6547 - Concrete Repair Services, 2.General Provisions/ Terms and Conditions
Materials Management Department
901-B Texas Street
Denton, Texas 76209
940-349-7100
purchasing@cityofdenton.com
IFB 6547 – CONCRETE REPAIR SERVICES
Exhibit 2
General Provisions –Terms and Conditions
Indefinite Quantity Facility Construction Services
The following document provides details of the City’s General Provisions, Terms and Conditions,
insurance requirements and sample contract for the purchase of Indefinite Quantity (IDQ) Facility
Construction Services. This exhibit governs this solicitation and supporting exhibits as identified
in the Main Document Table of Contents.
City of Denton
Solicitation General Provisions –Terms and Conditions
Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 2 of 102
Table of Contents
A. GENERAL PROVISIONS .................................................................................................. 4
1. AVAILABILITY OF TECHNICAL DRAWINGS AND SPECIFICATIONS .................. 4
2. EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF THE WORK ............ 4
3. SILENCE OF SPECIFICATIONS ...................................................................................... 5
4. RESPONDENTS COST TO DEVELOP SUBMITTAL ..................................................... 5
5. MINIMUM RESPONSE ..................................................................................................... 5
6. VALIDITY PERIOD ........................................................................................................... 5
7. REJECTION OF SUBMITTAL .......................................................................................... 5
8. PROPRIETARY INFORMATION ..................................................................................... 5
9. NON-ENDORSEMENT ...................................................................................................... 6
10. ASSIGNMENT ................................................................................................................ 6
11. UNAUTHORIZED COMMUNICATIONS .................................................................... 6
12. DISQUALIFICATIONS .................................................................................................. 7
13. INTELLECTUAL PROPERTY INDEMNIFICATION .................................................. 7
14. RIGHTS TO DATA, DOCUMENTS, AND COMPUTER SOFTWARE
(GOVERNMENTAL ENTITY OWNERSHIP) ......................................................................... 7
15. PATENT RIGHTS ........................................................................................................... 7
16. PREFERENCES .............................................................................................................. 8
17. QUANTITIES .................................................................................................................. 9
18. AWARD ......................................................................................................................... 10
19. POST AWARD ADDITIONAL REQUIREMENTS .................................................... 10
20. BONDS .......................................................................................................................... 10
21. CONTRACTS ................................................................................................................ 11
22. RETAINAGE ................................................................................................................. 11
23. INSURANCE ................................................................................................................. 11
24. WARRANTIES .............................................................................................................. 11
25. QUANTITIES ................................................................................................................ 11
26. SUBSTITUTIONS ......................................................................................................... 12
27. PRODUCT CHANGES DURING CONTRACT TERM .............................................. 12
28. ADDING NEW PRODUCTS OR SERVICES TO THE CONTRACT AFTER
AWARD .................................................................................................................................... 12
29. ASBESTOS FREE MATERIALS ................................................................................. 12
City of Denton
Solicitation General Provisions –Terms and Conditions
Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 3 of 102
30. PREVAILING WAGE RATES ..................................................................................... 13
31. SAFETY AND ENVIRONMENTAL HAZARDS........................................................ 13
32. CONTRACTOR STANDARDS OF PERFORMANCE ............................................... 13
33. ANTICIPATED PROBLEMS AND PROPOSED SOLUTIONS ................................. 14
34. ADDITIONAL GENERAL REQUIREMENTS ........................................................... 14
35. REMEDIES .................................................................................................................... 14
a. COMPLETION OF CONTRACTOR’S DEFAULT ..................................................... 14
b. LIQUIDATED DAMAGES ........................................................................................... 15
c. CUMULATIVE REMEDIES ........................................................................................ 16
36. PAYMENT AND PERFORMANCE REQUIREMENTS ............................................ 16
a. PAYMENT AND INVOICES: ...................................................................................... 16
b. PAYMENT TO PERFORMANCE MILESTONES ...................................................... 16
c. TAX EXEMPTION........................................................................................................ 17
d. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR ............................. 17
e. PAYMENTS TO MATERIAL-MEN AND SUBCONTRACTORS ............................ 17
B. SPECIAL NOTICES AND REQUIREMENTS ................................................................ 18
1. CONTRACT ADM INISTRATION SUBMITTALS AND REQUIREMENTS ............... 18
2. MEETINGS ....................................................................................................................... 20
3. SURVEYS, MEASUREMENTS AND LAYOUTS .......................................................... 22
4. MISCELLANEOUS REQUIREMENTS .......................................................................... 22
C. STANDARD PURCHASE TERMS AND CONDITIONS FOR i.d.q FACILITY
CONSTRUCTION SERVICES .................................................................................................... 23
APPENDIX A- INSURANCE REQUIREMENTS AND WORKERS’ COMPENSATION
REQUIREMENTS ........................................................................................................................ 90
APPENDIX B – SAMPLE CONTRACT ..................................................................................... 97
City of Denton
Solicitation General Provisions –Terms and Conditions
Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 4 of 102
A. GENERAL PROVISIONS
1. AVAILABILITY OF TECHNICAL DRAWINGS AND
SPECIFICATIONS
Technical Specifications related to this project are located in Exhibit 3 and Drawings/Plans
are Exhibit 4 (if applicable) of this solicitation.
Electronic documents of the solicitation are available on the City of Denton’s website
www.dentonpurchasing.com
If the technical drawings and specifications are too large to be placed on the City’s website,
they may be downloaded via a FTP site. If this is the case, an Exhibit 5 will be noted on
the table of contents of the Main Solicitation document. Potential respondents should
complete and return Exhibit 5 to receive a log in and password to the FTP site.
2. EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF THE
WORK
Respondents are advised that the plans, specifications, and other documents on file as stated
in the Table of Contents shall constitute all the information which the City shall furnish.
Respondents are required, prior to submitting any response, to review the plans, read the
specifications, exhibits, contract, and bond forms carefully; to visit the site of the work; to
examine carefully the local conditions; to inform themselves with their independent
research, tests, and investigations of the difficulties to be encountered and judge for
themselves the accessibility of the work and all attending circumstances affecting the cost
of doing the work or the time required for its completion and to obtain all information
required to make an intelligent proposal.
No information given by the City or any official thereof, other than that shown on the plans
and contained in the specifications, exhibits, and other contract documents, shall be binding
upon the City. Respondents shall rely exclusively upon their own estimates, investigations,
test and other data which is necessary to full and complete information upon which the
submission may be based. Any respondent, by submitting a response, represents and
warrants that he has prepared his submittal in accordance with the specifications, with full
knowledge and understanding of the terms and provisions thereof; that he has reviewed,
studied and examined the response prior to the signing and submission of same; and that
he was cognizant of the terms of his submittal, verified his calculations and found them to
be correct and agrees to be bound thereby.
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 5 of 102
3. SILENCE OF SPECIFICATIONS
The apparent silence of these specifications as to any detail or the apparent omission from
it of a detailed description concerning any point, shall be regarded as a meaning that the
only best commercial practices are to prevail. All interpretations of these specifications
shall be made on the basis of this statement.
4. RESPONDENTS COST TO DEVELOP SUBMITTAL
Respondents to this solicitation are responsible for all costs of submittal preparation,
delivery and any oral presentations required as part of the selection process. All materials
submitted in response to the solicitation become property of the City of Denton and will be
returned only at the option of the City.
5. MINIMUM RESPONSE
Submittals that do not, at a minimum, contain the attachments and Exhibit 1 Pricing Sheet
will be subject to disqualification at the sole discretion of the City of Denton. If any firm
submitting a response is a corporation, it must be registered to conduct business in the State
of Texas. Proof of this registration must be included as part of the submission.
6. VALIDITY PERIOD
The information included in the solicitation response(s), and any cost information obtained
from a negotiation process, remain valid for 120 days from the response due date or until the
contract is approved by the governing body.
7. REJECTION OF SUBMITTAL
ANY RESPONSE SUBMITTED AFTER THE DUE DATE AND TIME SPECIFIED
SHALL BE REJECTED. THE CITY SHALL REJECT RESPONSES SUBMITTED
BY FIRMS THAT DO NOT MEET MINIMUM QUALIFICATIONS.
The City of Denton reserves the right to reject any and all submittals received in response to
the solicitation and to waive any minor technicalities or irregularities as determined to be in
the best interest of the City.
8. PROPRIETARY INFORMATION
If a respondent does not desire proprietary information in the submission to be disclosed,
the respondent shall identify all proprietary information in the submission. This
identification will be accomplished by individually marking each page or line item detail
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 6 of 102
with the words “Proprietary Information”. If the respondent fails to identify proprietary
information, the respondent agrees that by submission of its response, that those sections
shall be deemed non-proprietary and made available upon public request. Respondents are
advised that the City, to the extent permitted by law, will protect the confidentiality of all
submissions. Respondent shall consider the implications of the Texas Public Information
Act, particularly after the solicitation process has ceased and the contract has been awarded.
While there are provisions in the Texas Public Information Act to protect proprietary
information, where the respondent can meet certain evidentiary standards, please be
advised that a determination on whether those standards have been met will not be decided
by the City of Denton, but by the Office of the Attorney General of the State of Texas. In
the event a request for public information is made, the City will notify the respondent, who
may then request an opinion from the Attorney General pursuant to 552.305, Texas
Government Code. The City will not make a request of the Attorney General.
9. NON-ENDORSEMENT
If a submission is accepted, the successful respondent shall not issue any news releases or
other statements pertaining to the award or servicing of the agreement that state or imply
the City of Denton’s endorsement of the successful respondent’s services.
10. ASSIGNMENT
The successful contractor shall not sell, assign, transfer or convey this contract in whole,
or part, without the prior written consent of the Purchasing Manager.
11. UNAUTHORIZED COMMUNICATIONS
After release of this solicitation, respondent contact regarding this solicitation with
members of the evaluation, interview or selection panels, employees of the City or officials
of the City other than the Purchasing Manager, or authorized City of Denton purchasing
staff, or as otherwise indicated is prohibited and may result in disqualification from thi s
procurement process. No officer, employee, agent or representative of the respondent shall
have any contact or discussion, verbal or written, with any members of the City Council,
members of the evaluation, interview, or selection panels, City staff or City’s consultants,
or directly or indirectly through others, seeking to influence any City Council member,
City staff, or City’s consultants regarding any matters pertaining to this solicitation, except
as herein provided. If a representative of any respondent violates the foregoing prohibition
by contacting any of the above listed parties with who contact is not authorized, such
contact may result in the respondent being disqualified from the procurement process. Any
oral communications are considered unofficial and non-binding with regard to this
solicitation.
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 7 of 102
12. DISQUALIFICATIONS
Any terms and conditions attached to a solicitation will not be considered unless
specifically referred to on a solicitation and may result in disqualification. Any submissions
that do not clearly outline all qualifications may be disqualified.
13. INTELLECTUAL PROPERTY INDEMNIFICATION
The contractor will indemnify, defend and hold harmless the City of Denton, and its
authorized users, against any action or claim brought against the City of Denton, or its
authorized users that is based on a claim that software infringes any patent rights, copyright
rights or incorporated misappropriated trade secrets. Contractor will pay any damages
attributable to such claim that are awarded against the City of Denton or its authorized
users, in a judgment or settlement. If the City of Denton or its authorized users’ utilization
of the software becomes subject to a claim, or is likely to become subject to a claim, in the
sole opinion of the City of Denton, or its authorized users, the Contractor shall, at its sole
expense (1) procure for City of Denton or its authorized users, the right to continue using
such software under the terms of this Contract; or (2) replace or modify the software so
that it is non-infringing.
14. RIGHTS TO DATA, DOCUMENTS, AND COMPUTER SOFTWARE
(GOVERNMENTAL ENTITY OWNERSHIP)
Any software, research, reports studies, data, photographs, negatives or other documents,
drawings or materials prepared by contractor in the performance of its obligations under
this contract shall be the exclusive property of the City of Denton and all such materials
shall be delivered to the City by the contractor upon completion, termination, or
cancellation of this contract. Contractor may, at its own expense, keep copies of all its
writings for its personal files. Contractor shall not use, willingly allow, or cause to have
such materials used for any purpose other than the performance of contractor’s obligations
under this contract without the prior written consent of the City; provided, however, that
contractor shall be allowed to use non-confidential materials for writing samples in pursuit
of the work.
The ownership rights described herein shall include, but not be limited to, the right to copy,
publish, display, transfer, prepare derivative works, or otherwise use the works.
15. PATENT RIGHTS
The contractor agrees to indemnify and hold harmless the City from any claim involving
patent right infringement or copyrights on goods supplied.
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 8 of 102
16. PREFERENCES
A. LOCAL PREFERENCE
1. It is the intent of the City of Denton to comply with Sections 271.905 and 271.9051
of Texas Local Government Code allowing for consideration of the location of a
bidder’s principal place of business in award of a bid.
2. Scope-This policy applies to the purchase of real property and personal property
that is not affixed to real property or services (including construction services)
through a Competitive Bid.
a. Lowest Responsible Bid – Price is the single determinant factor when
awarding a bid to a responsible bidder.
b. Best Value Bid – Price is only one of a number of determining factors
that are weighted for evaluation purposes. (Texas Local Government
Code 252.043)
3. Criteria
a. Lowest Responsible Bids
i. A five percent (5%) price differential will apply to construction bids less
than $100,000 and all other bids, including services, less than $500,000.
Excludes telecommunication and information services.
ii. A three percent (3%) price differential will apply to bids, excluding
construction and services, greater than $500,000.
iii. The chart below is a summary of the criteria for Lowest Responsible Bids:
Local Government Code
271.9051
Local Government Code
271.905
5% price differential 3% price differential
Construction bids less than
$100,000 All other bids, excludes
construction and services,
greater than $500,000 All other bids, including
services, less than $500,000
b. Best Value Bids-Price is only one of a number of determining factors that are
weighted for evaluation purposes as provided in Local Government Code
252.043. As a result, an additional weighted factor will be added to all such
bids for bidders meeting local preference criteria. The appropriate weight,
either 5% or 3%, will be consistent with the criteria outlined in the chart above.
c. Local Bidder Preference Consideration Application
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 9 of 102
i. A new and complete application must be submitted with each competitive
bid by the due date, including a Tax Certification from the Denton County
Tax Assessor/Collector.
ii. This application serves to ensure the qualification of a bidder as a local
bidder and serves as the basis for meeting the statute’s requirement that the
governing body find, in writing, that a bidder is a local bidder.
d. Bidders seeking local preference must meet all specifications and minimu m
requirements contained in the bid documents.
e. Exceptions-This policy does not apply to purchases obtained through a Request
for Qualifications (RFQ), Request for Proposals (RFP), bids involving Federal
funds, Cooperative Programs or Interlocal Agreements.
f. Award of Contract-The City Council may award a competitively bid contract
to the lowest responsible bidder, local bidder or reject all bids.
B. VENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS
1. This section applies only to a contract to be performed, wholly or partly, in a non-
attainment area or in an affected county, as those terms are defined by Section 386.001,
Health and Safety Code.
2. A governmental agency procuring goods or services may:
a. give preference to goods or services of a vendor that demonstrates that the vendor
meets or exceeds any state or federal environmental standards, including voluntary
standards, relating to air quality; or
b. require that a vendor demonstrate that the vendor meets or exceeds any state or
federal environmental standards, including voluntary standards, relating to air
quality.
c. The preference may be given only if the cost to the governmental agency for the
goods or services would not exceed 105 percent of the cost of the goods or services
provided by a vendor who does not meet the standards.”
17. QUANTITIES
The quantities indicated on the Pricing Sheet (Exhibit 1) are estimates based upon the best
available information. The City reserves the right to increase or decrease the quantities to
meet its actual needs without any adjustments in the prices. Individual purchase orders
will be issued on an as needed basis.
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 10 of 102
18. AWARD
The City reserves the right to award by line item, section, or by entire proposal; whichever
is most advantageous, or provides the “best value” to the City, unless denied by the
respondent.
19. POST AWARD ADDITIONAL REQUIREMENTS
A. Pre-Construction Meeting: Prior to commencement of the services, the City and
the Contractor will conduct a pre-construction meeting to review the overall scope,
schedule, deliverables, planning process, and to insure that all relevant parties to
the project are introduced.
B. Contractor Standards of Performance: The contractor shall prosecute the work
diligently with skilled craftsmen and with state-of-the-art methods to complete the
work within the time stated in the contract or such time extensions as may be
granted.
C. Monthly Reports: The awarded Contractor shall provide to the City of Denton,
detailed reports of daily work conditions, daily man power availability, equipment
problems, and work accomplished on a monthly basis.
D. Safety: All contractors to the City of Denton are required to ensure absolute safety
standards are applied and enforced. The City of Denton will not be responsible for
individual contractor safety, and the awarded contractor shall not hold the City of
Denton responsible. Known hazards shall immediately be reported to the Project
Manager and all safety precautions shall be taken to prevent potential safety issues
from occurring.
E. Environmental Hazards: There are no known safety or environmental hazards
existing on the project site at the time of issue of this solicitation. The City does
not warrant or guarantee against the possibility that safety or environmental hazards
or potential hazards may exist at the City’s facilities. The Contractor shall be
responsible for identifying any hazardous conditions and notifying the City verbally
of such conditions as soon as possible after discovery and shall follow up in writing
within 10 days of such discovery. The costs for necessary investigations or any
potential corrective actions will be negotiated between the City and the Contractor.
20. BONDS
Successful awarded 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 less than $50,000.
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 11 of 102
The City shall normally return the proposal bonds within ten (10) working days after the
proposal due date, except for the three top ranked firms. The three top ranked firms will
be retained by the City until the required contract and bonds have been executed, after
which they shall be returned.
The City may require a bid bond for this project. If required, notice will be placed in the
minimum qualifications of the main solicitation document.
21. CONTRACTS
The successful awarded contractor will be required to sign an original contract. A sample
contract is provided in Appendix B – Sample Contract. Respondents shall review the
document and note exceptions in the proposal.
22. RETAINAGE
Retainage is part of public works contract payment withheld by the City to secure
performance and payment to subcontractors. The City withholds 5% on public works
contracts and requires retainage for a single public work project under this contract in
excess of $250,000.
23. INSURANCE
The City requires standard insurance for services performed on site. The successful
awarded contractor will be required to provide a certificate of insurance as outlined in
Appendix A – Insurance requirements. Respondents shall review the document and note
exceptions on Attachment B.
24. WARRANTIES
The contractor shall provide a warranty that is standard in the industry. Repair or
Maintenance of fleet not performed to industry standards shall be accomplished at the
contractor’s expense, at the option of the City.
25. QUANTITIES
The quantities indicated on the Pricing Sheet (Exhibit 1) are estimates based upon the best
available information. The City reserves the right to increase or decrease the quantities to
meet its actual needs without any adjustments in the prices. Individual purchase orders
will be issued on an as needed basis.
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 12 of 102
26. SUBSTITUTIONS
Substitutions are not permitted without the written approval of The City of Denton
Purchasing Department. If specific manufacturers, brands or part numbers are listed in the
exhibits, the City will not accept substitutes. If the manufacturer part numbers provided
has been updated, but do not change the material functionality, please note the change in
exceptions (Main Document -Attachment B).
27. PRODUCT CHANGES DURING CONTRACT TERM
The awarded contractor shall not change specifications during the contract term without
prior approval. Any deviation in the specifications or change in the products must be
approved in advance by the City of Denton. Notice of a change shall be submitted in
writing to purchasing@cityofdenton.com, with the solicitation number in the subject line,
for review. Products/Services found to have changed specifications without notification,
and acceptance, will be returned at the supplier’s expense. Products that have been
installed will be replaced at the contractor’s expense.
28. ADDING NEW PRODUCTS OR SERVICES TO THE CONTRACT
AFTER AWARD
Following the contract award, ADDITIONAL services or products of the same general
category that could have been encompassed in the award of this contract, and that are not
already on the contract, may be added. A formal written request may be sent to successful
Contractor (s) to provide a proposal on the additional services and shall submit proposals
to the City of Denton as instructed. All prices are subject to negotiation with a Best and
Final Offer (“BAFO”). The City of Denton may accept or reject any or all pricing
proposals, and may issue a separate solicitation for the services/products after rejecting
some or all of the proposals. The commodities and services covered under this provision
shall conform to the statement of work, specifications, and requirements as outlined in the
request. Contract changes shall be made in accordance with Local Government Code
252.048
29. ASBESTOS FREE MATERIALS
The contractor shall provide asbestos-free materials as represented by the Manufacturer’s
“Materials Safety Data Sheets”
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Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 13 of 102
30. PREVAILING WAGE RATES
In accordance with Texas Government Code 2258, the awarded contractor shall comply with
prevailing wage rates as defined by the United States Department of Labor Davis-Bacon
Wage Determination at http://www.dol.gov/whd/contracts/dbra.htm and at the Wage
Determinations website www.wdol.gov for Denton County, Texas (WD-2509).
Notwithstanding any other provision of this Contract, the awarded contractor hereby
represents and warrants that the contractor shall pay to each of its employees a wage not
less than what is currently known as the "Federal Minimum Wage" and any increase or
amendments thereto. Furthermore, contractor shall produce proof of compliance with this
provision by contractor to the City. The City shall withhold payments due to contractor
until contractor has complied with this provision. Prior to any payment being made for
work satisfactorily completed and accepted, contractor shall submit wage rate affidavits
with its billing documents affirming that all employees have been paid not less than the
current "Federal Minimum Wage”.
31. SAFETY AND ENVIRONMENTAL HAZARDS
The City does not warrant or guarantee against the possibility that safety or environmental
hazards or potential hazards (including premises and special defects) may exist at the City’s
facilities. The Contractor shall be responsible for identifying any hazardous conditions and
notifying the City of these conditions in writing no later than 30 days after contract award
and prior to initiation of service delivery on the property. This will be accomplished by the
Contractor conducting an environmental assessment and an occupational health, and safety
inspection of the service bay or field service areas by competent, qualified and
appropriately licensed practitioners. The costs of these inspections and any subsequent
corrective action will be negotiated between the City and the Contractor.
All contractors to the City of Denton are required to ensure absolute safety standards are
applied and enforced. The City of Denton will not be responsible for individual contractor
safety, and the awarded contractor shall not hold the City of Denton responsible. Known
hazards shall immediately be reported and all safety precautions shall be taken to prevent
potential safety issues from occurring.
