7042 - Construction of Home Improvement Program- 111 Peach Street, 2.General Provisions/ Terms and Conditions
/
Materials Management Department
901-B Texas Street
Denton, Texas 76209
940-349-7100
purchasing@cityofdenton.com
RFP – 7042
Exhibit 2
General Provisions –Terms and Conditions
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 Facility Construction Services.
This exhibit governs this solicitation and supporting exhibits as identified in the Main Document Table of Contents.
Table of Contents
A. GENERAL PROVISIONS
1. AVAILABILITY OF TECHNICAL DRAWINGS AND SPECIFICATIONS
2. EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF THE WORK
3. SILENCE OF SPECIFICATIONS
4. RESPONDENTS COST TO DEVELOP SUBMITTAL
5. MINIMUM RESPONSE
6. VALIDITY PERIOD
7. REJECTION OF SUBMITTAL
8. PROPRIETARY INFORMATION
9. NON-ENDORSEMENT
10. ASSIGNMENT
11. UNAUTHORIZED COMMUNICATIONS
12. DISQUALIFICATIONS
13. INTELLECTUAL PROPERTY INDEMNIFICATION
14. RIGHTS TO DATA, DOCUMENTS, AND COMPUTER SOFTWARE (GOVERNMENTAL ENTITY OWNERSHIP)
15. PATENT RIGHTS
16. PREFERENCES
17. AWARD
18. POST AWARD ADDITIONAL REQUIREMENTS
19. CONTRACTS
20. BONDS
21. RETAINAGE
22. INSURANCE
23. WARRANTIES
24. SUBSTITUTIONS
25. PRODUCT CHANGES DURING CONTRACT TERM
26. ADDING NEW PRODUCTS OR SERVICES TO THE CONTRACT AFTER AWARD
27. ASBESTOS FREE MATERIALS
28. PREVAILING WAGE RATES
29. SAFETY AND ENVIRONMENTAL HAZARDS
30. CONTRACTOR STANDARDS OF PERFORMANCE
31. ANTICIPATED PROBLEMS AND PROPOSED SOLUTIONS
32. ADDITIONAL GENERAL REQUIREMENTS
33. REMEDIES
a. COMPLETION OF CONTRACTOR’S DEFAULT
b. LIQUIDATED DAMAGES
c. CUMULATIVE REMEDIES
34. PAYMENT AND PERFORMANCE REQUIREMENTS
a. PAYMENT AND INVOICES:
b. PAYMENT TO PERFORMANCE MILESTONES
c. TAX EXEMPTION
d. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR
e. PAYMENTS TO MATERIAL-MEN AND SUBCONTRACTORS
35. SUBMISSION ERRORS
B. SPECIAL NOTICES AND REQUIREMENTS
1. CONTRACT ADMINISTRATION SUBMITTALS AND REQUIREMENTS
2. MEETINGS
3. SURVEYS, MEASUREMENTS AND LAYOUTS
4. MISCELLANEOUS REQUIREMENTS
C. STANDARD PURCHASE TERMS AND CONDITIONS FOR FACILITY CONSTRUCTION SERVICES
APPENDIX A- INSURANCE REQUIREMENTS AND WORKERS’ COMPENSATION REQUIREMENTS
APPENDIX B – SAMPLE CONTRACT
EMAIL ADDRESS
A. GENERAL PROVISIONS
1. AVAILABILITY OF TECHNICAL DRAWINGS AND SPECIFICATIONS
2. EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF THE WORK
3. SILENCE OF SPECIFICATIONS
4. RESPONDENTS COST TO DEVELOP SUBMITTAL
5. MINIMUM RESPONSE
6. VALIDITY PERIOD
7. REJECTION OF SUBMITTAL
8. PROPRIETARY INFORMATION
9. NON-ENDORSEMENT
10. ASSIGNMENT
11. UNAUTHORIZED COMMUNICATIONS
12. DISQUALIFICATIONS
13. INTELLECTUAL PROPERTY INDEMNIFICATION
14. RIGHTS TO DATA, DOCUMENTS, AND COMPUTER SOFTWARE (GOVERNMENTAL ENTITY OWNERSHIP)
15. PATENT RIGHTS
16. PREFERENCES
17. AWARD
18. POST AWARD ADDITIONAL REQUIREMENTS
19. CONTRACTS
20. BONDS
21. RETAINAGE
22. INSURANCE
23. WARRANTIES
24. SUBSTITUTIONS
25. PRODUCT CHANGES DURING CONTRACT TERM
26. ADDING NEW PRODUCTS OR SERVICES TO THE CONTRACT AFTER AWARD
27. ASBESTOS FREE MATERIALS
28. PREVAILING WAGE RATES
29. SAFETY AND ENVIRONMENTAL HAZARDS
30. CONTRACTOR STANDARDS OF PERFORMANCE
31. ANTICIPATED PROBLEMS AND PROPOSED SOLUTIONS
32. ADDITIONAL GENERAL REQUIREMENTS
33. REMEDIES
a. COMPLETION OF CONTRACTOR’S DEFAULT
b. LIQUIDATED DAMAGES
c. CUMULATIVE REMEDIES
34. PAYMENT AND PERFORMANCE REQUIREMENTS
a. PAYMENT AND INVOICES:
b. PAYMENT TO PERFORMANCE MILESTONES
c. TAX EXEMPTION
d. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR
e. PAYMENTS TO MATERIAL-MEN AND SUBCONTRACTORS
35. SUBMISSION ERRORS
B. SPECIAL NOTICES AND REQUIREMENTS
1. CONTRACT ADMINISTRATION SUBMITTALS AND REQUIREMENTS
2. MEETINGS
