Sherri Thurman
sherri.thurman@cityofdenton.com
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(Optional)
Sent: 7/31/2017 9:23:45 AM
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Robin Fox
Robin.fox@cityofdenton.com
Security Level: Email, Account Authentication
(Optional)
Sent: 7/31/2017 9:37:02 AM
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Jane Richardson
jane.richardson@cityofdenton.com
Assistant City Secretary
City of Denton
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Sent: 8/6/2017 12:26:14 PM
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Jennifer Bridges
jennifer.bridges@cityofdenton.com
Procurement Assistant
City of Denton
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Sent: 8/6/2017 12:26:14 PM
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Julia Winkley
julia.Winkley@cityofdenton.com
Contracts Administration Supervisor
City of Denton
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Sent: 8/6/2017 12:26:14 PM
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PS ARORA
P.S.Arora@cityofdenton.com
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Monica Brown
monicab@csi5.com
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Rusty Willard
rusty.willard@cityofdenton.com
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Sent: 8/6/2017 12:26:17 PM
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Certified Delivered Security Checked 8/6/2017 12:26:17 PM
Signing Complete Security Checked 8/6/2017 12:26:17 PM
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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
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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: 7/21/2017 1:59:03 PM
Parties agreed to: George Brown, Todd Hileman
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: purchasing@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 melissa.kraft@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 purchasing@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 purchasing@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.