32. CONTRACTOR STANDARDS OF PERFORMANCE
Monthly Time Standards - Contractors shall fully understand that the City relies on the
product or service of the solicitation to provide vital municipal services, and the availability
and reliability of the equipment is of the essence. With this in mind, the Contractor shall
meet the following performance standards at all times. Labor disputes, strikes, and other
events, except those beyond the Contractor's control such as acts of God, shall not relieve
the Contractor from meeting these standards. For service category, the Contractor must
ensure the given level of service is achieved, within the designated number of working
hours.
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Contractor shall deliver goods or services within specified delivery times for 95% of all
orders.
33. ANTICIPATED PROBLEMS AND PROPOSED SOLUTIONS
Respondent shall offer written observations, based upon previous experiences in public
projects of this magnitude, addressing any anticipated problems and offer proposed solutions
to those problems.
34. ADDITIONAL GENERAL REQUIREMENTS
a. Prior to commencement of the services, the City and selected individual or business
will conduct an initial meeting to review the overall scope, schedule, deliverables and
planning process to implement a successful program.
b. The awarded Contractor shall provide to the City of Denton, detailed reports of time
and services provided to the City on a monthly basis.
c. Staff available to assist the selected provider is limited; the proposals submitted should
not anticipate extensive staff assistance during equipment repairs or maintenance.
35. REMEDIES
A. COMPLETION OF CONTRACTOR’S DEFAULT
If default shall be made by the Contractor or by any subcontractor in the
performance of any of the terms of this proposal, the City, without in any manner
limiting its legal and equitable remedies in the circumstances, may serve upon the
Contractor and the Surety or Sureties upon the Contractor's bond or bonds a written
notice requiring the Contractor to cause such default to be corrected
forthwith. Unless within twenty (20) days after the service of such notice upon the
Contractor such default shall be corrected or arrangements for the correction thereof
satisfactory to the City and/or Engineer shall be made by the Contractor or its
Surety or Sureties, the City 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 Contractor, and the Contractor and its Surety or Sureties shall be
liable to the City for any cost or expense in excess of the contract price occasioned
thereby. In such event the City may take possession of and utilize, in completing
the construction of the project, any materials, tools, supplies, equipment,
appliances, and plant belonging to the Contractor or any of its subcontractors,
which may be situated at the site of the project. The City in such contingency may
exercise any rights, claims or demands which the Contractor may have against third
persons in connection with this contract and for such purpose the Contractor does
hereby assign, transfer and set over unto the City all such rights claims and
demands.
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B. LIQUIDATED DAMAGES
Respondent must agree to commence work on or before a date to be specified in
written "Notice to Proceed" by the Owner, and to fully complete the project within
the time stated on proposal. As failure to complete project within the stated time,
respondent agrees to pay as liquidated damages, the sums indicated in the
Solicitation Main document Section 10, for each working day of delay until work
is completed and accepted.
Delays because of strikes, fire, weather, or any cause beyond the contractors control
shall be granted, but claims for extension shall be in writing within a reasonable
time after the occurrence.
Contractor shall submit request for delay on a monthly basis in a letter form
indicating reason and date of delay. Failure to do so on a monthly basis means
contractor will forfeit those delay days.
Liquidated damages in the amount per day shown in Main Solicitation Document,
Section 10 “Liquidated Damages”, will be assessed against the Contractor for each
calendar day or portion thereof that: (1) the Contractor has not fully and timely
completed the specific portion or part of the work to be completed by the end of the
current month as provided in the detailed description of work and/or schedule
previously submitted by the Contractor on the first day of that particular month,
after accounting for any agreed-upon changed orders, which will entitle the Owner
to withhold the liquidated damages from the payment otherwise owed to the
Contractor for work completed in that particular month; (2) the Contractor has not
substantially completed all work following the expiration of the number of calendar
days to complete the work as agreed upon in the contract, after accounting for any
agreed-upon changed orders; or (3) all items listed as incomplete and attached to
the Certificate of Substantial Completion are not completed or corrected after
expiration of the agreed time allotted for completion and correction, including any
approved extensions of time granted. These liquidated damages are cumulative.
The sum of the liquidated damages will be deducted from any monies due the
Contractor. If no money is due the Contractor, said sum may be recovered by the
Owner from the Contractor or the Contractor's surety, or from both combined.
These deductions are to cover liquidated damages to the Owner for losses to Owner
that include, but are not limited to, additional expenses of Contract administration,
overhead and other costs resulting from failure of the Contractor to complete the
Work within the designated time, and are not to be considered as penalties. The
Owner shall not be considered liable for any extra or additional payment to the
Contractor as a bonus or premium for early completion. Any failure on the part of
the Owner to request or require payment or withholding of liquidated damages in
any particular month shall not constitute a waiver of Contractor’s requirement to
pay, or the Owner’s ability to withhold from payments owed to Contractor, any
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liquidated damages for work performed or completed in that particular month, in
any prior or subsequent month, or at the time all work has been completed.
C. CUMULATIVE REMEDIES
Every right or remedy herein conferred upon or reserved to the City shall be
cumulative, shall be in addition to every right and remedy now or hereafter existing
at law or in equity or by statute, and the pursuit of any right or remedy shall not be
construed as an election. Provided, however, that the provisions of the
REMEDIES SECTION shall be the exclusive measure of damages for failure by
the Contractor to complete the construction of the project within the time herein
agreed upon.
36. PAYMENT AND PERFORMANCE REQUIREMENTS
A. PAYMENT AND INVOICES:
Payment processing: The City review, inspection, and processing procedures for
invoices ordinarily require thirty (30) days after receipt of invoices, materials, or
services. Submissions which call for payment before thirty (30) days from receipt
of invoice, or cash discounts given on such payment, will be considered only if, in
the opinion of the Purchasing Manager, the review, inspection, and processing
procedures can be completed as specified. It is the intention of the City of Denton
to make payment within thirty days after receipt of valid invoices for which items
or services have been received unless unusual circumstances arise. The 30 day
processing period for invoices will begin on the date the invoice is received or the
date the items or services are received, whichever is later.
Direct deposit for payments: Contractors are encouraged to arrange for receiving
payments through direct deposit. Information regarding direct deposit payments is
available from the City of Denton Purchasing website: www.dentonpurchasing.com.
Invoices: Shall be sent directly to the City of Denton Street Department, 901-A
Texas Street, Denton, TX, 76209. It is the intention of the City of Denton to make
a payment on completed orders within thirty days after receipt of invoice or items;
whichever is later, unless unusual circumstances arise. 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.
B. PAYMENT TO PERFORMANCE MILESTONES
Awarded contractor shall prepare and submit invoices after completion of specific
project milestones. The invoice shall detail the major milestones accomplished and
detailed cost information for project. These milestones shall be submitted to the City
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of Denton and the City’s Project Staff shall review such for completion and accuracy,
prior to payment authorization.
C. TAX EXEMPTION
The City of Denton qualifies for sales tax exemption pursuant to the provisions of
Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any
Contractor performing work under this contract for the City of Denton may
purchase materials and supplies and rent or lease equipment sales tax free. This is
accomplished by issuing exemption certificates to suppliers. Certificates must
comply with State Comptroller’s ruling #95-0.07 and #95-0.09.
D. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR
Upon award of the contract, the Contractor shall inform the City of the
subcontractors and material sources that will be used. Upon the completion by the
Contractor of the construction of the project, but prior to final paym ent to the
Contractor, the Contractor shall deliver to the City 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 is
released from all such claims.
E. PAYMENTS TO MATERIAL-MEN AND SUBCONTRACTORS
The Contractor shall pay each material-men, and each subcontractor, if any, not
later than five (5) days after receipt of any payment from the City, the amount
thereof allowed the Contractor for and on account of materials furnished or
construction performed by each material-men or each subcontractor.
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B. SPECIAL NOTICES AND REQUIREMENTS
1. CONTRACT ADMINISTRATION SUBMITTALS AND
REQUIREMENTS
A. General: the General Conditions, Supplementary Conditions and Special
Conditions provide definite times for Contractor to submit certain lists,
qualifications, price breakdowns and schedules for administrative procedures
including but not necessarily limited to the follow ing:
B. List of Subcontractors: before the execution of the Contract, the respondent awarded
the contract w ill submit to the City for approval a list of all Subcontractors, and/or his
major Subcontractors, proposed to use. This list will include each Subcontractor's
correct name, mailing address and phone number.
C. Contractor's Superintendent: The Contractor shall submit the name and qualifications
of the person designated as Project Superintendent within ten (10) days of the receipt
of the Notice of Award Letter.
D. Contract Price Breakdown: upon execution of the Contract, the Contractor shall
submit to the City for approval a breakdow n of the Contract price, itemizing material
and labor for various classifications of work.
1.The City will provide forms entitled "DETAILED ESTIMATE" for the
Contractor to use to prepare the breakdown. The City will also provide an
example for the Contractor to generally follow to prepare the breakdown.
2.Unit Price items will be multiplied by the estimated quantities to give the item
totals. The total item will then be divided into "material" and "labor" and listed
on the breakdown. The breakdown of unit price items into material and labor is
required so the City may make progress payments on materials delivered before
the labor is performed.
E. Work Progress Schedule: Within three (3) weeks after receipt of a work order, the
Contractor shall submit in duplicate to the City for approval an estimated progress
schedule for the work in relation to the entire project.
The City will provide forms entitled "PROPOSED SCHEDULE" for the Contractor
to use to prepare his progress schedule. The form is a bar chart with time across the
top and work item down the side. The Contractor w ill fill out this form listing the
work items and show the beginning and ending dates for each item. The City will
provide an example for the Contractor to generally follow to prepare the progress
schedule.
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F. Estimated Payment Schedule: Prior to starting work, the Contractor shall submit to
the City an estimate of his monthly payment requests. This shall be reviewed each
month during the construction period and revised estimates furnished if significant
changes are indicated.
G. Testing and Quality Control: Observation of the Contractor's work to determine
compliance with the plans and specifications may include testing of material installed
on the project. A Testing Laboratory located by the Contractor shall do testing of
materials furnished and work performed. The Contractor shall use only materials in
the work, which meet the requirements of the specifications. The Contractor shall
furnish at his own expense all necessary tests and specimens for testing of the material
and when requested shall furnish a complete written statement of the origin,
composition, and/or manufacturer of any or all materials that are to be used in the
work. All materials not conforming to the requirements of the specifications will be
rejected.
THIS QUALITY CONTROL SERVICE DOES NOT RELIEVE THE
CONTRACTOR OF HIS RESPONSIBIL ITY WITH REGARD TO
CONSTRUCTING THE WORK IN ACCORDANCE WITH THE
CONTRACT.
Contractor shall submit appropriate tests including, but not limited to:
1) Any test required in the technical specifications
2) Any structural element called for on the plans, including, but not limited to dam
construction, concrete asphalt roads or paths, shelters, bridges or other structure
tests, pressure test of irrigation.
3) Test to prove adequacy of design and construction of any feature that may
have been accepted by Owner under contractor's "Alternate Proposal".
4) Any test that may be occasioned by any local, state, or federal law.
H. As-Built Drawings: The contractor shall maintain a complete set of contract drawings
in his possession, upon which he is required to note in red, or other clear manner, all
deviations, final dimensions and explanatory notes arising out of actual work installed
or performed in the field, and showing exact locations of such work, including trades.
Notes on these drawings shall indicate installed locations and dimensioned clearances.
Contractor to furnish an as- built draw n from an aerial photo identifying course,
irrigation (including all components, buried or otherwise), major and minor drainage
lines and related structures, all underground utilities, location of buried trees and
debris, limits of topsoil, extra borrow areas, and other significant construction which
could reasonably be foreseen to affect future operation.
All as-built(s) shall be supplied in CAD format.
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I. Project Manuals: Contractor shall supply City a project manual for operations of all
mechanical systems to be included under this contract in a manner satisfactory to
the design professional, his sub-consultants and City's representatives.
J. Schedule of Tests, Submittals: A schedule of anticipated tests and submittals begins
on the next page. Additional submittals may be required.
2. MEETINGS
A. Pre-Construction Conference: Prior to start of work, a conference between the City
and Contractor will be held to discuss provisions of the contract documents, explain
administrative procedures and coordinate the work effort. Time of pre- construction
conference will be stated in the Work Order letter for the Contractor. Attendance
by Contractor and Contractor's Superintendents is mandatory.
1. City will schedule meeting and provide meeting place.
2. Attendance: The following are expected to attend:
a) City's Representative.
b) Consultant's Construction Administrator.
c) Representatives from Sub-Consultants
d) Contractor's General Superintendent, Project
e) Superintendent and Project Coordinator
f) Representatives of major subcontractors
3. Agenda It ems:
a) List of major Subcontractors and Suppliers
b) Tentative construction schedule
c) Critical work sequencing
d) Major equipment deliveries
e) Designation of responsible personnel
f) Procedures and processing of field decisions, proposal requests,
submittals color coordination, change orders, and applications for
payment.
g) Adequacy of distribution of Contract Documents.
h) Procedures for maintaining Record Documents
i) Use of Premises: office, work, storage, staging areas; Owner's
requirements
j) Construction facilities, controls and construction aids
k) Temporary utilities
l) Safety and first aid procedures
m) Security procedures
n) Housekeeping procedures
o) Other business
4. The City's Representative will preside over the meeting.
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B. Progress Meetings: Construction progress meetings may be called by the Project
Manager, Project Inspector or the General Contractor to review job progress or
problems.
1. Schedule meeting and notify in writing those concerned at least one week
in advance of meeting.
2. Provide a convenient, comfortable meeting place.
3. Contractor's Project Superintendent or Project Manager shall preside over
meeting.
4. Attendance: The following are expected to attend:
a) City's Representative
b) Consultant's Construction Administrator
c) Sub-consultant's unless notified otherwise
d) Contractor's General Superintendent, Project
e) Superintendent and Project Coordinator.
f) Subcontractors having work in progress
g) Subcontractors whose w ork will start within the next month
h) Others as requested by City, A/E, or Contractor
5. Agenda
a) Review, approval of minutes or previous meeting
b) Review of work progress since previous meeting
c) Field observation, problems, conflicts
d) Problems which impede construction schedule
e) Review of off-site fabrication, and delivery schedules
f) Corrective measures and procedures to regain
g) Projected schedule.
h) Revisions to construction schedules
i) Progress schedules for succeeding period
j) Schedule coordination
k) Review proposed changes for effect on construction schedule, on
completion date, and effect on other contracts of project
l) Maintenance of quality standards
m) Pending changes and substitutions
n) Other business
C. Minutes of Meetings: Contractor shall take notes at pre- construction and progress
meetings and distribute them to those concerned in the form of minutes within
four (4) calendar days after meeting.
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3. SURVEYS, MEASUREMENTS AND LAYOUTS
A. General : The City w ill provide property surveys. The Contractor shall be
responsible for all control point staking as required. The Contractor's
responsibility for verifying conditions is defined in the Standard General
Conditions.
B. Surveys, Measurements and Layout Out of Work: The Contractor will establish from
survey information on drawings all lines, grades, and levels and will be
responsible for maintenance and accuracy thereof.
4. MISCELLANEOUS REQUIREMENTS
A. 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 owner.
B. The Contractor shall be responsible for all spoil removals, and any excess soil that
will require removal.
C. 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
submission. Any quantity estimates supplied by Designer or City are intended only
as a guide to the respondent. Respondent is responsible for making his own quantity
estimates and pricing from his own examination of the work to be done.
D. A schedule of Respondent's Quantities and Unit Prices is to be filled out as a part
of this solicitation. Extensions of units and unit prices must total up correctly.
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C. STANDARD PURCHASE TERMS AND CONDITIONS FOR
I.D.Q FACILITY CONSTRUCTION SERVICES
ARTICLE 1 GENERAL PROVISIONS
GENERAL DEFINITIONS
1.1 The following definitions apply throughout these General Conditions and to the other
Contract Documents:
a) THE CONTRACT DOCUMENTS
The Contract Documents consist of the formal Building Construction Services Agreement
between the Owner and the Contractor, these General Conditions and other supplementary
conditions included by special provisions or addenda, drawings, specifications, addenda
issued prior to execution of the Contract, other documents listed in the Contract, and
Amendments issued after execution of the Contract. For purposes of these General
Conditions, an Amendment is:
(1) a written Supplemental Agreement to the Contract signed by authorized representatives
of both parties;
(2) a Change Order, including Change Orders signed only by the Owner as described in
Subparagraph 7.1(b) and Subparagraph 7.1(e); or
(3) a written order for a minor change in the Work issued by the Architect/Engineer as
described in Paragraph 7.3.
The Contract Documents also include bid documents such as the Owner’s Instructions to
Bidders, sample forms, the Contractor's Bid Proposal and portions of addenda relating to
any of these documents, and any other documents, exhibits or attachments specifically
enumerated in the Building Construction Services Agreement, but specifically exclude
geotechnical and subsurface reports that the Owner may have provided to the Contractor.
b) THE CONTRACT
The Contract Documents, as defined in Paragraph 1.1, are expressly incorporated into and
made a part of the formal Building Construction Services Agreement between the Owner
and the Contractor by reference in this Paragraph and Paragraph 1.1 (which documents are
sometimes also referred to collectively in these General Conditions as the “Contract”). The
Contract Documents represent the entire and integrated agreement between the Owner and
the Contractor and supersede all prior negotiations, representations or agreements, either
written or oral. The terms and conditions of the Contract Documents may be changed only
by an Amendment. The Contract Documents shall not be construed to create a contractual
relationship of any kind:
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(1) between the Architect/Engineer and Contractor;
(2) between the Owner and a Subcontractor or Sub-subcontractor; or
(3) between any persons or entities other than the Owner and Contractor.
The Architect/Engineer shall, however, be entitled to performance and enforcement of
obligations under the Contract Documents intended to facilitate performance of the
Architect/Engineer’s duties.
c) THE WORK
The term “Work” means the construction and services required by the Contract Documents,
whether completed or partially completed, and includes all labor, materials, equipment,
and services provided or to be provided by the Contractor, or any Subcontractors, Sub-
subcontractors, material suppliers, or any other entity for whom the Contractor is
responsible, to fulfill the Contractor’s obligations. The Work may constitute the whole or
a part of the Project.
d) THE PROJECT
The Project is the total construction more particularly described in the Building
Construction Services Agreement, of which the Work performed under the Contract
Documents may be the whole or a part of the Project and which may include construction
by the Owner or by separate contractors. All references in these General Conditions to or
concerning the Work or the site of the Work will use the term “Project,” notwithstanding
that the Work may only be a part of the Project.
e) THE DRAWINGS
The Drawings (also known as the “Plans”) are the graphic and pictorial portions of the
Contract Documents, wherever located and whenever issued, showing the design, location
and dimensions of the Work, generally including plans, elevations, sections, details,
schedules, and diagrams.
f) THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written
requirements for materials, equipment, construction systems, standards, and workmanship
for the Work, performance of related services, and other technical requirements.
g) THE PROJECT MANUAL
The Project Manual is the volume or volumes which contain the bidding requirements,
sample forms, General Conditions for Building Construction, special provisions, and
Specifications. The Project Manual may be modified by written addendums issued by the
Owner during bidding, in which case the written addendums become a part of the Project
Manual upon their issuance, unless otherwise indicated by the Owner in writing.
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h) ALTERNATE
An Alternate is a variation in the work on which the Owner requires a price separate from
the City Building General Conditions Base Bid. If an Alternate is accepted by the Owner,
the variation will become a part of the Contract through the execution of a change order or
amendment to the Contract and the Base Bid will be adjusted to include the amount quoted.
If an alternate is accepted by the Owner, and later deleted prior to any Work under the
alternate being performed or materials delivered to the Project site, the Owner will be
entitled to a credit in the full value of the alternate as priced in the Contractor’s Bid.
i) BASE BID
The Base Bid is the price quoted for the work before alternates are considered.
j) HAZARDOUS SUBSTANCE
The term Hazardous Substance is defined to include the following:
(1) any asbestos or any material which contains any hydrated mineral silicate, including
chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or
non-friable;
(2) any polychlorinated biphenyls (“PCBs”), or PCB-containing materials, or fluids;
(3) radon;
(4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or
solid, liquid or gaseous waste;
(5) any pollutant or contaminant (including but not limited to petroleum, petroleum
hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas
exploration or production waste, any natural gas, synthetic gas or any mixture thereof,
lead, or other toxic metals) which in its condition, concentration or area of release could
have a significant effect on human health, the environment, or natural resources;
(6) any substance that, whether by its nature or its use, is subject to regulation or requires
environmental investigation, monitoring, or remediation under any federal, state, or
local environmental laws, rules, or regulations;
(7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I)
(including those defined by Section 9001(1) of the 1984 Hazardous and Solid Waste
Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901
et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas
Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled
with any substance; and
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(8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and
toxic substance as those or similar terms are defined under any federal, state, or local
environmental laws, rules, or regulations.
k) OTHER DEFINITIONS
As used in the Contract Documents, the following additional terms have the following
meanings:
(1) “provide” means to furnish, install, fabricate, deliver and erect, including all services,
materials, appurtenances and other expenses to complete in place, ready for operation
or use;
(2) “shall” means the action of the party to which reference is being made is mandatory;
(3) “as required” means as prescribed in the Contract Documents; and
(4) “as necessary” means all action essential or needed to complete the work in accordance
with the Contract Documents and applicable laws, ordinances, construction codes, and
regulations.
1.2 EXECUTION, CORRELATION AND INTENT
(a) The Building Construction Services Agreement shall be signed by duly authorized
representatives of the Owner and Contractor as provided in the Agreement.
(b) Execution of the Building Construction Services Agreement by the Contractor is a
representation that the Contractor has visited the site, become familiar with local
conditions, including but not limited to subsurface conditions, under which the Work is to
be performed and correlated personal observations with requirements of the Contract
Documents.
(c) The intent of the Contract Documents is to include all items necessary for the proper
execution and completion of the Work by the Contractor. The Contract Documents are
complementary, and what is required by one shall be as binding as if required by all;
performance by the Contractor shall be required only to the extent consistent with the
Contract Documents and reasonably inferable from them as being necessary to produce the
intended results.
(d) Organization of the Specifications into divisions, sections, and articles, and arrangement
of Drawings shall not control the Contractor in dividing the Work among Subcontractors
or in establishing the extent of Work to be performed by any trade.
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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 Contractor shall not perform such Work
without having obtained a clarification from the Architect/Engineer and resolution by the
Owner. The Owner's decision as to the appropriate resolution of a conflict or discrepancy
shall be final. Should the Drawings or the Specifications disagree within themselves or
with each other; the Base Bid will be based on the most expensive combination of quality
and quantity of Work indicated.
(g) Deviations from Contract Documents shall be made only after written approval is
obtained from Architect/Engineer and Owner, as provided in Article 7.