3. SURVEYS, MEASUREMENTS AND LAYOUTS
4. MISCELLANEOUS REQUIREMENTS
C. STANDARD PURCHASE TERMS AND CONDITIONS FOR FACILITY CONSTRUCTION SERVICES
APPENDIX A- INSURANCE REQUIREMENTS AND WORKERS’ COMPENSATION REQUIREMENTS
APPENDIX B – SAMPLE CONTRACT
EMAIL ADDRESS
GENERAL PROVISIONS
AVAILABILITY OF TECHNICAL DRAWINGS AND SPECIFICATIONS
Technical Specifications related to this project are located in Exhibit 3 and Drawings/Plans are Exhibit 4 of this solicitation, if applicable.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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 this 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.
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.
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.
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.
PATENT RIGHTS
The contractor agrees to indemnify and hold harmless the City from any claim involving patent right infringement or copyrights on goods supplied.
PREFERENCES
LOCAL PREFERENCE
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.
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.
Lowest Responsible Bid – Price is the single determinant factor when awarding a bid to a responsible bidder.
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)
Criteria
Lowest Responsible Bids
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.
A three percent (3%) price differential will apply to bids, excluding construction and services, greater than $500,000.
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
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.
Local Bidder Preference Consideration Application
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.
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.
Bidders seeking local preference must meet all specifications and minimum requirements contained in the bid documents.
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.
Award of Contract-The City Council may award a competitively bid contract to the lowest responsible bidder, local bidder or reject all bids.
VENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS
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.
A governmental agency procuring goods or services may:
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
require that a vendor demonstrate that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality.
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.”
AWARD
This contract will be awarded to one firm as a lump sum single contract.
POST AWARD ADDITIONAL REQUIREMENTS
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.
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.
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.
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.
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.
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.
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.
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.
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 public works contracts in excess of $50,000.
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.
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.
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).
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.
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
ASBESTOS FREE MATERIALS
The contractor shall provide asbestos-free materials as represented by the Manufacturer’s “Materials Safety Data Sheets”
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”.
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.
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.