(h) The intention of the Contract Documents is to include all materials, labor, tools,
equipment, utilities, appliances, accessories, services, transportation, and supervision
required to completely perform the fabrication, erection and execution of the Work in
its final position.
(i) The most recently issued Drawing or Specification takes precedence over previous
issues of the same Drawing or Specification. In the event of a conflict, the order of
precedence of interpretation of the Contract Documents is as follows:
(1) Amendments (see Paragraph 7.2 for order of precedence between Amendments);
(2) the Building Construction Services Agreement;
(3) addenda, with those addenda of later date having precedence over those of an earlier
date;
(4) the Supplementary General Conditions and Special Provisions, if any;
(5) the General Conditions for Building Construction;
(6) the Specifications and Drawings.
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1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER’S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and
shall remain the property of the Owner and are, with the exception of the Contract set for each
party, to be returned to the Owner upon request at the completion of the Work.
1.4 CAPITALIZATION
Terms capitalized in these General Conditions include those which are:
(1) specifically defined in these General Conditions (except the terms defined in Subparagraph
1.1(j), which terms are of common grammatical usage and are not normally capitalized);
(2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and
Clauses;
(3) the titles of other documents published or used by the Owner as manuals or official policy
statements; or
(4) proper nouns or other words required under standard grammatical rules to be capitalized.
ARTICLE 2 THE OWNER
2.1 DEFINITION OF OWNER
The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in
the Building Construction Services Agreement, and is referred to throughout the Contract
Documents as if singular in number. The term “Owner” means the Owner or the Owner’s
authorized representatives.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
(a) The Owner shall furnish the most recent survey describing the physical characteristics,
legal limits, utility locations, and a permanent benchmark for the site of the Project. The
Owner shall also furnish any environmental site assessments that may have been given to
the Owner or conducted for the property upon which the Project is to be constructed. THIS
INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO
MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE. BY
FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT,
WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART,
IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER
SHALL HAVE NO LIABILITY FOR THIS MATERIAL.
(b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall
secure and pay for necessary approvals, easements, assessments, and charges required for
construction, use, or occupancy of permanent structures or for permanent changes in
existing facilities.
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(c) Information or services under the Owner’s control shall be furnished by the Owner with
reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent
upon the Contractor to identify, establish, and maintain a current schedule of latest dates
for submittal and approval, as required in Paragraph 3.10, including when such information
or services must be delivered. If Owner delivers the information or services to the
Contractor as scheduled and Contractor is not prepared to accept or act on such information
or services, then Contractor shall reimburse Owner for all extra costs incurred of holding,
storage, or retention, including redeliveries by the Owner to comply with the current
schedule.
(d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished
electronic copies of the Drawings and Specifications for bid purposes and one hard copy
approved by Building Inspections upon execution of the Contract. Contractor may obtain
additional copies by paying the cost of additional printing or reproduction.
(e) The obligations described above are in addition to other duties and responsibilities of the
Owner enumerated in the Contract Documents and especially those in respect to Article 6
(Construction by Owner or by Separate Contractors), Article 9 (Payments and
Completion), and Article 11 (Insurance and Bonds).
(f) The Owner shall forward all instructions to the Contractor through the Architect/Engineer,
except for the Owner's Notice to Proceed and the Owner’s decision to carr y out Work as
described in Paragraph 2.4.
(g) The Owner’s employees, agents, and consultants may be present at the Project site during
performance of the Work to assist the Architect/Engineer in the performance of the
Architect/Engineer’s duties and to verify the Contractor’s record of the number of
workmen employed on the Work, their occupational classification, the time each is
engaged in the Work, the equipment used in the performance of the Work, and for purpose
of verification of Contractor’s Applications for Payment.
2.3 OWNER’S RIGHT TO STOP THE WORK
If the Contractor fails to correct any portion of the Work which is not in accordance with the
requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fai ls to
carry out all or any part of the Work in accordance with the Contract Documents, the Owner,
by written order, may order the Contractor to stop the Work, or any portion of the Work, until
the cause for the order has been eliminated. The right of the Owner however, to stop the Work
shall not create or imply a duty on the part of the Owner to exercise this right for the benefit
of the Contractor or any other person or entity. The rights of the Owner under this Paragraph
2.3 shall be in addition to, and not in restriction of, the Owner’s rights under Paragraph 12.2.
2.4 OWNER’S RIGHT TO CARRY OUT THE WORK
If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants,
or obligations of the Contract Documents, and fails or refuses to correct any failure or refusal
with diligence and promptness within fourteen (14) days after receipt of notice from the Owner,
the Owner may correct the Contractor’s failure or refusal or cause such failure or refusal to be
corrected, without affecting, superseding, or waiving any other contractual, legal, or equitable
remedies the Owner has, including but not limited to the Owner’s termination rights under
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Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost
of correction, including Architect/Engineer's compensation for additional services and
expenses made necessary by the failure or refusal of the Contractor from payments then or
thereafter due to the Contractor. The cost of correction is subject to verification (but not
approval) by the Architect/Engineer. If payments then or thereafter due the Contractor are not
sufficient to cover the cost of correction, the Contractor shall pay the difference to the Owner.
2.5 NOTICE TO PROCEED
After final execution of the Contract and receipt and approval of the required performance and
payment bonds and evidence of required insurance, the Owner will issue a written notice to
proceed with the Work, including the designated Contract Time within which Substantial
Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a
written notice to proceed through no fault of the Contractor, the Contractor shall be entitled
only to an equitable adjustment of the Contract Time, if properly claime d pursuant to the
requirements of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the
Contract Sum whatsoever for this reason.
ARTICLE 3 THE CONTRACTOR
3.1 DEFINITION OF CONTRACTOR
The Contractor is the person or business entity identified as such in the Building Construction
Services Agreement, and is referred to throughout the Contract Documents as if singular in
number. The term “Contractor” means the Contractor or the Contractor’s authorized
employees or representatives.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
CONTRACTOR
(a) The Contractor shall carefully check, study, and compare the Contract Documents with
each other and shall at once report to the Architect/Engineer in writing any inconsistency,
ambiguity, error, omission, conflict, or discrepancy the Contractor may discover. The
Contractor shall also verify all dimensions, field measurements, and field conditions before
laying out the Work. The Contractor will be held responsible for any subsequent error,
omission, conflict, or discrepancy which might have been avoided by the above-described
check, study, comparison, and reporting. In the event the Contractor continues to work on
an item where an inconsistency, ambiguity, error, omission, conflict, or discrepancy exists
without obtaining such clarification or resolution or commences an item of the Work
without giving written notice of an error, omission, conflict, or discrepancy that might have
been avoided by the check, study, and comparison required above, it shall be deemed that
the Contractor bid and intended to execute the more stringent, higher quality, or state of
the art requirement, or accepted the condition as is in the Contract Documents, without any
increase to the Contract Sum or Contract Time. The Contractor shall also be responsible to
correct any failure of component parts to coordinate or fit properly into final position as a
result of Contractor's failure to give notice of and obtain a clarification or resolution of any
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error, omission, conflict, or discrepancy, without any right to any increase to the Contract
Sum or Contract Time.
(b) The Contractor shall perform the Work in accordance with the Contract Documents and
submittals approved pursuant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
(a) The Contractor shall supervise and direct the Work, using the Contractor’s best skill and
attention. The Contractor shall be solely responsible for and have control over construction
means, methods, techniques, sequences, and procedures and for coordinating all portions
of the Work, unless the Contract Documents set forth specific instructions concerning these
matters.
(b) The Contractor shall be responsible to the Owner for the acts and omissions of the
Contractor’s employees, Subcontractors, Sub-subcontractors, and their respective agents
and employees, and any other persons performing portions of the Work under a subcontract
with the Contractor or with any Subcontractor, and all other persons or entities for which
the Contractor is legally responsible. All labor shall be performed by mechanics that are
trained and skilled in their respective trades. Standards of work required throughout shall
be of a quality that will bring only first class results. Mechanics whose work is
unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise
objectionable shall be dismissed promptly from the Work and immediately replaced with
competent, skilled personnel. Any part of the Work adversely affected by the acts or
omissions of incompetent, unskilled, careless, or objectionable personnel shall be
immediately corrected by the Contractor.
(c) The Contractor shall not be relieved of its obligation to perform the Work in accordance
with the Contract Documents either by activities or duties of the Architect/Engineer in the
Architect/Engineer’s administration of the Contract, or by tests, inspections, or approvals
required or performed by persons other than the Contractor.
(d) The Contractor shall be responsible for inspection of portions of Work already performed
under this Contract to determine that such portions are in proper condition to receive
subsequent Work. The Contractor's responsibility under this paragraph will not in any way
eliminate the Architect/Engineer's responsibility to the Owner under the
Architect/Engineer/Owner Agreement.
(e) Any Contractor, Subcontractor, Sub-subcontractor, or separate contractor who commences
Work over, in, or under any surface prepared by the Owner or by any othe r contractor,
subcontractor, sub-subcontractor or separate contractor without the Contractor having
given written notice to the Architect/Engineer of the existence of any faulty surface or
condition in the surface that prevents achieving the quality of workmanship specified by
the Contract Documents and without having obtained the prior approval of the
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Architect/Engineer and the Owner to proceed is deemed to have accepted the surface or
condition in the surface as satisfactory at the commencement of such Work. Any
unsatisfactory Work subsequently resulting from such a faulty surface or condition in the
surface that was not pre-approved by the Architect/Engineer or the Owner after notice as
provided above may be rejected and replacement required, without any increase to the
Contract Sum or Contract Time.
(f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing
basis by the Contractor. The Contractor is solely responsible for any errors made in
establishing or maintaining proper grades, lines, levels, or benchmarks. Each Contractor
for his own Work shall verify all grades, lines, levels, and dimensions as indicated on
Drawings. He shall report any errors, omissions, conflicts, or inconsistencies to
Architect/Engineer before commencing any Work affected by these conditions. Contractor
shall establish and safeguard benchmarks in at least two widely separated places and, as
Work progresses, establish benchmarks at each level and lay out partitions on rough floor
in exact locations as guides to all trades. The Contractor shall, from the permanent
benchmark provided by the Owner, establish and maintain adequate horizontal and vertical
control.
3.4 LABOR AND MATERIALS
(a) Except as is otherwise specifically provided in the Contract Documents as being the
responsibility of the Owner, the Contractor shall provide and pay for labor, materials,
equipment, tools, construction equipment and machinery, water, heat, utilities,
transportation, and other facilities and services necessary for proper execution and
completion of the Work, whether temporary or permanent and whether or not incorporated
or to be incorporated in the Work.
(b) The Contractor shall enforce strict discipline and good order among the Contractor’s
employees and other persons carrying out the Contract. The Contractor shall not permit
employment of unfit persons or persons not skilled in tasks assigned to them.
(c) The Contractor shall give preference, when qualified labor is available to perform the Work
to which the employment relates, to all labor hired for the Project in the following order:
(1) to bona fide residents of the City of Denton, Texas;
(2) to bona fide residents of the County of Denton, Texas;
(3) to bona fide residents of the State of Texas;
(4) to bona fide residents of the United States.
3.5 WARRANTY
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(a) General Warranty. The Contractor warrants to the Owner that all Work shall be
accomplished in a good and workmanlike manner and that all materials and equipment
furnished under the Contract will be of good quality, new (unless otherwise specified), and
free from faults or defects, and that the Work will otherwise conform to the Contract
Documents. Work not conforming to these requirements, including substitutions not
properly approved and authorized, will be considered defective or nonconforming. The
Contractor’s warranty excludes any remedy for damage or defect caused by abuse,
modifications not executed by the Contractor, improper or insufficient maintenance,
improper operation, or normal wear and tear under normal usage. If required by the
Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment. The commencement date, duration, and other
conditions related to the scope of this general warranty are established in Subparagraphs
9.9 (a) and 12.2(b) of these General Conditions. THE GENERAL WARRANTY
PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT
LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR
PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH WARRANTY
SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE MATERIALS
AND RE-EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER
TO THE CONTRACTOR WITHIN A PERIOD OF ONE (2) YEAR AFTER
SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A LATENT
DEFECT, WITHIN TWO (2) YEARS AFTER DISCOVERY BY THE OWNER OF THE
LATENT DEFECT.
(b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition
precedent to final payment, the terms and conditions of all special warranties required
under the Contract Documents.
3.6 TAXES
The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the
provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall
not be liable for, or pay the Contractor's cost of, such sales and use t axes which would
otherwise be payable in connection with the purchase of tangible personal property furnished
and incorporated into the real property being improved under the Contract Documents or the
purchase of materials, supplies and other tangible personal property, other than machinery or
equipment and its accessories and repair and replacement parts, necessary and essential for
performance of the Contract which is to be completely consumed at the job site. The Contractor
shall issue an exemption certificate in lieu of the tax on such purchases.
3.7 PERMITS, FEES AND NOTICES
(a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton
Building Permit. The Contractor and Subcontractors will apply and arrange for the issuance
of all other required permits, and will not be required to pay a fee for any City of Denton
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permits required for the Project. The Owner will pay all service extension charges,
including tap fees, assessed by the Water Utilities Department.
(b) The Contractor shall comply with and give notices required by laws, ordinances, rules,
regulations, and lawful orders of governmental entities or agencies applying to
performance of the Work.
(c) Except as provided in Subparagraph (d) below, it is not the Contractor’s responsibility to
ascertain that the Contract Documents are in accordance with applicable laws, ordinances,
construction codes, and rules and regulations. However, if the Contractor observes that
portions of the Contract Documents are at variance with applicable laws, ordinances,
construction codes, rules or regulations, the Contractor shall promptly notify the
Architect/Engineer and the Owner in writing, and necessary changes shall be accomplished
by appropriate Amendment.
(d) If the Contractor performs Work knowing it to be contrary to laws, ordinances, construction
codes, or rules and regulations without notifying the Architect/Engineer and the Owner,
the Contractor shall assume full responsibility for the Work and shall bear the attributable
costs of the correction of the Work and any other Work in place that may be adversely
affected by the corrective work.
3.8 ALLOWANCES
(a) The Contractor shall include in the Contract Sum all allowances stated in the Contract
Documents. Items covered by allowances shall be supplied for the amounts identified in
the Contract and by persons or entities as the Owner may direct, but the Contractor shall
not be required to employ persons or entities against which the Contractor makes
reasonable objection.
(b) Unless otherwise provided in the Contract Documents:
(1) materials and equipment under an allowance shall be selected promptly by the Owner
to avoid delay in the Work;
(2) the amount of each allowance shall cover the cost to the Contractor of materials and
equipment delivered at the site less all exempted taxes and applicable trade discounts;
(3) the amount of each allowance includes the Contractor’s costs for unloading and
handling at the site, labor, installation costs, overhead, profit, and other expenses
contemplated for stated allowance Work;
(4) whenever costs are more than or less than allowances, the Contract Sum shall be
adjusted accordingly by Change Order. The amount of the Change Order shall reflect:
(i) the difference between actual costs and the allowances under Clause (b) (2); and
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(ii) changes in Contractor’s costs under Clause (b) (3);
(5) the Owner retains the right to review and approve Subcontractors selected by the
Contractor to perform work activities covered by allowances.
3.9 SUPERINTENDENT
The Contractor shall employ a competent superintendent and necessary assistants who shall be
in attendance at the Project site during performance of the Work. The superintendent shall
represent the Contractor, and communications given to the superintendent shall be as binding
as if given to the Contractor. Important communications shall be confirmed in writing. Other
communications shall be similarly confirmed on written request in each case. The Owner
reserves the right to request that the Contractor replace its superintendent at any time and the
Contractor will replace said superintendent at the Owner’s direction.
3.10 CONTRACTOR’S CONSTRUCTION SCHEDULES
(a) The Contractor shall, immediately after award of the Contract and before submittal of the
first Application for Payment, prepare and submit the construction schedule for the
Architect/Engineer's and Owner's information, review, and approval in accordance with
the following provisions:
(1) Unless otherwise approved in writing by the Owner, the construction schedule shall not
exceed the Contract Time limits currently in effect under the Contract Documents and
shall provide for expeditious and practicable execution of the Work.
(2) The construction schedule shall include all shop drawing and submittal data
requirements, indicating for each:
(i) the latest date to be submitted by the Contractor; and
(ii) the latest date for approval by the Architect/Engineer.
(3) The construction schedule shall be in the form of a critical path management schedule,
and shall indicate each critical task (the “predecessor”) of all the major construction
activities of the Work in a logical and sequential order (the “project network”) which
requires completion prior to commencement of the task next following (the
“successor”). Each task shall be identified with:
(i) actual work time, exclusive of slack time, for accomplishment;
(ii) the latest start date;
(iii) the latest finish date;
(iv) the amount of float associated with each task;
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(v) the amount of labor, material, and equipment associated with each task; and
(vi) the percentage of completion as of the date of the current schedule.
(4) The construction schedule shall be revised and updated monthly to reflect the actual
status of the Work and shall be submitted with each Application for Payment.
(5) On or before the first day of each month, following the date of commencement of the
Work as stated in the notice to proceed, the Contractor shall prepare and submit to the
Architect/Engineer and the Owner an up-to-date status report of the progress of the
various construction phases of the Work in the form of an updated construction
schedule. This status report shall consist of a time scale drawing indicating actual
progress of the various phases of the Work and the percentage of completion of the
entire Work. The original construction schedule shall be updated or changed to indicate
any adjustments to the Contract Time granted by the Owner. The updated schedule
must be submitted with the Contractor’s Application for Payment. No application will
be certified without a satisfactory update to the construction schedule.
(6) The construction schedule will also be revised to show the effect of change orders and
other events on Contract Time. No request for an increase in Contract Time will be
considered unless it is accompanied by a schedule revision demonstrating the amount
of time related to the cause of the request. If the Contractor’s status schedules reflect
that the Contractor has fallen behind the pace required to complete the Work within the
Contract Time, through no fault of the Owner, the Contractor shall prepare a recovery
schedule demonstrating how it intends to bring its progress back within the Contract
Time. This recovery schedule shall be in a form acceptable to the Owner.
(7) Costs incurred by the Contractor in preparing and maintaining the required construction
schedule, any updated schedule, and any recovery schedule required by the Owner will
not be paid as an additional or extra cost and shall be included in the Contract Sum.
(8) The Contract Sum is deemed to be based upon a construction schedule requiring the
full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE
ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON AN
EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND
COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED
EARLY COMPLETION DATE.
(b) The Contractor shall also prepare and keep current, for the Architect/Engineer’s
approval, a schedule of submittals which is coordinated with the Contractor’s
construction schedule and allows the Architect/Engineer reasonable time to review
submittals.
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(c) The Contractor shall conform to the most recent schedules approved as to form by
the Architect/Engineer and the Owner. Any subsequent revisions made by the
Contractor to schedules in effect shall conform to the provisions of Subparagraph
3.10(a)
(d) If the Work falls behind the approved construction schedule, the Contractor shall
take such steps as may be necessary to improve his progress, and the
Architect/Engineer and the Owner may require him to increase the number of shifts,
overtime operations, days of work, or the amount of construction plant, and to
submit for approval revised schedules in the form required above in order to
demonstrate the manner in which the agreed rate of progress will be regained, all
without additional cost to the Owner.
3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE
The Contractor shall maintain at the Project site for the Owner one record copy of the
Drawings, Specifications, addenda, and Amendments in good order and marked currently to
record changes and selections made during construction, and in addition shall maintain at the
Project site approved Shop Drawings, Product Data, Samples, and similar required submittals.
These shall be available to the Architect/Engineer and shall be delivered to the
Architect/Engineer for submittal to the Owner upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
(a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for
the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier,
or distributor to illustrate some portion of the Work.
(b) Product Data are illustrations, standard schedules, performance charts, instructions,
brochures, diagrams, and other information furnished by the Contractor to illustrate
materials or equipment for some portion of the Work.
(c) Samples are physical examples which illustrate materials, equipment, or workmanship and
establish standards by which the Work will be judged.
(d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract
Documents. The purpose of their submittal is to demonstrate for those portions of the Work
for which submittals are required the way the Contractor propos es to conform to the
information given and the design concept expressed in the Contract Documents. Review
by the Architect/Engineer is subject to the limitations of Paragraph 4.2.
(e) The Contractor shall review, approve and submit to the Architect/Engineer Shop Drawings,
Product Data, Samples, and similar submittals required by the Contract Documents with
reasonable promptness and in such sequence as to cause no delay in the Work or in the
activities of the Owner or of separate contractors. Submittals made by the Contractor which
are not required by the Contract Documents may be returned without action.
(f) The Contractor shall perform no portion of the Work requiring submittal and review of
Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal
has been approved by the Architect/Engineer. Work requiring this submittal and review
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shall be in accordance with approved submittals and any identified exceptions noted by the
Architect/Engineer.
(g) By approving and submitting Shop Drawings, Product Data, Samples and similar
submittals, the Contractor represents that the Contractor has determined and verified
materials, field measurements, and related field construction criteria, or will do so, and has
checked and coordinated the information contained within submittals with the
requirements of the Work and of the Contract Documents. The Contractor's attention is
directed to Paragraph 3.2 of these General Conditions and the requirements stated in that
Paragraph.
(h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes,
additions, deletions or omissions from requirements of the Contract Documents by the
Architect/Engineer's approval of Shop Drawings, Product Data, Samples, or similar
submittals unless the Contractor has specifically informed the Architect/Engineer in
writing of such substitutions, changes, additions, deletions, omissions, or deviations
involved in the submittal at the time of submittal and the Architect/Engineer, subject to a
formal Change Order signed by the Owner, Architect/Engineer and Contractor, has given
written approval to the specific substitutions, changes, additions, deletions, omissions, or
deviations. The Contractor shall not be relieved of responsibility for errors or omissions in
Shop Drawings, Product Data, Samples, or similar submittals by the Architect/Engineer's
approval thereof. Further, notwithstanding any approval of a submittal by the
Architect/Engineer, the Contractor shall be responsible for all associated Project costs,
including costs of coordination’s, modifications, or impacts, direct or indirect, resulting
from any and all substitutions, changes, additions, deletions, omissions, or deviations,
whether or not specifically identified by the Contractor to the Architect/Engineer at the
time of the above-mentioned submittals, including additional consulting fees, if any, in any
and all accommodations associated with such substitutions, changes, additions, deletions,
omissions, or deviations to the requirements of the Contract Documents.
(i) The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings,
Product Data, Samples, or similar submittals, to additional revisions other than those
requested by the Architect/Engineer on previous submittals. In the absence of such written
notice, the Architect/Engineer’s approval of a resubmission shall not apply to the additional
revisions not requested.
(j) Informational submittals upon which the Architect/Engineer is not expected to take
responsive action may be so identified in the Contract Documents.
(k) When professional certification of performance criteria of materials, systems, or equipment
is required by the Contract Documents, the Architect/Engineer shall be entitled to rely upon
the accuracy and completeness of such calculations and certifications.
3.13 USE OF THE PROJECT SITE
The Contractor shall confine operations at the Project site to areas permitted by law,
ordinances, permits, and the Contract Documents and shall not unreasonably encumber the
Project site with materials or equipment.
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3.14 CUTTING AND PATCHING
(a) The Contractor shall be responsible for cutting, fitting or patching required to complete
the Work or to make its parts fit together properly.
(b) The Contractor shall not damage or endanger a portion of the Work or any fully or
partially completed construction of the Owner or separate contractors by cutting,
patching, or otherwise altering the construction, or by excavating. The Contractor sha ll
not cut or otherwise alter the construction by the Owner or a separate contractor except
with the written consent of the Owner and of the separate contractor; consent shall not
be unreasonably withheld. The Contractor shall not unreasonably withhold from the
Owner or a separate contractor the Contractor’s consent to cutting or otherwise altering
the Work.
(c) A Hot Work Permit must be obtained from the City of Denton’s Facilities Management
Department, 869 S. Woodrow Lane, Denton, Texas (940 349-7200) for any temporary
operation involving open flames or producing heat and/or sparks. This includes, but is
not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and
Welding.
3.15 CLEANING UP
(a) The Contractor shall keep the Project site and surrounding area free from accumulation
of waste materials or rubbish caused by operations under the Contract. Upon the
completion of the Work the Contractor shall remove from and about the Project site all
waste materials, and rubbish, and all of the Contractor’s tools, construction equipment,
machinery, and surplus materials.
(b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may
clean up and the Owner’s cost of cleaning up shall be charged to the Contractor.
3.16 ACCESS TO WORK
The Contractor shall provide the Owner and the Architect/Engineer access to the Work in
preparation and progress wherever located during the course of construction.
3.17 TESTS AND INSPECTIONS
(a) Tests, inspections, and approvals of portions of the Work required by the Contract
Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or
agencies having jurisdiction over the Work shall be made at appropriate times. Unless
otherwise provided, the Contractor shall make arrangements for such tests, inspections, and
approvals with an independent testing laboratory or entity selected or contracted by the
Owner or with the appropriate governmental entity or agency, and the Owner shall bear all
related costs of tests, inspections, and approvals. The Contractor shall give the
Architect/Engineer timely notice of when and where tests and inspections are to be made
so the Architect/Engineer may observe such procedures. The Owner shall bear costs of
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tests, inspections, or approvals which become requirements after bids or proposals are
received.
(b) If the Architect/Engineer, the Owner or other public authorities having jurisdiction over
the Work determine that portions of the Work require additional testing, inspection or
approval not included under Subparagraph 3.17(a), the Architect/Engineer will, upon
written authorization from the Owner, instruct the Contractor to make arrangements for
such additional testing, inspection or approval by an entity acceptable to the Owner, and
the Contractor shall give timely notice to the Architect/Engineer of when and where tests
and inspections are to be made so that the Architect/Engineer may observe such
procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c).
(c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b)
reveal deficiencies or nonconformities in the Work, the Contractor shall bear all costs made
necessary to correct the deficiencies or nonconformities, including those of repeated
procedures and compensation for the Architect/Engineer’s services and expenses, if any.
The Contractor shall bear the costs of any subsequent testing, inspection, or approval of
the corrected Work.
(d) Required certificates of testing, inspection or approval shall, unless otherwise required by
the Contract Documents, be secured by the Contractor and promptly delivered to the
Architect/Engineer.
(e) If the Architect/Engineer is to observe tests, inspections or approvals required by the
Contract Documents, the Architect/Engineer will do so promptly and, where practicable,
at the normal place of testing or inspection.
(f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly
to avoid unreasonable delay in the Work.
3.18 ROYALTIES AND PATENTS
The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL
COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND
ARCHITECT/ENGINEER HARMLESS FROM ANY AND ALL SUITS OR CLAIMS
FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF WHETHER OR NOT
THE OWNER OR THE ARCHITECT/ENGINEER SPECIFIED A PARTICULAR
DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY
BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY
INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor
has reason to believe that a particular design, process or product specified infringes a patent,
the Contractor shall immediately notify the Owner and the Architect/Engineer of same.
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3.19 INDEMNIFICATION
(a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE
OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE
ARCHITECT/ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS,
LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES FOR
PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER
HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR
PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY
ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF
THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR
BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY
LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS,
EMPLOYEES, SUBCONTRACTORS, OR SUB-SUBCONTRACTORS AND THEIR
RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR ANY OTHER
PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS LEGALLY
RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT
THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO
ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR FAULT OF THE
OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS,
OR OF THE ARCHITECT/ENGINEER, AND IN THE EVENT OF JOINT AND
CONCURRENT NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER,
AND THE ARCHITECT/ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY,
SHALL BE APPORTIONED IN ACCORDANCE WITH THE LAW OF THE STATE
OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL
IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT
WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE
PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE
PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY
RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
ENTITY.
(b) In claims against any person or entity indemnified under this Paragraph 3.19 by an
employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by
them or anyone for whose acts they may be liable, the indemnification obligation under
this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the Contractor or a Subcontractor under workers
compensation acts, disability benefit acts or other employee benefit acts.
(c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability
which could result to or be created for the Owner, its officers, agents, or employees, or the
Architect/Engineer pursuant to State or Federal laws or regulations relating to pollution of
the environment and State or Federal laws or regulations relating to the occupational safety
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and health of workers. The Contractor specifically agrees to comply with the above -
mentioned laws and regulations in the performance of the Work by the Contractor and that
the obligations of the Owner, its officers, agents, and employees, and the
Architect/Engineer under the above-mentioned laws and regulations are secondary to those
of the Contractor.
ARTICLE 4 CONTRACT ADMINISTRATION
4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER)
(a) The design professional is the person lawfully licensed to practice architecture or
engineering or a firm or other business entity lawfully practicing architecture/engineering
identified as such in the formal Building Construction Services Agreement and is referred
to throughout the Contract Documents as if singular in number. The term
“Architect/Engineer” means the Architect/Engineer or the Architect/Engineer’s authorized
representative. The Owner may, at its option, designate a qualified Owner representative
to serve as the Architect/Engineer on the Project instead of an outside firm or person. In
such event, the references in these General Conditions that refer to the Architect/Engineer
shall apply to the Owner-designated Architect/Engineer representative and the Owner-
designated Architect/Engineer representative shall be accorded that same status by the
Contractor.
(b) In the event the Architect/Engineer is an outside person or firm and the
Architect/Engineer's employment is terminated, the Owner may, at its option, contract with
a new outside Architect/Engineer to replace the former, or may designate a qualified Owner
representative to serve as the Architect/Engineer. The replacement Architect/Engineer,
whether an Owner representative, an independent Architect/Engineer or any other qualified
person or entity, shall be regarded as the Architect/Engineer for all purposes under the
Contract Documents and shall be accorded that same status by the Contractor. Any dispute
in connection with such appointment shall be reviewed and settled by the Owner, whose
decision shall be final and binding.
(c) Owner reserves the right to appoint a representative empowered to act for the Owner during
the Construction Phase and to supersede the Architect/Engineer’s Construction Phase
responsibility. Similarly, from time to time the Owner may expand or reduce the Owner’s
delegation of powers to the Architect/Engineer, with the Owner notifying the Contractor
of any such changes. The Architect/Engineer shall not be construed as a third party
beneficiary to the Contract and can in no way object to any expansion or reduction of
powers as set forth in this Subparagraph (c). In no event, however, shall the Owner have
control over charge of, or be responsible for, construction means, methods, techniques,
sequences, or procedures, or for safety precautions or programs in connection with the
Work since these are solely the Contractor’s responsibility. The Owner will not be
responsible for the Contractor’s failure to carry out the Work in accordance with the
Contract Documents. The Owner will not have control over or charge of and will not be
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responsible for acts or omissions of Contractor, Subcontractors, or their agents or
employees, or of any other persons performing portions of the Work.
4.2 ARCHITECT/ENGINEER’S RESPONSIBILITIES DURING CONSTRUCTION
(a) The Architect/Engineer will administer the Contract as described in the Contract
Documents and in accordance with the terms of the Architect/Engineer's agreement with
the Owner, where applicable, subject to the direction and approval of the Owner. If
requested by the Contractor, the provisions of the Owner/Architect/Engineer Agreement
will be made available to the Contractor.
(b) The Architect/Engineer shall provide, during performance of the Work, adequate and
competent periodic on-site construction observation, periodically visiting the Project site
to the extent necessary to personally familiarize themselves with the progress and quality
of the Work, and to determine if the Work is proceeding in accordance with the Contract
Documents. The Architect/Engineer shall not, however, be required to make continuous
on-site inspections to check the Work. Field reports of each visit shall be prepared by the
Architect/Engineer and submitted to the Owner. The Architect/Engineer shall employ all
reasonable measures to safeguard the Owner against defects and nonconformities in the
Work. The Architect/Engineer shall not be responsible for the construction means,
methods, techniques, sequences of procedures, nor for the safety precautions and programs
employed in connection with the Work. The Architect/Engineer will, however,
immediately inform the Owner whenever defects or nonconformities in the Work are
observed, or when any observed actions or omissions are undertaken by the Contractor or
any Subcontractor which are not in the best interests of the Owner or the Project.
(c) The Architect/Engineer and the Owner will not have control over or charge of and will not
be responsible for construction means, methods, techniques, sequences, or procedures, or
for safety precautions and programs in connection with the Work, since these are solely
the Contractor’s responsibility as provided in Paragraph 4.3. The Architect/Engineer and
the Owner will not be responsible for the Contractor’s failure to carry out the Work in
accordance with the Contract Documents. The Architect/Engineer and the Owner will not
have control over or charge of and will not be responsible for acts or omissions of the
Contractor, Subcontractors, Sub-subcontractors, or their respective agents or employees,
or of any other persons performing portions of the Work for which the Contractor is
responsible.
(d) Except as otherwise provided in the Contract Documents or when direct communications
have been specially authorized, the Owner and Contractor shall endeavor to communicate
through the Architect/Engineer. Communications by and with the Architect/Engineer’s
consultants shall be through the Architect/Engineer. Communications by and with
Subcontractors and material suppliers shall be through the Contractor. Communications by
and with separate contractors will be through the Owner. The Contractor shall provide
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written confirmation of communications made directly with the Owner and provide copies
of such confirmation to the Architect/Engineer.
(e) Based on the Architect/Engineer’s observations and evaluations of the Contractor’s
Applications for Payment, the Architect/Engineer will review and certify the amounts due
the Contractor and will issue Certificates for Payment in such amounts.
(f) The Architect/Engineer and the Owner will each have authority to reject Work which does
not conform to the Contract Documents. Whenever the Architect/Engineer considers it
necessary or advisable for implementation of the intent of the Contract Documents, the
Architect/Engineer will have authority to require additional inspection or testing of the
Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work is
fabricated, installed or completed. However, neither this authority of the
Architect/Engineer nor a decision made in good faith either to exercise or not to exercise
such authority shall give rise to any duty or responsibility of the Architect/Engineer to the
Contractor, Subcontractors, material and equipment suppliers, their agents or employees,
or other persons performing portions of the Work.
(g) The Architect/Engineer will review and approve or take other appropriate action upon the
Contractor’s submittals such as Shop Drawings, Product Data, and Samples, but only for
the limited purpose of checking for conformance with information given and the design
concept expressed in the Contract Documents. The Architect/Engineer’s action will be
taken with such reasonable promptness as to not delay the Work or the activities of the
Owner, Contractor, or separate contractors. Review of such submittals is not conducted for
the purpose of determining the accuracy and completeness of other details such as
dimensions and quantities, or for substantiating instructions for installation or performance
of equipment or systems, all of which remain the responsibility of the Contractor as
required by the Contract Documents. The Architect/Engineer’s review of the Contractor’s
submittals shall not relieve the Contractor of any obligations under Paragraphs 3.3, 3.5,
and 3.12. The Architect/Engineer’s review shall not constitute approval of safety
precautions or, unless otherwise specifically stated in writing by the Architect/Engineer, of
any construction means, methods, techniques, sequences, or procedures. The
Architect/Engineer’s approval of a specific item shall not indicate approval of an assembly
of which the item is a component.
(h) The Architect/Engineer will prepare Change Orders and may authorize minor changes in
the Work as provided in Paragraph 7.3.
(i) The Architect/Engineer will conduct inspections to determine the date or dates of
Substantial Completion and the date of final completion, will receive and forward to the
Owner for the Owner’s review and records written warranties and related documents
required by the Contract and assembled by the Contractor, and will issue a final Certificate
for Payment upon compliance with the requirements of the Contract Documents.
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(j) If the Owner and Architect/Engineer agree, the Architect/Engineer will provide one or
more Project representatives to assist in carrying out the Architect/Engineer’s
responsibilities at the site. The duties, responsibilities, and limitations of authority of such
Project representatives shall be as set forth in an exhibit to be incorporated into the Contract
Documents.
(k) The Architect/Engineer will interpret and make recommendations to the Owner concerning
performance under and requirements of the Contract Documents upon written request of
either the Owner or Contractor. The Architect/Engineer’s response to such requests will be
made with reasonable promptness and within any time limits agreed upon. The
Architect/Engineer shall secure the Owner’s written approval before issuing instructions,
interpretations, or judgments to the Contractor which change the scope of the Work or
which modify or change the terms and conditions of any of the Contract Documents.
(l) Interpretations and decisions of the Architect/Engineer will be consistent with the intent of
and reasonably inferable from the Contract Documents and will be in writing or in the form
of Drawings. When making such interpretations and decisions, the Architect/Engineer will
endeavor to secure faithful performance by the Contractor.
(m) The Architect/Engineer’s decisions on matters relating to aesthetic effect will be final if
consistent with the intent expressed in the Contract Documents provided that the
Architect/Engineer has prior written approval of the Owner.
4.3 CLAIMS AND DISPUTES
(a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a
“Claim” means a demand or assertion by one of the parties to the Contract seeking an
adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract
Time, or some other relief in respect to the terms of the Contract Documents. The term also
includes all other disputes between the Owner and the Contractor arising out of or relating
to the Project or the Contract Documents, including but not limited to claims that work was
outside the scope of the Contract Documents. The responsibility to substantiate the Claim
and the burden of demonstrating compliance with this provision shall rest with the party
making the Claim. Except where otherwise provided in the Contract Documents, a Claim
by the Contractor, whether for additional compensation, additional time, or other relief,
including but not limited to claims arising from concealed conditions, MUST BE MADE
BY WRITTEN NOTICE TO THE ARCHITECT/ENGINEER AND THE OWNER
WITHIN FOURTEEN (14) DAYS AFTER OCCURRENCE OF THE EVENT OR
EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the
Contractor, whether for additional compensation, additional time, or other relief, including
but not limited to claims arising from concealed conditions, shall be signed and sworn to
by an authorized corporate officer (if not a corporation, then an official of the company
authorized to bind the Contractor by his signature) of the Contractor, verifying the truth
and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE
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WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE
PROCEDURE AND TIME LIMITS SET OUT IN THIS PARAGRAPH.
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between
the Contractor and the Owner relating to the progress or execution of the Work or the
interpretation of the Contract Documents shall be referred to the Architect/Engineer for
recommendation to the Owner, which recommendation the Architect/Engineer will furnish
in writing within a reasonable time, provided proper and adequate substantiation has been
received. Failure of the Contractor to submit the Claim to the Architect/Engineer for
rendering of a recommendation to the Owner shall constitute a waiver of the Claim.
(c) Continuing Contract Performance. Pending final resolution of a claim the Contractor shall
proceed diligently with performance of the Work and the Owner shall continue to make
payments in accordance with the Contract Documents.
(d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time
associated with concealed or unknown conditions will normally be considered or allowed;
provided, however, that the Contract Sum or Time may be adjusted by the Owner in such
circumstances only if:
(1) a concealed subsurface condition is encountered in the course of performance of the
Work;
(2) a concealed or unknown condition in an existing structure is at variance with conditions
indicated by the Contract Documents; or
(3) an unknown physical condition is encountered below the surface of the ground or in an
existing structure which is of an unusual nature and materially different from those
ordinarily encountered and generally recognized as inherent in the character of the
Work; and
(4) a notice of claim with proper and adequate substantiation is presented pursuant to
Subparagraph 4.3(a) of these General Conditions; and
(5) the Owner and the Architect/Engineer determine that:
(i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to
fully inspect the portion of the Project site where the condition was discovered; and
(ii) the work caused or required by the concealed or unknown condition at issue can be
considered extra work to the extent that additional new Drawings must be prepared and
issued and new construction beyond the scope of the Contract Documents is required.
(e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE
INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS
TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE
ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT/ENGINEER
IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE
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CONTRACTOR AT THE CONTRACTOR’S OWN RISK. THE OWNER AND THE
ARCHITECT/ENGINEER DO NOT GUARANTEE OR WARRANT ANY
INFORMATION SHOWN IN THE PROJECT SITE INFORMATION AND REPORTS.
(f) Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the
Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before
proceeding to execute the Work. Prior notice is not required for claims relating to an
emergency endangering life or property arising under Paragraph 10.3. In addition, the
Contractor's request for an increase in the Contract Sum for an y reason (other than work
performed under emergency conditions) shall be made far enough in advance of required
work to allow the Owner and the Architect/Engineer a sufficient amount of time, without
adversely affecting the construction schedule, to review the request, prepare and distribute
such additional documents as may be necessary to obtain suitable estimates or proposals
and to negotiate, execute and distribute a Change Order for the required work if the
Contractor believes that additional cost is involved for reasons including but not limited
to:
(1) a written interpretation from the Architect/Engineer;
(2) a written order for a minor change in the Work issued by the Architect/Engineer;
(3) failure of payment by the Owner;
(4) termination of the Contract by the Owner;
(5) the Owner’s temporary suspension of all or any portion of the Work where the
Contractor was not at fault; or
(6) other reasonable grounds.
(g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to
person or property because of an act or omission of the Owner, or of any of the Owner's
officers, employees or agents, written, sworn-to notice of any claim for damages or injury
shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail
to enable the Architect/Engineer and the Owner to investigate the matter.
(h) Subcontractor Pass-Through Claims. In the event that any Subcontractor of the Contractor
asserts a claim to the Contractor that the Contractor seeks to pass through to the Owner
under the Contract Documents, any entitlement of the Contractor to submit and assert the
claim against the Owner shall be subject to:
(1) the requirements of Paragraph 4.3 of these General Conditions; and
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(2) the following additional three requirements listed below, all three of which additional
requirements shall be conditions precedent to the entitlement of the Contractor to seek
and assert such claim against the Owner:
(ii) The Contractor shall either (A) have direct legal liability as a matter of contract,
common law, or statutory law to the Subcontractor for the claim that the Subcontractor
is asserting or (B) the Contractor shall have entered into a written liquidating agreement
with the Subcontractor, under which agreement the Contractor has agreed to be legally
responsible to the Subcontractor for pursing the assertion of such claim against the
Owner under the Contract and for paying to the Subcontractor any amount that may be
recovered, less Contractor’s included markup (subject to the limits in the Contract
Documents for any markup). The liability or responsibilities shall be identified in
writing by the Contractor to the Owner at the time such claim is submitted to Owner,
and a copy of any liquidating agreement shall be included by the Contractor in the claim
submittal materials.
(ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its
submittal to Owner and shall have independently evaluated such claim in good faith to
determine the extent to which the claim is believed in good faith to be valid. The
Contractor shall also certify, in writing and under oath to the Owner, at the time of the
submittal of such claim, that the Contractor has made a review, evaluation, and
determination that the claim is made in good faith and is believed to be valid.
(iii) The Subcontractor making the claim to the Contractor shall certify in writing and
under oath that it has compiled, reviewed and evaluated the merits of such claim and
that the claim is believed in good faith by the Subcontractor to be valid. A copy of the
certification by the Subcontractor shall be included by Contractor in the claim submittal
materials.
(3) Any failure of the Contractor to comply with any of the foregoing requirements and
conditions precedent with regard to any such claim shall constitute a waiver of any
entitlement to submit or pursue such claim.
(4) Receipt and review of a claim by the Owner under this Subparagraph shall not be
construed as a waiver of any defenses to the claim available to the Owner under the
Contract Documents or law.
(i) Owner’s Right to Order Acceleration and to Deny Claimed and Appropriate Time
Extensions, in Whole or in Part. The Contractor acknowledges and agrees that
Substantial Completion of the Work by or before the Scheduled Completion Date is of
substantial importance to Owner. The following provisions, therefore, will apply:
(1) If the Contractor falls behind the approved construction schedule for whatever
reason, the Owner shall have the right, in the Owner’s sole discretion, to order the
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Contractor to develop a recovery schedule as described in Paragraph 3.10 or to
accelerate its progress in such a manner as to achieve Substantial Completion on or
before the Contract Time completion date or such other date as the Owner may
reasonably direct and, upon receipt, the Contractor shall take all action necessary
to comply with the order. In such event, any possible right, if any, of the Contractor
to additional compensation for any acceleration shall be subject to the terms of this
Subparagraph (i).
(2) In the event that the Contractor is otherwise entitled to an extension of Contract
Time and has properly initiated a Claim for a time extension in accordance with
Subparagraph 4.3(a) above, the Owner shall have the right, in the Owner’s sole
discretion, to deny all, or any part, of the Claim for extension of Contract Time by
giving written notice to the Contractor provided within fourteen (14) days after
receipt of the Contractor's Claim. If the Owner denies the Contractor's claim for an
extension of Contract Time under this Clause (i)(2), either in whole or in part, the
Contractor shall proceed to prosecute the Work in such a manner as to achieve
Substantial Completion on or before the then existing Scheduled Completion Date.