Contractor shall deliver goods or services within specified delivery times for 95% of all orders.
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.
ADDITIONAL GENERAL REQUIREMENTS
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.
The awarded Contractor shall provide to the City of Denton, detailed reports of time and services provided to the City on a monthly basis.
Staff available to assist the selected provider is limited; the proposals submitted should not anticipate extensive staff assistance during equipment repairs or maintenance.
REMEDIES
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.
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 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.
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.
PAYMENT AND PERFORMANCE REQUIREMENTS
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 Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201-4299. A pro-forma invoice shall be sent to the contract administrator
as identified in the Notice to Proceed. It is the intention of the City of Denton to make 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.
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 of Denton and the City’s Project Staff shall review such for completion and accuracy, prior to payment authorization.
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.
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 payment 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.
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.
SUBMISSION ERRORS
Prices offered shall be used for submission analysis and for agreement pricing. In case of errors in the pricing extension or totals, the unit pricing offered by the respondent will
govern.
SPECIAL NOTICES AND REQUIREMENTS
CONTRACT ADMINISTRATION SUBMITTALS AND REQUIREMENTS
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 following:
List of Subcontractors: before the execution of the Contract, the respondent awarded the contract will 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.
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.
Contract Price Breakdown: upon execution of the Contract, the Contractor shall submit to the City for approval a breakdown of the Contract price, itemizing material and labor for
various classifications of work.
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.
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.
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 will 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.
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.
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 RESPONSIBILITY WITH REGARD TO CONSTRUCTING THE WORK IN ACCORDANCE WITH THE CONTRACT.
Contractor shall submit appropriate tests including, but not limited to:
Any test required in the technical specifications
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.
Test to prove adequacy of design and construction of any feature that may have been accepted by Owner under contractor's "Alternate Proposal".
Any test that may be occasioned by any local, state, or federal law.
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 drawn 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.
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.
Schedule of Tests, Submittals: A schedule of anticipated tests and submittals begins on the next page. Additional submittals may be required.
MEETINGS
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.
City will schedule meeting and provide meeting place.
Attendance: The following are expected to attend:
City's Representative.
Consultant's Construction Administrator.
Representatives from Sub-Consultants
Contractor's General Superintendent, Project
Superintendent and Project Coordinator
Representatives of major subcontractors
Agenda Items:
List of major Subcontractors and Suppliers
Tentative construction schedule
Critical work sequencing
Major equipment deliveries
Designation of responsible personnel
Procedures and processing of field decisions, proposal requests, submittals color coordination, change orders, and applications for payment.
Adequacy of distribution of Contract Documents.
Procedures for maintaining Record Documents
Use of Premises: office, work, storage, staging areas; Owner's requirements
Construction facilities, controls and construction aids
Temporary utilities
Safety and first aid procedures
Security procedures
Housekeeping procedures
Other business
The City's Representative will preside over the meeting.
Progress Meetings: Construction progress meetings may be called by the Project Manager, Project Inspector or the General Contractor to review job progress or problems.
Schedule meeting and notify in writing those concerned at least one week in advance of meeting.
Provide a convenient, comfortable meeting place.
Contractor's Project Superintendent or Project Manager shall preside over meeting.
Attendance: The following are expected to attend:
City's Representative
Consultant's Construction Administrator
Sub-consultant's unless notified otherwise
Contractor's General Superintendent, Project
Superintendent and Project Coordinator.
Subcontractors having work in progress
Subcontractors whose work will start within the next month
Others as requested by City, A/E, or Contractor
Agenda
Review, approval of minutes or previous meeting
Review of work progress since previous meeting
Field observation, problems, conflicts
Problems which impede construction schedule
Review of off-site fabrication, and delivery schedules
Corrective measures and procedures to regain
projected schedule.
Revisions to construction schedules
Progress schedules for succeeding period
Schedule coordination
Review proposed changes for effect on construction schedule, on completion date, and effect on other contracts of project
Maintenance of quality standards
Pending changes and substitutions
Other business
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.