(3) If the Contractor would have been entitled to a time extension for a reason
specifically allowed under the Contract Documents, for an amount of time that
would have justified approval by the Owner if not for the need and right to
accelerate, the Contractor may initiate a Claim for acceleration costs pursuant to
Subparagraph 4.3(a). Any resulting Claim for acceleration costs properly initiated
by the Contractor under Subparagraph 4.3(a) above shall be limited to those
reasonable and documented direct costs of labor, materials, equipment, and
supervision solely and directly attributable to the actual acceleration activity
necessary to bring the Work back within the then existing approved construction
schedule. These direct costs include the premium portion of overtime pay,
additional crew, shift, or equipment costs if requested in advance by the Contractor
and approved in writing by the Owner. A percentage markup for the prorated cost
of premium on the existing performance and payment bonds and required
insurance, not to exceed 5%, will be allowed on the claimed acceleration costs. NO
OTHER MARKUP FOR PROFIT, OVERHEAD (INCLUDING BUT NOT
LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS WILL
BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be
liable for any costs related to an acceleration claim other than those described in
this Clause (i) (3).
(i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver
of claims by the Owner except those arising from:
(1) claims, security interests, purported liens, or other attempted encumbrances arising out
of the Contract and remaining unsettled;
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(2) defective or nonconforming Work appearing after Substantial Completion;
(3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion;
or
(4) the terms of general and special warranties required by the Contract Documents or
allowed or implied by law.
(k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY’S
FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS
OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION
PROCEEDING.
(l) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS
SHALL BE CONSTRUED TO WAIVE THE OWNER’S GOVERNMENTAL
IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO
THE EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE
LAW.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS OF SUBCONTRACTOR
(a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform
a portion of the Work at the Project site or to supply materials or equipment to the
Contractor by purchase or lease for use in performance of or incorporation into the Work.
The term “Subcontractor” is referred to throughout the Contract Documents as if singular
in number and means a Subcontractor or an authorized representative of the Subcontractor.
The term “Subcontractor” does not include a separate contractor or subcontractors of a
separate contractor.
(b) A Sub-subcontractor is a person or entity who has a direct or indirect contract with a
Subcontractor to perform a portion of the Work at the Project site or to supply materials or
equipment to the Subcontractor or another Sub-subcontractor by purchase or lease for use
in performance of or incorporation into the Work. The term “Sub-subcontractor” is referred
to throughout the Contract Documents as if singular in number and means a Sub-
subcontractor or an authorized representative of the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF
THE WORK
(a) Immediately after the award of the Contract by the Owner, and before the Building
Construction Services Agreement is signed by the Contractor and the Owner, the
Contractor shall furnish to the Architect/Engineer in writing, for acceptance by the Owner
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and the Architect/Engineer, a list of the names, addresses, telephone numbers, M/WBE
certification numbers (where applicable), and type of work of the Subcontractors
(including those who are to furnish materials or equipment fabricated to a special design),
proposed for the principal portions of the Work, including furnishings when made a part
of the Contract. The Contractor shall immediately notify the Owner in writing of any
changes in the list as they occur. The Architect/Engineer will promptly reply to the
Contractor in writing stating whether or not the Owner or the Architect/Engineer, after due
investigation, has reasonable objection to any such proposed person or entity. Failure of
the Owner or Architect/Engineer to reply promptly shall constitute notice of no reasonable
objection.
(b) The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable and timely objection.
(c) Architect/Engineer's and Owner's approval of or objection to any Subcontractor or of a
particular process or material will not relieve the Contractor of his responsibility for
performance of Work as called for under the Contract Documents, and shall not provide a
basis for any claim for additional time or money on the part of the Contractor. Approval
shall not be construed to create any contractual relationship between the Subcontractor and
either the Owner or Architect/Engineer. In no event shall the Contract Sum be increased as
a result of the rejection of any Subcontractor.
(d) The Contractor shall not change a Subcontractor previously selected if the Owner or
Architect/Engineer makes reasonable objection to such change.
5.3 SUBCONTRACTUAL RELATIONS
(a) By appropriate agreement, written where legally required for validity, the Contractor shall
require each Subcontractor, to the extent of the Work to be performed by the Subcontractor,
to be bound to the Contractor by the terms of the Contract Documents (including but not
limited to these General Conditions), and to assume toward the Contractor all the
obligations and responsibilities which the Contractor, by the Contract Documents, assumes
toward the Owner and the Architect/Engineer. Each subcontract agreement shall preserve
and protect the rights of the Owner and the Architect/Engineer under the Contract
Documents (including but not limited to these General Conditions) with respect to the
Work to be performed by the Subcontractor so that subcontracting will not prejudice the
rights of the Owner and the Architect/Engineer. Where appropriate, the Contractor shall
require each Subcontractor to enter into similar agreements with Sub-subcontractors. The
Contractor shall make available to each proposed Subcontractor, prior to the execution of
the subcontract agreement, copies of the Contract Documents to which the Subcontractor
is to be bound. Subcontractors shall similarly make copies of applicable portions of such
Documents available to their respective proposed Sub-subcontractors.
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(b) The Contractor is solely responsible for making payments properly to the Contractor’s
Subcontractors on the Project. During performance of the Work, the Contractor shall
comply with the following additional rules regarding Subcontractor payments:
(1) The Contractor shall submit, beginning with the Second Application and Certificate for
Payment, a Subcontractor Payment Report (the "Report") with each Application and
Certificate for Payment. The Report shall show all payments made to date by the
Contractor (plus existing retainage) to each Subcontractor involved in the Project. The
Report shall be made on a form approved and supplied by the Owner. As an alternative
to the Report, the Contractor may furnish Affidavits of Payment Received with the
Application and Certificate for Payment, which affidavits shall be executed by each
Subcontractor owed money and paid during the previous progress payment period for
work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE
REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A
CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION.
(2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a
dispute or other problem with performance, the Contractor shall note the amount
withheld and that payment is in dispute. The Owner may require the Contractor to
document and verify the dispute or other problem in question.
(3) The Owner reserves the right in its sole discretion, to withhold payment to the
Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear
from the Report, statements of payment received or other information furnished to the
Owner that:
(i) the Report has not been properly completed;
(ii) the Contractor has knowingly provided false information regarding payment of any
Subcontractor; or
(iii) the Contractor has otherwise failed to make payments properly to any
Subcontractor.
(4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR
ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT OF
THE OWNER'S OR ARCHITECT/ENGINEER'S ENFORCEMENT OF THIS
SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR ANY
OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE A
CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY
SUBCONTRACTOR AND EITHER THE OWNER OR THE
ARCHITECT/ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY
SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY
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BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE
CONTRACTOR.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall,
if requested in writing by the Owner, within fifteen (15) days after the date notice of termination
is sent, deliver and assign to Owner, or any person or entity acting on the Owner's behalf, any or
all subcontracts made by Contractor in the performance of the Work, and deliver to the Owner true
and correct originals and copies of the subcontract documents. In the event assignment is not
requested by the Owner, Contractor shall terminate all subcontracts to the extent that Owner has
not directed assignment of same and to the extent that they relate to the performance of Work
terminated by the notice of termination.
ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS
6.1 OWNER’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE
CONTRACTS
(a) The Owner reserves the right to perform construction or operations related to the Project
with the Owner’s own forces, and to award separate contracts in connection with other
portions of the Project or other construction or operations on the Project site under
Conditions of the Contract identical or substantially similar to these General Conditions,
including those portions related to insurance and waiver of subrogation. If the Contractor
claims that delay or additional cost is involved because of such action by the Owner, the
Contractor shall make a claim as provided elsewhere in and in accordance with the Contract
Documents.
(b) When separate contracts are awarded for different portions of the Project or other
construction or operations on the Project site, the term “Contractor” in the Contract
Documents in each case shall mean the Contractor who executes each separate Building
Construction Services Agreement with the Owner.
(c) The Owner shall provide for coordination of the activities of the Owner’s own forces and
of each separate contractor with the Work of the Contractor, who shall cooperate with
them. The Contractor shall participate with other separate contractors and the Owner in
reviewing their construction schedules when directed to do so. The Contractor shall, with
the approval of the Owner, make any revisions to the construction schedule deemed
necessary after a joint review and mutual agreement. The construction schedules shall then
constitute the schedules to be used by the Contractor, separate contractors, and the Owner
until subsequently revised by mutual agreement or by written Change Order. If the
Contractor believes it is entitled to an adjustment of the Contract Sum under the
circumstances, the Contractor shall submit a written proposal for a Change Order pursuant
to Article 7 of the General Conditions. In the event the Contractor’s Change Order proposal
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is denied by the Owner, the Contractor must submit any Claim pursuant to Paragraph 4.3
of the General Conditions.
(d) Unless otherwise provided in the Contract Documents, when the Owner performs
construction or operations related to the Project with the Owner’s own forces, the Owner
shall be deemed to be subject to the same obligations and to have the same rights which
apply to the Contractor under these General Conditions, including, without excluding
others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12.
6.2 MUTUAL RESPONSIBILITY
(a) The Contractor shall afford the Owner and separate contractors’ reasonable opportunity for
access to and storage of their materials and equipment and the performance of their
activities and shall coordinate the Contractor’s construction and operations with the
separate contractors as required by the Contract Documents.
(b) If part of the Contractor’s Work depends for proper execution or results upon construction
or operations by the Owner or a separate contractor, the Contractor shall, prior to
proceeding with that portion of the Work, promptly report to the Architect/Engineer
apparent discrepancies or defects in the other construction that would render it unsuitable
for proper execution and results. Failure of the Contractor to so report shall constitute an
acknowledgment that the Owner’s or separate contractors completed or partially completed
construction is fit and proper to receive the Contractor’s Work, except as to defects not
then reasonably discoverable.
(c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor due
to the fault or negligence of a separate contractor or through failure of a separate contractor
to carry out the directions of the Owner or the Architect/Engineer. Should any interference
occur between the Contractor and a separate contractor, the Architect/Engineer or the
Owner may furnish the Contractor with written instructions designating priority of effort
or change in methods, whereupon the Contractor shall immediately comply with such
direction. In such event, the Contractor shall be entitled to an extension of the Contract
Time only for unavoidable delays verified by the Architect/Engineer; no increase in the
Contract Sum, however, shall be due to the Contractor.
(d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to
completed or partially completed construction or to property of the Owner or separate
contractors as provided in Subparagraph 10.2(e).
(e) Should the Contractor cause damage to the work or property of any separate contractor on
the Project, the Contractor shall, upon due notice, settle with the separate contractor by
agreement, if the separate contractor will so settle. If the separate contractor sues the Owner
or submits a claim on account of any damage alleged to have been so sustained, the Owner
shall notify the Contractor who shall defend such proceedings, at the Contractor's expense,
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and if any judgment or award against the Owner arises from the separate contractor’s claim,
the Contractor shall pay or satisfy it and shall reimburse the Owner for all attorney's fees
and costs which the Owner has incurred.
(f) The Owner and each separate contractor shall have the same responsibilities for cutting
and patching as are described for the Contractor in Paragraph 3.14.
6.3 OWNER’S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the
responsibility under their respective contracts for maintaining the Project site and surrounding
area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may
clean up and allocate the cost among those responsible as the Architect/Engineer recommends
to be just.
ARTICLE 7 AMENDMENTS
7.1 CHANGE ORDERS
(a) A Change Order is a written order to the Contractor, signed by the Owner and the
Architect/Engineer, issued after execution of the Contract, authorizing a change in the
Work, an adjustment in the Contract Sum, or an adjustment to the Contract Time, consistent
with other applicable provisions of this Contract. The Owner, without invalidating the
Contract and without requiring notice of any kind to the sureties, may order changes to the
scope of Work under the Contract by additions, deletions, or other revisions, the Contract
Sum and Contract Time to be adjusted consistent with other applicable provisions of this
Contract. All Change Orders shall be executed on a Change Order form approved by the
Owner and the Owner’s City Attorney.
(b) In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change
Orders to verify and confirm the terms and conditions established by Change Order;
however, should the Contractor refuse to sign a Change Order, this shall not relieve him of
his obligation to perform the change directed by the Owner and the Architect/Engineer to
the best of his ability in accordance with the provisions of this Article 7. A Change Order
signed by the Contractor indicates his agreement with all of the changes approved,
including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE
ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF
TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR
FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR
CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER.
The execution of a Change Order by the Contractor shall constitute conclusive evidence of
the Contractor’s agreement to the ordered changes in the Work. The Contractor forever
releases any claim against the Owner for additional time or compensation for matters
relating to or arising out of or resulting from the Work included within or affected by the
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executed Change Order. This release applies to claims related to the cumulative impact of
all Change Orders and to any claim related to the effect of a change on other Work.
(c) No extra work (except under emergency conditions) or changes shall be made nor shall
any substitutions, changes or additions to or omissions or deviations from the requirements
of the Drawings and Specifications be made unless pursuant to a written Change Order
signed by the Owner and the Architect/Engineer, it being expressly understood that the
Owner shall not be liable for the cost of extra work or any substitution, change, addition,
omission or deviation from the requirements of the Drawings or Specifications unless the
same shall have been authorized in writing by the Owner and the Architect/Engineer in a
written change order or other Amendment. The provisions of this Paragraph 7.1 shall
control in the event of any inconsistency between such provisions and the other provisions
of this Article 7. See Subparagraph 10.3(a) of the General Conditions for Change Orders
under emergency conditions.
(d) The method of determining the cost or credit to the Owner for any change in the Work shall
be one of the following:
(1) mutual acceptance of a not-to-exceed lump sum amount properly itemized and
supported by sufficient substantiating data to permit evaluation;
(2) unit prices stated in the Contract Documents or subsequently agreed upon;
(3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable
fixed or percentage fee; or
(4) the force account method provided in Subparagraph 7.1(e)
(e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d)
(1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final dollar
figure, or if the Contractor for whatever reason refuses to sign the Change Order in
question, the Contractor, provided he receives a written order signed by the Owner, shall
promptly proceed with the Work involved. The cost of the Work involved shall then be
calculated on the basis of the reasonable jobsite expenditures and savings of those
performing the Work attributable to the changes, including a reasonable allowance for
overhead and profit, such allowance in any case never to exceed 15%. In such case, the
Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in
such form and with the appropriate supporting data as the Architect/Engineer and Owner
may prescribe. Sworn copies of the itemized accounting shall be delivered to the
Architect/Engineer each day during the performance of force account work, with copies to
the Owner.
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FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN-TO ITEMIZED
ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER
BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S
DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE
ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work
are limited to the following:
(1) costs of labor, including social security, old age and unemployment insurance, fringe
benefits required by agreement or custom, and workers compensation insurance;
(2) costs of materials, supplies and equipment (but not to include off-site storage unless
approved in writing by the Owner), whether incorporated or consumed;
(3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from
the Contractor or others;
(4) costs of premiums for all bonds and insurance related to the Work; and
(5) additional costs of supervision and field office personnel directly attributable to the
changed Work. Pending final determination of cost to the Owner, payment of
undisputed amounts on force account shall be included on the Architect/Engineer's
Certificate of Payment as work is completed.
(f) The amount of credit to be allowed to the Owner for any deletion of Work or any other
change which results in a net decrease of the Contract Sum shall be the amount of actual
net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and
profit. When both additions and deletions or credits covering related Work or substitutions
are involved in any one change, the allowance for overhead and profit shall be figured on
the basis of the net increase or decrease with respect to that change.
7.2 SUPPLEMENTAL AGREEMENTS
A written Supplemental Agreement can also be used to implement changes in the Work instead
of a Change Order form, including but not limited to situations involving partial occupancy of
the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without
an increase in the Contract Sum, or special circumstances where it is necessary or more
appropriate for the Owner to use a Supplemental Agreement. Written Supplemental
Agreements shall have a status equal to that of Change Orders for purposes of priority of
Contract Documents interpretation, except that to the extent of a conflict, later Supplemental
Agreements in time control over earlier Supplemental Agreements, and the latest Change
Order or Supplemental Agreement in time controls over earlier dated Change Orders and
Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to
the negotiation and execution of Supplemental Agreements.
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7.3 MINOR CHANGES IN THE WORK
The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes
in the Work not involving an adjustment in the Contract Sum or an extension of the Contract
Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be
effected by written order, and shall be binding on the Owner and the Contractor. The
Contractor shall carry out such written orders promptly. These written orders shall not be
deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no
Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor
submits its change proposal, prior to complying with the minor change ordered and in no event
later than ten (10) working days from the date the minor change was ordered, to the Owner for
approval.
7.4 TIME REQUIRED TO PROCESS AMENDMENTS
(a) All of the Contractor’s responses to proposal requests shall be accompanied by a complete,
itemized breakdown of costs. Responses to proposal requests shall be submi tted
sufficiently in advance of the required work to allow the Owner and the Architect/Engineer
a minimum of thirty (30) calendar days after receipt by the Architect/Engineer to review
the itemized breakdown and to prepare or distribute additional documents as may be
necessary. All of the Contractor's responses to proposal requests shall include a statement
that the cost described in the response represents the complete, total and final cost and
additional Contract Time associated with the extra work, change, addition to, omission,
deviation, substitution, or other grounds for seeking extra compensation under the Contract
Documents, without reservation or further recourse.
(b) All Amendments require approval by either the City Council or, where authorized by the
state law and City ordinance, by the City Manager pursuant to Administrative Action. The
approval process requires a minimum of forty-five (45) calendar days after submission to
the Owner in final form with all supporting data. Receipt of a submission by Owner does
not constitute acceptance or approval of a proposal, nor does it constitute a warranty that
the proposal will be authorized by City Council Resolution or Administrative Action. THE
TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE CONSIDERED
A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR INCREASE IN
THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS A RESULT OF
THIS PROCESS. Pending the approval described above, the Contractor will proceed with
the work under a pending Amendment only if directed in writing by the Owner.
ARTICLE 8 CONTRACT TIME
8.1 DEFINITIONS
(a) Unless otherwise provided, the Contract Time is the period of time, including authorized
adjustments, allotted in the Contract Documents for Substantial Completion of the Work.
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(b) The date of commencement of the Work is the date established in the notice to proceed
from the Owner. The date of commencement shall not be postponed by the failure of the
Contractor, or of persons or entities for whom the Contractor is responsible to act promptly
to commence the Work. If the Owner unreasonably delays the issuance of the notice to
proceed through no fault of the Contractor, the Contractor shall be entitled only to an
equitable extension of the Contract Time; the Contract Sum shall remain unchanged.
(c) The date of Substantial Completion is the date certified by the Architect/Engineer in
accordance with Paragraph 9.7.
(d) The term “day” as used in the Contract Documents shall mean a calendar day, beginning
and ending at 12:00 midnight, unless otherwise specifically defined by special provision.
8.2 PROGRESS AND COMPLETION
(a) Time limits stated in the Contract Documents are of the essence of the Contract. By
executing the Building Construction Services Agreement, the Contractor confirms that the
Contract Time is a reasonable period for performing the Work.
(b) The Contractor shall not knowingly, except by agreement with or instruction of the Owner
in writing, prematurely commence operations on the Project site or elsewhere prior to the
effective date of insurance to be furnished by the Contractor as required by Article 11. The
date of commencement of the Work shall not be changed by the effective date of insurance
required by Article 11.
(c) The Contractor shall proceed expeditiously with adequate forces, materials, and
equipment, and shall achieve Substantial Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
(a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of
the Owner or Architect/Engineer, or of an employee of either, or of a separate contractor
employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire,
unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor’s
control, or by delay authorized by the Owner pending a claim, or by other causes which
the Architect/Engineer determines may justify delay, then the Contract Time shall be
extended by Change Order for such reasonable time as the Architect/Engineer and Owner
may determine.
(b) Claims relating to Contract Time and time extensions shall be made in accordance with the
applicable provisions of Paragraph 4.3.
(c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE
CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO
ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE
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CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY
ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY
DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR
INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR
UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK,
INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN
PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR FAULT OF THE
OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S REPRESENTATIVE,
AN EXTENSION OF THE CONTRACT TIME UNDER SUBPARAGRAPH 8.3(a)
BEING THE CONTRACTOR’S SOLE REMEDY.
(d) The Owner shall have the right to occupy, without prejudice to the right of either party,
any completed or largely completed portions of the structure or Work, notwithstanding the
fact that the Contract Time for completing all or a portion of the Work may not have
expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken
or used.
(e) The Contractor shall promptly suspend the Work when either the Contractor or the Owner
is ordered to do so by a court order from a court having lawful jurisdiction, and the
Contractor will not be entitled to additional compensation by virtue of any delays resulting
from the court order. The Contractor will also not be liable to the Owner for a delay caused
in fact by the Work being suspended by a court order.
(f) The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend
the Work, in whole or in part, for such period or periods as the Architect/Engineer deems
necessary due to unusual or severe weather conditions as are considered unfavorable for
the suitable prosecution of the Work, or due to failure on the part of the Contractor to
correct conditions considered unsafe for workmen or the general public. If it should
become necessary to stop the Work for an indefinite period, the Contra ctor shall store all
materials in such a manner that they will not obstruct or impede the public unnecessarily
or become damaged in any way, and shall take every precaution to prevent damage or
deterioration of the Work performed. In cases of suspension of the Work under this
Subparagraph, the Contractor shall also provide suitable drainage about the Work and erect
temporary structures where necessary. The Contractor shall not suspend the Work in whole
or in part without written authority from the Architect/Engineer or the Owner, and shall
resume the Work promptly when notified by the Architect/Engineer or the Owner to
resume operations.
(g) In the event of a delay that is the responsibility of the Contractor or any of the
Subcontractors, for which the Contractor is not entitled to a time extension under the
provisions of this Contract, the Owner may direct that the Work be accelerated by means
of overtime, additional crews or additional shifts, or resequencing. This acceleration shall
be at no cost to the Owner and will continue until the Contract Time is restored. In the
event of a delay for which the Contractor is entitled to a time extension, as determined by
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the Architect/Engineer, Owner may similarly direct acceleration and the Contractor agrees
to perform same on the basis that the Contractor will be reimbursed only to the extent
described in Subparagraph 4.3(i). THE CONTRACTOR EXPRESSLY WAIVES ANY
OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS
OF LABOR PRODUCTIVITY OR EFFICIENCY.
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum is stated in the Building Construction Services Agreement and, including
authorized adjustments, is the total amount of compensation payable by the Owner to the
Contractor for the performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
Before the first Application for Payment, the Contractor shall submit to the Architect/Engineer
a schedule of values allocated to various portions of the Work, prepared in such form and
supported by such data to substantiate its accuracy as the Architect/Engineer may require. This
schedule, when approved by the Architect/Engineer and the Owner, shall be used as a basis for
the Contractor's Application for Payment. The schedule of values shall follow the trade
division of the Specifications. Contractor's Application for Payment shall be filed on the
current version of AIA Form G702 (Application and Certificate for Payment), as approved by
the Owner.
9.3 APPLICATIONS FOR PAYMENT
(a) At least ten (10) days before the date established for each progress payment, the Contractor
shall submit to the Architect/Engineer an itemized Application for Payment for Work
completed in accordance with the schedule of values. The Application shall be notarized,
if required, and supported by data substantiating the Contractor’s right to payment as the
Owner or Architect/Engineer may require, including but not limited to copies of
requisitions from Subcontractors and material suppliers, and reflecting the applicable
retainage as required in the Contract Documents. Contractor's Application for Payment
shall also provide other supporting documentation as the Owner or the other applicable
provisions of the Contract Documents may require.
(b) Applications for Payment may not include requests for payment of amounts the Contractor
does not intend to pay to a Subcontractor because of a good faith dispute, unless the
Contractor complies with Clause 5.3(b) (2) of these General Conditions and the
Contractor’s Payment Bond Surety consents in writing to payment to the Contractor of the
funds deemed to be in dispute.
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(c) Unless otherwise provided in the Contract Documents, progress payments shall include
payment for materials and equipment delivered and suitably stored at the Project site for
subsequent incorporation into the Work within thirty (30) days after delivery to the Project
site. If approved in advance by the Owner, payment may similarly be made for materials
and equipment suitably stored away from the Project site at a location agreed upon in
writing. Payment for costs incurred in storage of materials or equipment away from the
Project site will NOT be made by Owner unless:
(1) the Owner has given prior approval of such off-site storage in writing;
(2) the materials or equipment are stored in a bonded warehouse located in Denton County
and identified with the Project for which they are stored, as evidenced by warehouse
receipts and appropriate documents of title; and
(3) the materials or equipment stored off-site will be incorporated into the Work within
thirty (30) days after delivery. STORAGE IN FACILITIES OF THE
MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR
PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR
APPROVAL OF SUCH STORAGE IN WRITING.
(d) The Contractor warrants that title to all Work covered by an Application for Payment will
pass to the Owner no later than the time of payment. The Contractor further warrants that
upon submittal of an Application for Payment all Work for which Certificates for Payment
have been previously issued and payments received from the Owner shall be free and clear
of liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors, material suppliers, or other persons or entities making a claim by reason
of having provided labor, materials, and equipment relating to the Work.
(e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to
an approved schedule for delivery to the Project site shall be classified as an “early
delivery.” All early delivery materials or equipment must have the express written
permission of the Owner to be stored on the Project site. If any unauthorized early delivery
occurs, Contractor shall, at Contractor’s expense or at the expense of the responsible
Subcontractor or Supplier, cause such early delivery to be removed from the Project sit e
and stored off-site until required at the Project site. All costs of labor, transportation and
storage will be included as part of the expense. If the Contractor fails or refuses to remove
unauthorized early delivery materials, the Owner may cause such materials to be removed
at the Contractor's sole expense, and amounts may be withheld from the Contractor's
Application for Payment to reimburse the Owner for any costs incurred in removing
unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR
THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY
MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY
PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any
materials or equipment classified as early delivery will not be approved for p ayment as
stored materials prior to thirty (30) days before the incorporation of the materials or
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equipment into the Work, unless storage and payment at an earlier date is expressly
approved in writing by the Owner.
(f) If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds
are not furnished by the Contractor, no payment applied for will be payable under the
Contract until the Work has been Finally Completed and accepted.
9.4 CERTIFICATES FOR PAYMENT
(a) The Architect/Engineer will, within ten (10) days after receipt of the Contractor’s
Application for Payment, either issue to the Owner a Certificate for Payment, with a copy
to the Contractor, for such amount as the Architect/Engineer determines is properly due,
or notify the Contractor and Owner in writing of the Architect/Engineer’s reasons for
withholding certification in whole or in part as provided in
(a) City of Denton General Conditions for Building Construction.
(b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of
AIA Form G702 (Application and Certificate for Payment) as approved by the Owner.
(c) The issuance of a Certificate for Payment will constitute a representation by the
Architect/Engineer to the Owner, based on the Architect/Engineer’s observations at the site
and the data comprising the Application for Payment, that the Work has progressed to the
point indicated and that, to the best of the Architect/Engineer’s knowledge, information
and belief, quality of the Work is in accordance with the Contract Documents. The
foregoing representations are subject to an evaluation of the Work for conformance with
the Contract Documents upon Substantial and Final Completion, to results of subsequent
tests and inspections, to minor deviations from the Contract Documents correctable prior
to Final Completion and to specific qualifications expressed by the Architect/Engineer.
The issuance of a Certificate for Payment will further constitute a representation that the
Contractor is entitled to payment in the amount certified, subject to the Owner’s approval.
The issuance of a Certificate for Payment is not a representation that the Architect/Engineer
has:
(1) made exhaustive or continuous on-site inspections to check the quality or quantity of
the Work;
(2) reviewed construction means, methods, techniques, sequences or procedures;
(3) reviewed copies of requisitions received from Subcontractors and material suppliers
and other data requested by the Owner to substantiate the Contractor’s right to payment;
or
(4) made examination to ascertain how or for what purpose the Contractor has used money
previously paid on account of the Contract Sum.
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(d) Whenever the Application for Payment for Work done since the last previous Application
for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a
percentage of the Application, less applicable retainage, to the Contractor within thirty (30)
days following Owner’s receipt and approval of the Certificate for Payment certified by
the Architect/Engineer. The Application may include acceptable nonperishable materials
delivered to the Work or stored as provided for in Paragraph 9.3(c) and the payment will
be allowed on the net invoice value, less taxes and applicable retainage.
(e) The City is required to withhold retainage for public works contracts in which the total
contract price estimate at the time of execution is more than $400,000; however, this
requirement is applied by the City for all public works contracts in excess of $50,000. The
City may require varying percentage withholding amounts; however, the City requires five
percent. The retainage will be withheld by the Owner from each progress payment until
final completion of the Work by the Contractor, approval of final completion by the
Architect/Engineer, and final acceptance of the Work by the Owner. Unless otherwise
required by state law, the retainage percentage as specified above is based upon the original
Contract Sum, and will not be affected in the event the original Contract Sum is
subsequently increased or decreased by Change Order.
(f) No progress payments shall be made on contracts where performance and payment bonds
are not required or furnished. In such instances, payment for the Work performed will be
made upon final completion and acceptance by the Owner of all Work.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
(a) The Architect/Engineer or the Owner may decide not to certify payment and may withhold
a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect
the Owner’s interest, if in the Architect/Engineer’s or Owner’s opinion the representations
to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect/Engineer
or the Owner is unable to certify payment in the amount of the Application, the
Architect/Engineer or the Owner will notify the Contractor as provided in Subparagraph
9.4(a). If the Contractor and Architect/Engineer or the Owner cannot agree on a revised
amount, the Architect/Engineer will promptly issue a Certificate for Payment for the
amount for which the Architect/Engineer is able to make the required representations to
the Owner. The Architect/Engineer or the Owner may also decide not to certify payment
or, because of subsequently discovered evidence or subsequent observations, may nullify
the whole or a part of a Certificate for Payment previously issued to such extent as may be
necessary, in the Architect/Engineer’s or Owner’s opinion, to protect the Owner from loss
because of:
(1) defective or nonconforming Work not remedied;
(2) third party claims filed or reasonable evidence indicating probable filing of such
claims;
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(3) failure of the Contractor to make payments properly to Subcontractors or for labor,
materials, or equipment;
(4) reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
(5) damage to the Owner or another contractor;
(6) reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or damages for the
anticipated delay;
(7) persistent failure to carry out the Work in accordance with the Contract Documents; or
(8) mathematical or other errors that are discovered in the Application for Payment.
(b) When each of the above reasons that existed for withholding certification are removed or
remedied, certification will be made for amounts previously withheld.
(c) The Owner may, at its option, offset any progress payment or final payment under the
Contract Documents against any debt (including taxes) lawfully due to the Owner from the
Contractor, regardless of whether the amount due arises pursuant to the terms of the
Contract Documents or otherwise and regardless of whether or not the debt due to the
Owner has been reduced to judgment by a court.
9.6 PROGRESS PAYMENTS
(a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make
payment in the manner and within the time provided in the Contract Documents, and shall
so notify the Architect/Engineer. The Owner shall not be liable for interest on any late or
delayed progress payment or final payment caused by any claim or dispute, any
discrepancy in quantities, any failure to provide supporting documentation or other
information required with the Application for Payment or as a precondition to payment
under the Contract Documents, or due to any payment the Owner or the Architect/Engineer
has a right to withhold or not certify under the Contract Documents. Notwithstanding the
foregoing, the Owner may refuse to make payment on any Certificate for Payment
(including, without limitation, the final Certificate for Payment) for any default under the
Contract Documents, including but not limited to those defaults set forth in Subparagraph
9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of
withholding payment while any Contractor default remains uncured.
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(b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the
Owner, out of the amount paid to the Contractor on account of each Subcontractor’s portion
of the Work, the amount to which said Subcontractor is entitled, reflecting percentages
actually retained from payments to the Contractor on account of such Subcontractors
portion of the Work. The Contractor shall, by appropriate agreement with each
Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in
similar manner.
(c) The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable,
information regarding percentages of completion or amounts applied for by the Contractor
and action taken thereon by the Architect/Engineer and the Owner on account of portions
of the Work done by such Subcontractor.
(d) Neither the Owner nor the Architect/Engineer shall have an obligation to pay or to see to
the payment of money to a Subcontractor except as may otherwise be required by law. That
obligation belongs to the Contractor or, in the event of the Contractor’s failure to pay a
Subcontractor, to the Surety on the Payment Bond as required under Paragraph 11.3.
(e) Payment to material suppliers shall be treated in a manner similar to that provided in
Subparagraphs 9.6(b), (c), and (d).
(f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the
Project by the Owner shall not constitute acceptance of Work not performed in accordance
with the Contract Documents.
9.7 SUBSTANTIAL COMPLETION
(a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date
certified by the Architect/Engineer when construction is sufficiently completed in accordance with
the City Of Denton General Conditions For Building Construction.
(a) the Contract Documents such that the Owner may beneficially occupy and use the Work,
or designated portions of the Work, for the purposes for which it is intended and only trivial
and insignificant items remain which do not affect the Work as a whole.
(b) When the Contractor considers that the Work, or the portion of the Work which the Owner
agrees to accept separately, is Substantially Complete, the Contractor shall prepare and
submit to the Architect/Engineer a comprehensive list of remaining items to be completed
or corrected. The Contractor shall proceed promptly to complete and correct items on the
list (hereinafter called the “punch list”). Failure to include an item on the punch list does
not alter the responsibility of the Contractor to complete all Work in accordance with the
Contract Documents. Upon receipt of the punch list, the Architect/Engineer will make an
inspection to determine whether the Work, or designated portion of the Work, is
Substantially Complete. If the Architect/Engineer’s inspection discloses any item, whether
or not included on the punch list, which is not in accordance with the requirements of the
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Contract Documents and which renders the Work inspected not Substantially Complete the
Contractor shall, before issuance of the Certificate of Substantial Completion, complete or
correct the item upon notification by the Architect/Engineer. The Contractor shall then
submit a request for another inspection by the Architect/Engineer to determine Substantial
Completion. When the Work or designated portion of the Work is Substantially Complete,
the Architect/Engineer will prepare a Certificate of Substantial Completion which shall
establish the date of Substantial Completion, shall establish responsibilities of the Owner
and the Contractor for security, maintenance, heat, utilities, damage to the Work and
insurance, and shall fix the time within which the Contractor shall finish all items on the
punch list accompanying the Certificate.
(c) The Certificate of Substantial Completion shall be submitted to the Owner and the
Contractor for their written acceptance of responsibilities assigned to them in the
Certificate.
(d) Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Contractor and certification by the Architect/Engineer, the Owner shall
make payment, reflecting adjustment in retainage, if any, for the Work, or portion of the
Work, as provided in the Contract Documents.
9.8 PARTIAL OCCUPANCY OR USE
(a) The Owner may occupy or use any completed or partially completed portion of the Work
at any stage when such portion is designated by separate Supplemental Agreement with
the Contractor, provided such occupancy or use is consented to by the insurer as requi red
under Subparagraph 11.2(e) and authorized by public authorities having jurisdiction over
the Work. Such partial occupancy or use may commence whether or not the portion is
Substantially Complete, provided the Owner and Contractor have accepted in writi ng the
responsibilities assigned to each of them for payments, retainage if any, security,
maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing
concerning the period for correction of the Work and commencement of warranties
required by the Contract Documents. When the Contractor considers a portion
Substantially Complete, the Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to
partial occupancy or use shall not be unreasonably withheld. The stage of the
(a) progress of the Work shall be determined by written agreement between the Owner and
Contractor or, if no agreement is reached, by decision of the Architect/Engineer.
(b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and
Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to
be used in order to determine and record the condition of the Work.
(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 Owner’s representative, will promptly make final inspection and, when the
Architect/Engineer finds the Work acceptable under the Contract Documents and the
Contract Documents fully performed, the Architect/Engineer will promptly issue a final
Certificate for Payment stating that to the best of the Architect/Engineer’s knowledge,
information and belief, and on the basis of the Architect/Engineer’s observations and
inspections, the Work has been completed in accordance with terms and conditions of the
Contract Documents and that the entire balance found to be due the Contractor and noted
in said final Certificate is due and payable. The Architect/Engineer’s final Certificate for
Payment will constitute a further representation that conditions listed in Subparagraph
9.9(b) as a condition precedent to the Contractor’s being entitled to final payment have
been fulfilled. Owner will normally make final payment within thirty (30) days after
Owner's receipt and approval of the final Certificate for Payment. Warranties required by
the Contract Documents shall commence on the date of Substantial Completion of the
Work, unless otherwise provided by separate agreement between the Owner and the
Contractor.
(b) Neither final payment nor any remaining retained percentage shall become due until the
Contractor submits to the Architect/Engineer:
(1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness
connected with the Work for which the Owner or the Owner’s property might be
responsible or encumbered (less amounts withheld by Owner) have been paid or
otherwise satisfied;
(2) a certificate evidencing that insurance required by the Contract Documents to remain
in force after final payment is currently in effect and will not be cancelled or allowed
to expire until at least thirty (30) days prior written notice has been given to the Owner;
(3) a written statement that the Contractor knows of no substantial reason that the insurance
will not be renewable to cover the period required by the Contract Documents;
(4) a consent of surety to final payment; and
(5) if required by the Owner, other data establishing payment or satisfaction of obligations,
such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may be
designated by the Owner.
(c) As a precondition to final payment by the Owner under this Contract, the Contractor's
affidavit under Clause (b)(1) shall state that the Contractor has paid each of his
subcontractors, laborers or materialmen in full for all labor and materials provided to him
for the Work under this Contract. In the event the Contractor has not paid each of his
subcontractors, laborers or materialmen in full, the Contractor shall state in the affidavit
the amount owed and the name of each subcontractor, laborer or materialmen to whom
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such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE REQUIRED
TO EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF FINAL PAYMENT AND
RELEASE AS A PRECONDITION TO RECEIPT OF FINAL PAYMENT.
(d) If, after Substantial Completion of the Work, final completion of the Work is materially
delayed through no fault of the Contractor or by issuance of Change Orders affecting final
completion and the Architect/Engineer confirms the delay, the Owner shall, upon
application by the Contractor and certification by the Architect/Engineer, and without
terminating the Contract, make payment of the balance due for that portion of the Work
fully completed and accepted. If the remaining balance for Work not fully completed or
corrected is less than retainage stipulated in the Contract Documents, and if bonds have
been furnished, the written consent of surety to payment of the balance due for that portion
of the Work fully completed and accepted shall be submitted by the Contractor to the
Architect/Engineer prior to certification of payment. Payment shall be made under terms
and conditions governing final payment, except that it shall not constitute a waiver of
claims.
(e) The acceptance by the Contractor of the final payment shall operate as and shall be a
complete release of the Owner from all claims or liabilities under the Contract, for anything
done or furnished or relating to the Work or the Project, or for any act or neglect of the
Owner relating to or connected with the Work or the Project.
ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL
COMPLIANCE
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the performance of the Contract, and will
comply with all applicable City, County, State and Federal health and safety regulations.
10.2 SAFETY OF PERSONS AND PROPERTY
(a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to:
(1) employees on the Work and other persons who may be affected thereby;
(2) the Work and materials and equipment to be incorporated therein, whether in storage
on or off the site, under care, custody or control of the Contractor or the Contractor’s
Subcontractors or Sub-subcontractors; and
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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 Contractor shall give notices and comply with applicable laws, ordinances, rules,
regulations and lawful orders of public authorities bearing on safety of persons or property
or their protection from damage, injury or loss.
(c) The Contractor shall erect and maintain, as required by existing conditions and
performance of the Contract, reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety regulations
and notifying owners and users of adjacent sites and utilities.
(d) When use or storage of explosives or other hazardous materials or equipment or unusual
methods are necessary for execution of the Work, the Contractor shall exercise utmost care
and carry on such activities under supervision of properly qualified personnel.
(e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner
shall have the right to pre-approve the use of any explosives on the Project; the Contractor
shall not assume in its bid that permission to use explosives will be granted. The Owner
shall NOT be liable for any claim for additional time or compensation as a result of the
Owner's denial of permission to use explosives. Where use of explosives is permitted by
the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY RESPONSIBLE for
the determination as to whether explosives shall actually be used, and for any result from
the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD
COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the
Architect/Engineer against any and all claims, lawsuits, judgments, costs or expenses for
personal injury (including death), property damage or other harm for which recovery of
damages is sought, suffered by any person or persons, as the result of the use, handling or
storage of the explosives by the Contractor or any Subcontractor, REGARDLESS OF
WHETHER SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT,
AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS
CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE
OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR
THE ARCHITECT/ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR
REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this
Contract, this paragraph controls. This indemnity paragraph is intended solely for the
benefit of the parties to this Contract and is not intended to create or grant any rights,
contractual or otherwise, to or for any other person or entity. The Contractor shall furnish
the Owner and the Architect/Engineer with evidence of insurance sufficient to cover
possible damage or injury, which insurance shall either include the Owner and the
Architect/Engineer as additional insureds or be sufficiently broad in coverage as to fully
protect the Owner and the Architect/Engineer. All explosives shall be stored in a safe and
secure manner, under the care of a competent watchman at all times, and all storage places
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shall be marked clearly "DANGEROUS-EXPLOSIVES." The method of storing and
handling explosives and highly flammable materials shall conform to Federal and State
laws, City of Denton ordinances, and the City of Denton Fire Department regulations. The
Contractor shall notify any telecommunications and public utility company and any private
property owners having structures in the proximity of the Project Site of the Contractor’s
intention to use explosives, and such notice shall be given sufficiently in advance to enable
the telecommunications and public utility companies and private property owners to take
such steps as they ma y deem necessary to protect their property from injury. The notice
shall not relieve the Contractor of any responsibility for damage resulting from any blasting
operations.
(f) The Contractor shall promptly remedy damage and loss (other than damage or loss insured
under property insurance required by the Contract Documents) to property referred to in
Clauses 10.2(a)(2) and 10.2(a)(3) caused in whole or in part by the Contractor, a
Subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for
whose acts they may be liable and for which the Contractor is responsible under Clauses
10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to acts or omissions of the
Owner or Architect/Engineer or anyone directly or indirectly employed by either of them,
or by anyone for whose acts either of them may be liable, and not attributable to the fault
or negligence of the Contractor or any of its Subcontractors. The foregoing obligations of
the Contractor are in addition to the Contractor’s obligations under Paragraph 3.l9. To the
extent that any such damage or loss may be covered by property insurance or other
insurance required by the Contract Documents, the Owner and the Contractor shall exercise
their best efforts to make a claim and obtain recovery from the insurers to provide for the
cost, in whole or in part, of the repair work or to provide for reimbursement for such
damage or loss.
(g) The Contractor shall designate a responsible member of the Contractor’s organization at
the site whose duty shall be the prevention of accidents. This person shall be the
Contractor’s superintendent unless otherwise designated by the Contractor in writing to the
Owner and Architect/Engineer.
(h) The Contractor shall not load or permit any part of the Work or the Project site to be loaded
so as to endanger its safety.
10.3 EMERGENCIES
In an emergency affecting safety, health, or security of persons or property, the Contractor
shall act, at the Contractor’s discretion, to prevent threatened damage, injury, or loss.
Additional compensation or extension of time claimed by the Contractor on account of an
emergency shall be determined as provided in Paragraph 4.3 and Article 7.
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10.4 PUBLIC CONVENIENCE AND SAFETY
(a) The Contractor shall place materials stored about the Work and shall conduct the Work
at all times in a manner that causes no greater obstruction to the public than is considered
necessary by the Owner. Sidewalks or streets shall not be obstructed, except by special
permission of the Owner. The materials excavated and the construction materials or plant
used in the performance of the Work shall be placed in a manner that does not endanger
the Work or prevent free access to all fire hydrants, water mains and appurtenances, water
valves, gas valves, manholes for the telephone, telegraph signal or electric conduits,
wastewater mains and appurtenances, and fire alarm or police call boxes in the vicinity.
(b) The Owner reserves the right to remedy any neglect on the part of the Contractor in regard
to public convenience and safety which may come to the Owner's attention, after twenty-
four (24) hours’ notice in writing to the Contractor. In case of an emergency, the Owner
shall have the right to immediately remedy any neglect without notice. In either case, the
cost of any work done by the Owner to remedy the Contractor’s neglect shall be deducted
from the Contract Sum. The Contractor shall notify the City Traffic Control Department
when any street is to be closed or obstructed. The notice shall, in the case o f major
thoroughfares or street upon which transit lines operate, be forty-eight (48) hours in
advance. The Owner reserves the right to postpone or prohibit any closure or obstruction
of any streets or thoroughfares to the extent necessary for the safety and benefit of the
traveling public. The Contractor shall, when directed by the Architect/Engineer or the
Owner, keep any street or streets in condition for unobstructed use by City departments.
When the Contractor is required to construct temporary bridges or make other
arrangements for crossing over ditches or around structures, the Contractor’s
responsibility for accidents shall include the roadway approaches as well as the crossing
structures.
10.5 BARRICADES, LIGHTS AND WATCHMEN
If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall,
at the Contractor’s own cost and expense, furnish, erect and maintain sufficient barricades,
fences, lights and danger signals, shall provide sufficient watchmen, and shall take such other
precautionary measures as are necessary for the protection of persons or property and of the
Work. All barricades shall be painted in a color that will be visible at night, shall indicate in
bold letters thereon the Contractor's name and shall be illuminated by lights from sunset to
sunrise. The term “lights,” as used in this Paragraph, shall mean flares, flashers, or other
illuminated devices. A sufficient number of barricades with adequate markings and
directional devices shall also be erected to keep vehicles from being driven on or into any
Work under construction. The Contractor will be held responsible for all damage to the Work
due to failure of barricades, signs, lights and watchmen to protect the Work. Whenever
evidence is found of such damage, the Architect/Engineer may order the damaged portion
immediately removed and replaced by the Contractor at Contractor's cost and expense. The
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Contractor's responsibility for maintenance of barricades, signs, and lights, and for providing
watchmen, shall not cease until the Project has been finally accepted by the Owner.
10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED
In case it is necessary to change or move the property of the Owner or of any
telecommunications or public utility, such property shall not be removed or interfered with
until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any
public or private utilities to enter upon the Project site for the purpose of making such
changes or repairs of their property that may become necessary during the performance of
the Work. The Owner reserves the right of entry upon the Project site for any purpose,
including repairing or relaying sewer and water lines and appurtenances, repairing structures,
and for making other repairs, changes, or extensions to any of the Owner's property. The
Owner's actions shall conform to the Contractor's current and approved schedule for the
performance of the Work, provided that proper notification of schedule requirements has
been given to the Owner by the Contractor.
10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS
When existing storm sewers or drains have to be taken up or removed, the Contractor shall
at his own expense provide and maintain temporary outlets and connections for all public
and private storm sewers and drains. The Contractor shall also take care of all storm sewage
and drainage which will be received from these storm drains and sewers; for this purpose,
the Contractor shall provide and maintain, at the Contractor’s own expense, adequate
pumping facilities and temporary outlets or diversions. The Contractor shall, at the
Contractor’s own expense, construct such troughs, pipes, or other structures necessary and
shall be prepared at all times to dispose of storm drainage and sewage received from these
temporary connections until such time as the permanent connections are built and in service.
The existing storm sewers and connections shall be kept in service and maintained under the
Contract, except where specified or ordered to be abandoned by the Architect/Engineer. All
storm water and sewage shall be disposed of in a satisfactory manner so that no nuisance is
created and that the Work under construction will be adequately protected.
10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER;
ELECTRICITY FOR THE PROJECT
(a) When the Contractor desires to use the Owner's water in connection with the Work, the
Contractor shall make complete and satisfactory arrangements with the Denton Water
Utilities Department and shall be responsible for the cost of the water the Contractor uses.
Where meters are used, the charge will be at the regular established rate; where no meters
are used, the charge will be as prescribed by City ordinance, or where no ordinance applies,
payment shall be based on estimates made by the Denton Water Utilities Department.
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(b) The Contractor shall make complete and satisfactory arrangements for electricity and
metered electrical connections with the Owner or with Denton Municipal Electric in the
event that separately metered electrical connections are required for the Project. The
Contractor shall pay for all electricity used in the performance of the Work through separate
metered electrical connections obtained by the Contractor through the City of Denton.
10.9 USE OF FIRE HYDRANTS
The Contractor, Subcontractors, and any other person working on the Project shall not open,
turn off, interfere with, attach any pipe or hose to, or connect anything with any fire hydrant,
stop valve, or stop cock, or tap any water main belonging to the Owner, unless duly
authorized to do so by the Denton Water Utilities Department in accordance with the Denton
City Code.
10.10 ENVIRONMENTAL COMPLIANCE
(a) The Contractor and its Subcontractors are deemed to have made themselves familiar
with and at all times shall comply with all applicable federal, state or local laws, rules,
regulations, ordinances, and rules of common law now in effect (including any
amendments now in effect), relating to the environment, Hazardous Substances or
exposure to Hazardous Substances, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§
9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et
seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic
Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A.
§§ 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any
current judicial or administrative interpretation of these laws, rules, regulations,
ordinances, or rules of common law, including but not limited to any judicial or
administrative order, consent decree, or judgment affecting the Project.
(b) In the event the Contractor encounters on the site materials reasonably believed to be a
Hazardous Substance that have not been rendered harmless, and removal of such
materials is not a part of the scope of Work required under the Contract Documents,
the Contractor shall immediately stop Work in the affected area and report in writing
the facts of such encounter to the Architect/Engineer and the Owner. Work in the
affected area shall not thereafter be resumed except by written order of the Owner
unless and until the material is determined not to be a Hazardous Substance or the
Hazardous Substance is remediated. The Owner may choose to remediate the
Hazardous Substance with a separate contractor or through a Change Order with the
Contractor. If the Owner determines that the Hazardous Substance exists in the affected
area due to the fault or negligence of the Contractor or any of its Subcontractors, the
Contractor shall be responsible for remediating the condition at the sole expense of the
Contractor in accordance with the Contractor’s APPROVED Spill Remediation Plan.
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An extension of the Contract Time for any delay in the progress schedule caused as a
result of the discovery and remediation of a Hazardous Substance may be granted by
the Owner only if all remaining Work on the Project must be suspended and the delay
cannot be made up elsewhere in the progress schedule. Any request for an extension of
the Contract Time related to the discovery and remediation of a Hazardous Substance
is subject to the provisions of Paragraph 4.3 and Article 8.
(c) The Contractor shall be responsible for identification, abatement, cleanup, control,
removal, remediation, and disposal of any Hazardous Substance brought into or upon
the site by the Contractor or any Subcontractor or Supplier. The Contractor shall obtain
any and all permits necessary for the legal and proper handling, transportation, and
disposal of the Hazardous Substance and shall, prior to undertaking any abatement,
cleanup, control, removal, remediation, and disposal, notify the Owner and the
Architect/Engineer so that they may observe the activities; provided, however, that it
shall be the Contractor’s sole responsibility to comply with all applicable laws, rules,
regulations, or ordinances governing the activities.
(d) Spill Prevention Plan. At least seventy-two (72) hours prior to commencing
performance of any of the Work at the Project site, the Contractor shall submit to the
Owner for review and approval a Spill Prevention and Response Plan (SPRP) meeting
the requirements of federal and state law, rules, and regulations. The SPRP shall be
specially designed for the Contractor's planned work methods and procedures. The
SPRP shall be designed to complement all applicable safety standards, fire prevention
regulations, and pollution prevention policies and procedures. The SPRP shall include
estimates of the quantity and rate of flow should equipment fail, and detail containment
or diversionary structures to prevent spills from leaving the site or migrating into
adjacent properties or navigable waters. The SPRP shall include methods of recovery
of spilled materials and all applicable twenty-four (24) hour emergency phone
numbers, including without limitation that of the Owner’s Project Manager or other
designated representative. The Contractor shall not commence any field work prior to
approval of such plan by the Owner. The following additional rules shall apply with
respect to spills caused by the Contractor or a Subcontractor:
(1) The Contractor shall immediately report any spill or release at the Project site,
whether or not it is associated with this Contract, to the Owner’s Project Manager
or other designated representative. Thereafter, within two (2) working days after
the occurrence of such event, the Contractor shall submit a written report describing
such event in a degree of detail reasonably acceptable to the Owner.
(2) The Contractor shall immediately respond in accordance with the SPRP in the event
of a spill.
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(3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas
Commission on Environmental Quality (TCEQ) regulations and any other
applicable federal, state, or local laws, rules, or regulations. In connection with such
disposals, the Contractor shall use only those transporters and disposal facilities
that are approved in advance in writing by the Owner. A copy of all transport
manifests for the spilled materials shall be obtained and retained in the Contractor’s
records for reference purposes, to be provided upon request of the
Architect/Engineer, the Owner, or any governmental regulatory agency with
jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT,
AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE
RESPONSIBILITY OF THE CONTRACTOR.
(4) For purposes of this Subparagraph (e), the term “spill” includes any kind of
environmental discharge or release.
(e) Clean Air Management Plan. The Contractor shall comply with the Clean Air
Management Plan submitted to and approved by the Owner during the contractor
selection process. The Owner reserves the right, at the Contractor’s sole expense, to
require the removal or retrofitting of any equipment used in the course of construction
that does not comply with the Plan submitted to and approved by the Owner.
(f) The Contractor shall deposit surplus or waste excavation or other materials removed as
part of the Work at a legal disposal site in accordance with all applicable state, federal,
and local laws, rules, regulations, and ordinances. The Contractor shall submit to the
Owner for review and approval all planned disposal sites or proposed uses for the
surplus or waste excavation or other materials prior to removal of any excavation or
other material from the Project site. A copy of all transport manifests for surplus or
waste excavation or other materials shall be obtained and retained in the Contractor’s
records for reference purposes, to be provided upon request to the Architect/Engineer,
the Owner, or any governmental regulatory agency with jurisdiction over the matter.
(g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from
TCEQ for construction of the Project under regulations contained in 40 CFR Part 122,
as amended, pursuant to the Clean Water Act, 33 U.S.C.A. §§1251 et seq. These
regulations require the filing of a notice of intent to obtain and abide by the general
storm water permit for construction activities promulgated by EPA, including but not
limited to cleaning, grading, and excavation that disturb the applicable amount of total
land area. In addition, the Contractor shall comply with all regulations of the Owner
relating to storm water and storm water runoff management at the Project site pursuant
to Chapter 19, Article IX, Denton City Code, as amended.
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(h) The Contractor shall not install any materials in the performance of the Work that
contain asbestos or asbestos-related material such as hydrated mineral silicate,
including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether
friable or non-friable.
(i) The Owner reserves the right in its sole option to exercise the following remedies
(without waiving the right to pursue the imposition of any civil or criminal fines or
penalties that may be imposed under state, federal, or local laws or ordinances), at no
additional cost to the Owner and without an extension of the Contract Time, in the
event the Contractor fails or refuses after seven (7) days advance written notice from
the Owner to comply with the provisions of this Paragraph 10.10, the terms of the
SPRP, the terms of the Clean Air Management Plan, any storm water permit or other
environmental permit issued in connection with the Work, or any applicable
environmental law, rule, regulation, or ordinance:
(1) suspend all or any portion of the Work until the noncompliance is corrected, or until
a detailed plan to achieve compliance within a reasonably prompt period of time is
prepared by the Contractor and approved by the Owner;
(2) if the Contractor fails to properly address the noncompliance within the time
stipulated by the Owner, perform the necessary remediation or correction work and
back charge the Contractor for the cost of the remediation or correction; or
(3) terminate the Contract for cause as provided in Article 13.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR’S INSURANCE
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.2 PROPERTY INSURANCE
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
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11.3 ‘UMBRELLA’ LIABILITY INSURANCE
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS
Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.6 PERFORMANCE AND PAYMENT BONDS
(a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution
and delivery of the Construction Services Agreement, furnish and file with the Owner in
the amounts required in this Paragraph, the surety bonds described in Clauses (a)(1) and
(a)(2) below, which surety bonds shall be in accordance with the Charter of the City of
Denton and the provisions of Chapter 2253, Texas Government Code, as amended; each
bond shall be signed by the Contractor, as Principal, and by an established bonding
company, as surety, meeting the requirements of Subparagraph 11.3(c) and approved by
the Owner. The surety bonds shall be accompanied by an appropriate Power-of-Attorney
clearly establishing the extent and limitations of the authority of each signer to so sign:
(1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the
total Contract Sum, guaranteeing the full and faithful execution of the Work and
performance of the Contract in accordance with Plans, Specifications and all other
Contract Documents, including any Amendments thereof, for the protection of the
Owner. This bond shall also provide for the repair and maintenance of all defects due
to faulty materials and workmanship that appear within a period of two (2) year from
the date of final completion and acceptance of the improvements by the Owner or lesser
or longer periods as may be otherwise designated in the Contract Documents.
(2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total
Contract Sum, guaranteeing the full and prompt payment of all claimants supplying
labor or materials in the prosecution of the Work provided for in the Contract
Documents and any Amendments thereto, and for the use and protection of each
claimant.
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(b) If the Contract Sum, including Owner-accepted alternates and allowances, if any, is greater
than $100,000, Performance in 100% of the Contract Sum are mandatory and shall be
provided by the Contractor. If the Contract Sum is greater than $50,000 but less than or
equal to $100,000, only a Payment Bond in 100% of the Contract amount is mandatory;
provided, however, that the Contractor may elect to furnish a Performance Bond in the
same amount if the Contractor so chooses. If the Contract Sum is less than or equal to
$25,000, the Contractor may elect not to provide Performance and Payment Bonds;
provided that in such event, no money will be paid to the Contractor until final completion
and acceptance of all work by Owner. If the Contractor elects to provide Performance and
Payment Bonds 100% of the total Contract Sum, progress payments in accordance with
these General Conditions shall be disbursed.
(c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds
or who is a party to any litigation against the Owner. All bonds shall be made and executed
on the Owner's standard forms, shall be approved by the Owner, and shall be executed by
not less than one corporate surety that is authorized and admitted to do business in the State
of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current
United States Department of the Treasury List of Acceptable Sureties, and is otherwise
acceptable to the Owner. Each bond shall be executed by the Contractor and the surety,
and shall specify that legal venue for enforcement of each bond shall lie exclusively in
Denton County, Texas. Each surety shall designate an agent resident in Denton County,
Texas to whom any requisite statutory notices may be delivered and on wh om service of
process may be had in matters arising out of the suretyship.
(d) The person or persons, partnership, company, firm, Limited Liability Company,
association, corporation, or other business entity to whom the Contract is awarded shall,
within ten (10) days after such award, sign the required Contract with the Owner and
provide the necessary surety bonds and evidence of insurance as required under the
Contract Documents. No Contract shall be binding on the Owner until it has been approved
as to form by the City Attorney, executed for the Owner by the City Manager, the
performance and payment bonds and evidence of insurance have been furnished as required
by the Contract Documents, and the fully executed contract has been delivered to the
Contractor.
(e) The failure of the Contractor to execute the Contract or deliver the required statutory bonds
and evidence of insurance within ten (10) days after the Contract is awarded or as soon
thereafter as the Owner can assemble and deliver the Contract shall constitute a material
breach of the Contractor’s bid proposal and the Owner may rescind the Contract award and
collect or retain the proceeds of the bid security. By reason of the uncertainty of the market
prices or materials and labor, and it being impracticable and difficult to determine
accurately the amount of damages occurring to the Owner by reason of the Contractor's
failure to execute and furnish the statutory bonds and to sign the Contract within ten (10)
days, the filing of a bid proposal with the accompanying bid security will be considered as
an acceptance of this Subparagraph 11.3(e). In the event the Owner should re-advertise for
bids, the defaulting Contractor shall not be eligible to bid, and the lowest responsible bid
obtained in the re-advertisement shall be the bid referred to in this Paragraph.
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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 Contractor’s expense without change in the Contract
Time.
(b) If a portion of the Work has been covered which the Architect/Engineer has not
specifically requested to observe prior to it being covered, the Architect/Engineer may
request to see such Work and it shall be uncovered by the Contractor. If such Work is in
accordance with the Contract Documents, costs of uncovering and replacement shall, by
appropriate Change Order, be charged to the Owner. If any Work is not in accordance
with the Contract Documents, the Contractor shall pay the costs of uncovering, repair,
replacement unless the condition was caused by the Owner or a separate contractor in
which event the Owner shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
(a) The Contractor shall promptly correct Work rejected by the Architect/Engineer as failing
to conform to the requirements of the Contract Documents, whether observed before or
after Substantial Completion and whether or not fabricated, installed or completed. The
Contractor shall bear costs of correcting such rejected Work, including additional testing
and inspections and compensation for the Architect/Engineer’s services and expenses
made necessary thereby.
(b) If any of the Work is found to be defective or nonconforming with the requirements of
the Contract Documents, the Contractor shall correct it promptly after receipt of written
notice from the Architect/Engineer or the Owner to do so unless the Owner has
previously given the Contractor a written acceptance or waiver of the defect or
nonconformity. The Contractor’s obligation to correct defective or nonconforming Work
remains in effect for:
(1) 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.
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(c) The one-year period described in Clauses (b)(1) and (b)(2) shall be extended with respect
to portions of the Work performed, repaired, or corrected after Substantial Completion
by the period of time between Substantial Completion and the actual completion of the
Work.
(d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance
of the Work and termination of this Contract. The Owner shall give notice to the
Contractor promptly after discovery of a defective or nonconforming condition in the
Work. The one-year period stated in Clauses (b) (1) and (b) (2) does not limit the ability
of the Owner to require the Contractor to correct latent defects or nonconformities in the
Work, which defects or nonconformities could not have been discovered through
reasonable diligence by the Owner or the Architect/Engineer at the time the Work was
performed or at the time of inspection for certification of Substantial Completion or Final
Completion. The one year period also does not relieve the Contractor from liability for
any defects or deficiencies in the Work that may be discovered after the expiration of the
one year correction period.
(e) The Contractor shall remove from the Project site portions of the Work which are not in
accordance with the requirements of the Contract Documents and are neither corrected
by the Contractor nor accepted by the Owner.
(f) If the Contractor fails to correct defective or nonconforming Work within a reasonable
time after notice from the Owner or the Architect/Engineer, the Owner may correct it in
accordance with Paragraph 2.4. If the Contractor does not proceed with correction of
defective or nonconforming Work within a reasonable time fixed by written notice from
the Architect/Engineer, the Owner may remove or replace the defective or
nonconforming Work and store the salvageable materials or equipment at the
Contractor’s expense. If the Contractor does not pay costs of removal and storage within
ten days after written notice, the Owner may, upon ten (10) additional days written notice,
sell the materials and equipment at auction or at private sale and shall account for the
proceeds after deducting costs and damages that should have been borne by the
Contractor, including compensation for the Architect/Engineer’s services and expenses
made necessary as a result of the sale. If the proceeds of sale do not cover costs which
the Contractor should have borne, the Contract Sum shall be reduced by the deficiency.
If payments due to the Contractor then or thereafter are not sufficient to cover the
deficiency, the Contractor shall pay the difference to the Owner.
(g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the
Owner or separate contractors, whether the construction is completed or partially
completed, that is caused by the Contractor’s correction or removal of Work which is not
in accordance with the requirements of the Contract Documents.
(h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of
limitation with respect to other obligations which the Contractor might have under the
Contract Documents. Establishment of the one-year time period as described in
Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct
the Work, and has no relationship to the time within which the obligation to comply with
the Contract Documents may be sought to be enforced, nor to the time within which
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proceedings may be commenced to establish the Contractor’s liability with respect to the
Contractor’s obligations other than specifically to correct the Work.
(i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the
provisions of Article 12 to the same extent as Work originally performed or installed.
12.3 ACCEPTANCE OF NONCONFORMING WORK
The Owner may, in the Owner’s sole discretion, accept Work which is not in accordance with
the requirements of the Contract Documents instead of requiring its removal and correction,
in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment
will be accomplished whether or not final payment has been made.
ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY
SUSPENSION
13.1 FINAL COMPLETION OF CONTRACT
The Contract will be considered completed, except as provided in any warranty or
maintenance stipulations, bond, or by law, when all the Work has been finally completed, the
final inspection is made by the Architect/Engineer, and final acceptance and final payment is
made by the Owner.
13.2 WARRANTY FULFILLMENT
Prior to the expiration of the specified warranty period provided for in the Contract
Documents, the Architect/Engineer will make a detailed inspection of the Work and will
advise the Contractor and the Contractor’s Surety of the items that require correction. The
Architect/Engineer will make a subsequent inspection and if the corrections have been
properly performed, the Architect/Engineer will issue a letter of release on the maintenance
stipulations to the Contractor and the Surety. If for any reason the Contractor has not made
the required corrections before the expiration of the warranty period, the warranty provisions
as provided for in the Contract Documents shall remain in effect until the corrections have
been properly performed and a letter of release issued.
13.3 TERMINATION BY THE OWNER FOR CAUSE
(a) Notwithstanding any other provision of these General Conditions, the Work or any
portion of the Work may be terminated immediately by the Owner for any good cause
after giving seven (7) days advance written notice and opportunity to cure to the
Contractor, including but not limited to the following causes:
(1) Failure or refusal of the Contractor to start the Work within ten (10) days after the
date of written notice by the Owner to commence the Work.
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(2) A reasonable belief that the progress of the Work being made by the Contractor is
insufficient to complete the Work within the specified time.
(3) Failure or refusal of the Contractor to provide sufficient and proper equipment or
construction forces to properly execute the Work in a timely manner.
(4) A reasonable belief that the Contractor has abandoned the Work.
(5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise
financially unable to carry on the Work.
(6) Failure or refusal on the part of the Contractor to observe any requirements of the
Contract Documents or to comply with any written orders given by the
Architect/Engineer or the Owner as provided for in the Contract Documents.
(7) Failure or refusal of the Contractor to promptly make good any defects in materials
or workmanship, or any defects of any nature, the correction of which has been
directed in writing by the Architect/Engineer.
(8) A reasonable belief by the Owner that collusion exists or has occurred for the
purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is being
perpetrated on the Owner in connection with the construction of Work under the
Contract.
(9) Repeated and flagrant violation of safe working procedures.
(10) The filing by the Contractor of litigation against the Owner prior to completion of
the Work.
(b) When the Work or any portion of the Work is terminated for any of the causes itemized
above or for any other cause except termination for convenience pursuant to
Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner,
discontinue the Work or portion of the Work as the Owner shall designate, whereupon
the surety shall, within fifteen (15) days after the written notice of termination for cause
has been served upon the Contractor and the surety or its authorized agents, assume the
obligations of the Contractor for the Work or that portion of the Work which the Owner
has ordered the Contractor to discontinue and may:
(1) perform the Work with forces employed by the surety;
(2) with the written consent of the Owner, tender a replacement contractor to take over
and perform the Work, in which event the surety shall be responsible for and pay the
amount of any costs required to be incurred for the completion of the Work that are
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in excess of the amount of funds remaining under the Contract as of the time of the
termination; or
(3) with the written consent of the Owner, tender and pay to the Owner in settlement the
amount of money necessary to finish the balance of uncompleted Work under the
Contract, correct existing defective or nonconforming Work, and compensate the
Owner for any other loss sustained as a result of Contractor's default.
In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety
shall assume the Contractor's place in all respects, and the amount of funds
remaining unpaid under the Contract shall be paid by the Owner for all Work
performed by the surety or the replacement contractor in accordance with the terms
of the Contract Documents, subject to any rights of the Owner to deduct any costs,
damages, or actual damages that the Owner 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 Contractor’s default and
of the termination shall become due and payable to the surety as the Work progresses,
subject to all of the terms, covenants, and conditions of the Contract Documents. If the
surety does not, within the time specified in Subparagraph 13.3(b), exercise its
obligation to assume the obligations of the Contract, or that portion of the Contract
which the Owner has ordered the Contractor to discontinue, then the Owner shall have
the power to complete the Work by contract or otherwise, as it may deem necessary.
The Contractor agrees that the Owner shall have the right to take possession of or use
any or all of the materials, plant, tools, equipment, supplies, and property of every kind
provided by the Contractor for the purpose of the Work, and to procure other tools,
equipment, labor, and materials for the completion of the Work, and to charge to the
account of the Contractor the expenses of completion and labor, materials, tools,
equipment, and incidental expenses. The expenses incurred by the Owner to complete
the Work shall be deducted by the Owner out of the balance of the Contract Sum
remaining unpaid to or unearned by the Contractor. The Contractor and the surety shall
be liable to the Owner for any costs incurred in excess of the balance of the Contract
Sum for the completion and correction of the Work, and for any other costs, damages,
expenses (including but not limited to additional fees of the Architect/Engineer and
attorney’s fees), and actual damages incurred as a result of the termination.
(d) The Owner shall not be required to obtain the lowest bid for the Work of completing the
Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from
the Contract Sum shall be the actual cost of such Work. In case the Owner’s expense is
less than the sum which would have been payable under the Contract, if the same had
been completed by the Contractor, then the Owner may pay to the Contractor (or the
Surety, in the event of a complete termination for cause) the difference in the cost,
provided that the Contractor (or the Surety) shall not be entitled to any claim for
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damages or for loss of anticipated profits. In case such expenses for completion shall
exceed the amount which would have been payable under the Contract if the same had
been completed by the Contractor, then the Contractor and his Sureties shall pay the
amount of the excess to the Owner on notice from the Owner for excess due. When only
a particular part of the Work is being carried on by the Owner by contract or otherwise
under the provisions of this Subparagraph, the Contractor shall continue the remainder
of the Work in conformity with the terms of the Contract, and in such manner as not to
hinder or interfere with the performance of workmen employed and provided by the
Owner.
(e) The right to terminate this Contract for the convenience of the Owner (including but not
limited to no appropriation of funding) is expressly retained by the Owner. In the event
of termination for convenience, the Owner shall deliver at least ten (10) days advance
written notice of termination for convenience to the Contractor. Upon the Contractor’s
receipt of such written notice, the Contractor shall cease the performance of the Work
and shall take reasonable and appropriate action to secure and protect the Work in place.
The Contractor shall then be reimbursed by the Owner in accordance with the terms and
provisions of the Contract Documents, not to exceed actual labor costs incurred,
materials stored at the Project site or away from the Project site as approved by the
Owner but not yet paid for, plus actual, reasonable, and documented termination
charges, if any, paid by the Contractor in connection with the Work in place which is
completed and in conformance with the Contract Documents to the date of termination
for convenience. No amount shall ever be due to the Contractor for lost or anticipated
profits.
13.4 TEMPORARY SUSPENSION OF THE WORK
(a) The Work or any portion of the Work may be temporarily suspended by the Owner
immediately upon written notice to the Contractor for any reason, including but not
limited to:
(1) the causes described in Clauses 13.1(a)(1) through (a)(10) above;
(2) where other provisions in the Contract Documents require or permit temporary
suspension of the Work;
(3) situations where the Work is threatened by, contributes to, or causes an immediate
threat to public health, safety, or security; or
(4) other unforeseen conditions or circumstances.
(b) The Contractor shall immediately resume the temporarily suspended Work when
ordered in writing by the Owner to do so. The Owner shall not under any circumstances
be liable for any claim of the Contractor arising from a temporary suspension due to a
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cause described in Clause (a)(1) above; provided, however, that in the case of a
temporary suspension for any of the reasons described under Clauses (a)(2) through
(a)(4), where the Contractor is not a contributing cause of the suspension under one of
those Clauses or where the provision of the Contract Documents in question specifically
provides that the suspension is at no cost to the Owner, the Owner will make an equitable
adjustment for the following items, provided that a claim is properly made by the
Contractor under Subparagraph 4.3 of these General Conditions:
(1) an equitable extension of the Contract Time, not to exceed the actual delay caused
by the temporary suspension as determined by the Architect/Engineer and the
Owner;
(2) an equitable adjustment to the Contract Sum for the actual, necessary, and
reasonable costs of properly protecting any Work that is finished or partially
finished during the period of the temporary suspension (no profit and overhead shall
be allowed on top of these costs); and
(3) if it becomes necessary to move equipment from the Project site and then return it
to the Project site when the Work is ordered to be resumed, an equitable adjustment
to the Contract Sum for the actual, necessary, and reasonable cost of these moves;
provided, however, that no adjustment shall be due if the equipment is moved to
another Project site of the Owner.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS
(a) This Contract shall be governed by the laws and case decisions of the State of Texas,
without regard to conflict of law or choice of law principles of Texas or of any other
state.
(b) This Contract is entered into subject to and controlled by the Charter and ordinances of
the City of Denton and all applicable laws, rules, and regulations of the State of Texas
and the Government of the United States of America. The Contractor shall, during the
performance of the Work, comply with all applicable City codes and ordinances, as
amended, and all applicable State and Federal laws, rules and regulations, as amended.
14.2 SUCCESSORS AND ASSIGNS
The Owner and the Contractor respectively bind themselves, their partners, successors,
assigns, and legal representatives to the promises, covenants, terms, conditions, and
obligations contained in the Contract Documents. The Contractor shall not assign, transfer, or
convey its interest or rights in the Contract, in part or as a whole, without written consent of
the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without
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the Owner’s written consent, the Contractor shall nevertheless remain legally responsible for
all obligations under the Contract Documents. The Owner shall not assign any portion of the
Contract Sum due or to become due under this Contract without the written consent of the
Contractor, except where assignment is compelled or allowed by court order, the terms of the
Contract Documents, or other operation of law.
14.3 WRITTEN NOTICE
Except as otherwise provided in Article 16, any notice, payment, statement, or demand
required or permitted to be given under this Contract by either party to the other may be
effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or
Superintendent of either party, or to an officer, partner, or other designated representative of
either party. Mailed notices shall be addressed to the parties at an address designated by each
party, but each party may change its address by written notice in accordance with this section.
Mailed notices shall be deemed communicated as of three (3) days after mailing.
14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER
(a) The duties and obligations imposed on the Contractor by the Contract Documents and the
rights and remedies available to the Owner under the Contract Documents shall be in addition
to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or
made available by law.
(b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the
Owner under the Contract Documents, nor shall any action or failure to act by the Owner
constitute approval of or acquiescence in a breach of the Contract by Contractor, except as
may be specifically agreed in writing by Change Order or Supplemental Agreement.
14.5 INTEREST
The Owner shall not be liable for interest on any progress or final payment to be made under
the Contract Documents, except as may be provided by the applicable provisions of the
Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to
Paragraph 9.6(a) of these General Conditions.
14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL
INTEREST IN ANY CONTRACT OF THE OWNER
No officer or employee of the Owner shall have a financial interest, direct or indirect, in any
Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the
Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer
or employee. Any violation of this article shall constitute malfeasance in office, and any
officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any
violation of this section, with the knowledge, express or implied, of the person, persons,
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partnership, company, firm, association or corporation contracting with the Owner shall
render the Contract involved voidable by the Owner's City Manager or City Council.
14.7 VENUE
This Contract is deemed to be performed in Denton County, Texas, and if legal action is
necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas.
14.8 INDEPENDENT CONTRACTOR
In performing the Work under this Contract, the relationship between the Owner and the
Contractor is that of an independent contractor. The Contractor shall exercise independent
judgment in performing the Work and is solely responsible for setting working hours,
scheduling or prioritizing the Work flow and determining the means and methods of
performing the Work, subject only to the requirements of the Contract Documents. No term
or provision of this Contract shall be construed as making the Contractor an agent, servant, or
employee of the Owner, or making the Contractor or any of the Contractor’s employees,
agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's
compensation, which the Owner provides to its employees.
14.9 NONDISCRIMINATION
As a condition of this Contract, the Contractor covenants that he will take all necessary actions
to insure that, in connection with any work under this Contract, the Contractor and its
Subcontractors will not discriminate in the treatment or employment of any individual or
groups of individuals on the grounds of race, color, religion, national origin, age, sex, sexual
orientation, or handicap unrelated to job performance, either directly, indirectly or through
contractual or other arrangements. The Contractor shall also comply with all applicable
requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213, as
amended. In this regard, the Contractor shall keep, retain and safeguard all records relating to
his Contract or Work performed thereunder for a minimum period of three (3) years from final
Contract completion, with full access allowed to authorized representatives of the Owner,
upon request, for purposes of evaluating compliance with this and other provisions of the
Contract.
14.10 GIFTS TO PUBLIC SERVANTS
(a) The Owner may terminate this Contract immediately if the Contractor has offered,
conferred, or agreed to confer any benefit on a City of Denton employee or official that
the City of Denton employee or official is prohibited by law from accepting.
(b) For purposes of this Article, "benefit" means anything reasonably regarded as
pecuniary gain or pecuniary advantage, including benefit to any other person in whose
welfare the beneficiary has a direct or substantial interest, but does not include a
contribution or expenditure made and reported in accordance with law.
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(c) Notwithstanding any other legal remedies, the Owner may require the Contractor to
remove any employee of the Contractor from the Project who has violated the
restrictions of this Article or any similar State or Federal law, and obtain reimbursement
for any expenditures made to the Contractor as a result of the improper offer, agreement
to confer, or conferring of a benefit to a City of Denton employee or official.
ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS
By execution of the Building Construction Services Agreement, the Contractor grants the Owner
the right to audit, at the Owner's election, all of the Contractor's records and billings relating to the
performance of the Work under the Contract Documents. The Contractor agrees to retain its Project
records for a minimum of five (5) years following completion of the Work. The Owner agrees that
it will exercise the right to audit only at reasonable hours. City may review any and all of the
services performed by Contractor under this Contract. Any payment, settlement, satisfaction, or
release made or provided during the course of performance of this Contract shall be subject to
City’s rights as may be disclosed by an audit under this section.
ARTICLE 16 NOTICE OF CONTRACT CLAIM
This Contract is subject to the provisions of the Denton City Code, as amended, relating to
requirements for filing a notice of a breach of contract claim against City. Contractor shall comply
with the requirements of this ordinance as a precondition of any litigation relating to this Contract,
in addition to all other requirements in this Contract related to claims and notice of claims.
Should a conflict arise between any of the contract documents, it shall be resolved wit h 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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APPENDIX A- INSURANCE REQUIREMENTS AND
WORKERS’ COMPENSATION REQUIREMENTS
Respondent’s attention is directed to the insurance requirements below. It is highly recommended that
respondents confer with their respective insurance carriers or brokers to determine in advance of
submission the availability of insurance certificates and endorsements as prescribed and provided
herein. If an apparent best value respondent fails to comply strictly with the insurance requirements,
that respondent may be disqualified from award of the contract. Upon contract award, all insurance
requirements shall become contractual obligations, which the successful contractor shall have a duty to
maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide
and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the
minimum insurance coverage as indicated hereinafter.
As soon as practicable after notification of contract award, 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,
Contractors are strongly advised to make such requests prior to proposal/bid opening, since the insurance
requirements may not be modified or waived after proposal/bid opening unless a written exception has been
submitted with the proposal/bid. 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 c omply 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.
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Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents,
employees, and volunteers.
Cancellation: City requires 30 day written notice should any of the policies described on the
certificate be cancelled or materially changed before the expiration date.
Should any of the required insurance be provided under a claims made form, Contractor shall
maintain such coverage continuously throughout the term of this contract and, without lapse, for a
period of three years beyond the contract expiration, such that occurrences arising during the
contract term which give rise to claims made after expiration of the contract shall be covered.
Should any of the required insurance be provided under a form of coverage that includes a general
annual aggregate limit providing for claims investigation or legal defense costs to be included in
the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain
Owners and Contractors Protective Liability Insurance.
Should any required insurance lapse during the contract term, requests for payments originating
after such lapse shall not be processed until the City receives satisfactory evidence of reinstated
coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated,
City may, at its sole option, terminate this agreement effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with
the following marked specifications, and shall be maintained in compliance with these additional
specifications throughout the duration of the Contract, or longer, if so noted:
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than $1,000,000.00 shall
be provided and maintained by the Contractor. The policy shall be written on an occurrence
basis either in a single policy or in a combination of underlying and umbrella or excess
policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
Coverage A shall include premises, operations, products, and completed operations,
independent contractors, contractual liability covering this contract and broad form
property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
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Bodily injury and Property Damage Liability for premises, operations, products and
completed operations, independent contractors and property damage resulting from
explosion, collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by endorsement) covering this contract,
personal injury liability and broad form property damage liability.
[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits
(CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella
or excess policies. The policy will include bodily injury and property damage liability arising out
of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction
with this contract.
Satisfaction of the above requirement shall be in the form of a policy endorsement
for:
any auto, or
all owned hired and non-owned autos.
[X] Workers’ Compensation Insurance
Contractor shall purchase and maintain Workers’ Compensation insurance which, in addition to
meeting the minimum statutory requirements for issuance of such insurance, has Employer's
Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000
policy limit for occupational disease. The City need not be named as an "Additional Insured" but
the insurer shall agree to waive all rights of subrogation against the City, its officials, agents,
employees and volunteers for any work performed for the City by the Named Insured. For building
or construction projects, the Contractor shall comply with the provisions of Attachment 1 in
accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers’
Compensation Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work
under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the
City as insured for property damage and bodily injury which may arise in the prosecution of the
work or Contractor's operations under this contract. Coverage shall be on an “occurrence" basis
and the policy shall be issued by the same insurance company that carries the Contractor's liability
insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage
per occurrence with a $1,000,000.00 aggregate.
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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.
[ ] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided.
Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their
interests may appear.
[ ] Environmental Liability Insurance
Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract.
[ ] Riggers Insurance
The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be provided by a
Rigger’s Liability endorsement on the existing CGL coverage; through and Installation Floater
covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger’s Liability Coverage
form. Said coverage shall mirror the limits provided by the CGL coverage
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the
premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this
coverage should be written on a “blanket” basis to cover all employees, including new hires. This
type insurance should be required if the contractor has access to City funds. Limits of not less than
$ each occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts and specific
service agreements. If such additional insurance is required for a specific contract, that requirement
will be described in the "Specific Conditions" of the contract specifications.
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ATTACHMENT A
[X] Workers’ Compensation Coverage for Building or Construction Projects for
Governmental Entities
A. Definitions:
Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate
of authority to self-insure issued by the commission, or a coverage agreement (TWCC-
81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation
insurance coverage for the person's or entity's employees providing services on a
project, for the duration of the project.
Duration of the project - includes the time from the beginning of the work on the
project until the contractor's/person's work on the project has been completed and
accepted by the governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) - includes all
persons or entities performing all or part of the services the contractor has undertaken
to perform on the project, regardless of whether that person contracted directly with
the contractor and regardless of whether that person has employees. This includes,
without limitation, independent contractors, subcontractors, leasing companies, motor
carriers, owner-operators, employees of any such entity, or employees of any entity
which furnishes persons to provide services on the project. "Services" include, without
limitation, providing, hauling, or delivering equipment or materials, or providing
labor, transportation, or other service related to a project. "Services" does not include
activities unrelated to the project, such as food/beverage vendors, office supply
deliveries, and delivery of portable toilets.
B. The contractor shall provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any overage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all employees
of the Contractor providing services on the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental entity prior
to being awarded the contract.
D. If the coverage period shown on the contractor's current certificate of coverage ends
during the duration of the project, the contractor must, prior to the end of the coverage
period, file a new certificate of coverage with the governmental entity showing that
coverage has been extended.
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E. The contractor shall obtain from each person providing services on a project, and
provide to the governmental entity:
1. a certificate of coverage, prior to that person beginning work on the project, so
the governmental entity will have on file certificates of coverage showing
coverage for all persons providing services on the project; and
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
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b. a new certificate of coverage showing extension of coverage, prior to the end of
the coverage period, if the coverage period shown on the current certificate of
coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the project and
for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the person knew or should have known, of any change that
materially affects the provision of coverage of any person providing services on 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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APPENDIX B – SAMPLE CONTRACT
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND ________________
(IFB 6547)
THIS CONTRACT is made and entered into this _____ day of ________, by and between
__________ a corporation, whose address is ___________________________, 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
_________________________________, 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 # #### (Exhibit “B”)
(c) City of Denton Standard Terms and Conditions (Exhibit “C”);
(d) Insurance Requirements (Exhibit “D”);
(e) Payment and Performance Bond (Exhibit “E”);
(f) Special Terms and Conditions (Exhibit “F”);
(g) Contractor’s Proposal. (Exhibit "G");
(h) Project Plan Process (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 agreement in the year
and day first above written.
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“CONTRACTOR”
________________________
ATTEST: By:
AUTHORIZED SIGNATURE
By: _____________________________ TYPED NAME:
TITLE:
PHONE NUMBER
E-MAIL ADDRESS
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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PERFORMANCE BOND
STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENTS: That whose address is
hereinafter called Principal, and _____________________________________, a corporation organized and
existing under the laws of the State of , and fully authorized to transact business in the State of
Texas, as Surety, are held and firmly bound unto the City of Denton, a municipal corporation organized and existing
under the laws of the State of Texas, hereinafter called Owner, in the penal sum of
DOLLARS ($ ), in lawful money of the
United States, to be paid in Denton County, Texas, for the payment of which sum well and truly to be made, we
hereby bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by
these presents. The amount of this Bond shall automatically be increased by any Change Order or Supplemental
Agreement, however, increases to this bond and the Contract price shall not exceed twenty-five (25) percent in the
aggregate of the original authorization contract amount, in accordance with Texas Local Government Code 252.048,
but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease the
penal sum of this Bond.
THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a
certain Contract, identified by IFP # ________, with the City of Denton, the Owner, dated the day of
A.D. , a copy of which is hereto attached and made a part hereof, for
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill all of the
undertakings, covenants, terms, conditions and agreements of said Contract in accordance with the Plans,
Specifications and Contract Documents during the original term thereof and any extension thereof which may be
granted by the Owner, with or without notice to the Surety, and during the life of any guaranty or warranty required
under this Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms,
conditions and agreements of any and all duly authorized modifications of said Contract that may hereafter be made,
notice of which modifications to the Surety being hereby waived; and, if the Principal shall repair and/or replace all
defects due to faulty materials and workmanship that appear within a period of two (2) years from the date of final
completion and final acceptance of the Work by the Owner; and, if the Principal shall fully indemnify and save
harmless the Owner from all costs and damages which Owner may suffer by reason of failure to so perform herein
and shall fully reimburse and repay Owner all outlay and expense which the Owner may incur in making good any
default or deficiency, then this obligation shall be void; otherwise, it shall remain in full force and effect.
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PROVIDED FURTHER, that if any legal action be filed upon this Bond, exclusive venue shall lie in Denton
County, State of Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no
change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed
thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its
obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition
to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings,
etc.
This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended,
and any other applicable statutes of the State of Texas.
The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in
Denton County to whom any requisite notices may be delivered and on whom service of process may be had in
matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated
Civil Statutes of the State of Texas.
IN WITNESS WHEREOF, this instrument is executed in ______copies, each one of which shall be deemed
an original, this the _____day of __________, ____________.
ATTEST: PRINCIPAL
BY: ____________________
SECRETARY BY: ________________________________
PRESIDENT
ATTEST: SURETY
BY: ____________________
BY: ___________________________________
ATTORNEY-IN-FACT
The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process is:
NAME: ____________________________________________________________________
STREET ADDRESS: ______________________________________________________________
(NOTE: Date of Performance Bond must be date of Contract. If Resident Agent is not a corporation, give
a person's name.)
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PAYMENT BOND
STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENTS: That , whose address is
, hereinafter called Principal, and
___________________________________, a corporation organized and existing under the laws of the
State of , and fully authorized to transact business in the State of Texas, as Surety, are
held and firmly bound unto the City of Denton, a municipal corporation organized and existing under the
laws of the State of Texas, hereinafter called Owner, and unto all persons, firms, and corporations who may
furnish materials for, or perform labor upon, the building or improvements hereinafter referred to, in the
penal sum of DOLLARS
($ ) in lawful money of the United States, to be paid in Denton, County, Texas, for the
payment of which sum well and truly to be made, we hereby bind ourselves, our heirs, executors,
administrators, successors, and assigns, jointly and severally, firmly by these presents. The amount of this
Bond shall automatically be increased by any Change Order or Supplemental Agreement, however,
increases to this bond and the Contract price shall not exceed twenty-five (25) percent in the aggregate of
the original authorization contract amount, in accordance with Texas Local Government Code 252.048, but
in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease
the penal sum of this Bond.
THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered
into a certain Contract, identified by IFP # _______, with the City of Denton, the Owner, dated the day
of A.D. , a copy of which is hereto attached and made a part hereof, for
______________________________
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties and make
prompt payment to all persons, firms, subcontractors, corporations and claimants supplying labor and/or
material in the prosecution of the Work provided for in said Contract and any and all duly authorized
modifications of said Contract that may hereafter be made, notice of which modifications to the Surety
being hereby expressly waived, then this obligation shall be void; otherwise it shall remain in full force and
effect.
PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive venue shall lie in
Denton County, Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees
that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be
performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in
anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to
the Plans, Specifications, Drawings, etc.
City of Denton
Solicitation General Provisions –Terms and Conditions
Indefinite Quantity Facility Construction Services
IFB # 6547 – EXHIBIT 2 Page 102 of 102
This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as
amended, and any other applicable statutes of the State of Texas.
The undersigned and designated agent is hereby designated by the Surety herein as the Resident
Agent in Denton County to whom any requisite notices may be delivered and on whom service of process
may be had in matters arising out of such surety, as provided by Article 7.19 -1 of the Insurance Code,
Vernon's Annotated Civil Statutes of the State of Texas.
IN WITNESS WHEREOF, this instrument is executed in ___ copies, each one of which shall be
deemed an original, this the _____ day of __________, ______.
ATTEST: PRINCIPAL
BY: ______________________
SECRETARY BY: _______________________________
PRESIDENT
ATTEST: SURETY:
BY: ___________________
BY: ________________________________
ATTORNEY-IN-FACT
The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process
is:
NAME: ________________________________________________________
STREET ADDRESS: __________________________________________________
(NOTE: Date of Payment Bond must be date of Contract. If Resident Agent is not a corporation, give a
person's name.)