SURVEYS, MEASUREMENTS AND LAYOUTS
General: The City will 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.
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.
MISCELLANEOUS REQUIREMENTS
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.
The Contractor shall be responsible for all spoil removals, and any excess soil that will require removal.
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.
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.
STANDARD PURCHASE TERMS AND CONDITIONS FOR FACILITY CONSTRUCTION SERVICES
ARTICLE 1 GENERAL PROVISIONS
GENERAL DEFINITIONS
The following definitions apply throughout these General Conditions and to the other Contract Documents:
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:
a written Supplemental Agreement to the Contract signed by authorized representatives of both parties;
a Change Order, including Change Orders signed only by the Owner as described in Subparagraph 7.1(b) and Subparagraph 7.1(e); or
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.
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:
between the Architect/Engineer and Contractor;
between the Owner and a Subcontractor or Sub-subcontractor; or
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.
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.
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.
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.
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.
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.
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.
BASE BID
The Base Bid is the price quoted for the work before alternates are considered.
HAZARDOUS SUBSTANCE
The term Hazardous Substance is defined to include the following:
any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non-friable;
any polychlorinated biphenyls (“PCBs”), or PCB-containing materials, or fluids;
radon;
any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or gaseous waste;
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;
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;
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
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.
OTHER DEFINITIONS
As used in the Contract Documents, the following additional terms have the following meanings:
“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;
“shall” means the action of the party to which reference is being made is mandatory;
“as required” means as prescribed in the Contract Documents; and
“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.
EXECUTION, CORRELATION AND INTENT
The Building Construction Services Agreement shall be signed by duly authorized representatives of the Owner and Contractor as provided in the Agreement.
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.
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.
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.
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.
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.
Deviations from Contract Documents shall be made only after written approval is obtained from Architect/Engineer and Owner, as provided in Article 7.
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.
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:
Amendments (see Paragraph 7.2 for order of precedence between Amendments);
the Building Construction Services Agreement;
addenda, with those addenda of later date having precedence over those of an earlier date;
the Supplementary General Conditions and Special Provisions, if any;
the General Conditions for Building Construction;
the Specifications and Drawings.
1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER’S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS
All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and shall remain the property of the Owner and are, with the exception of the Contract set for
each party, to be returned to the Owner upon request at the completion of the Work.
1.4 CAPITALIZATION
Terms capitalized in these General Conditions include those which are:
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);
the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses;
the titles of other documents published or used by the Owner as manuals or official policy statements; or
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
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.
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.
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.
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.
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).
The Owner shall forward all instructions to the Contractor through the Architect/Engineer, except for the Owner's Notice to Proceed and the Owner’s decision to carry out Work as described
in Paragraph 2.4.
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 fails
to carry out all or any part of the Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to stop the Work, or any portion of the Work,
until the cause for the order has been eliminated. The right of the Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this right
for the benefit of the Contractor or any other person or entity. The rights of the Owner under this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner’s rights
under Paragraph 12.2.
2.4 OWNER’S RIGHT TO CARRY OUT THE WORK
If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure
or refusal with diligence and promptness within fourteen (14) days after receipt of notice from the Owner, the Owner may correct the Contractor’s failure or refusal or cause such failure
or refusal to be corrected, without affecting, superseding, or waiving any other contractual, legal, or equitable remedies the Owner has, including but not limited to the Owner’s termination
rights under
Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost of correction, including Architect/Engineer's compensation for additional services and
expenses made necessary by the failure or refusal of the Contractor from payments then or thereafter due to the Contractor. The cost of correction is subject to verification (but not
approval) by the Architect/Engineer. If payments then or thereafter due the Contractor are not sufficient to cover the cost of correction, the Contractor shall pay the difference to
the Owner.
2.5 NOTICE TO PROCEED
After final execution of the Contract and receipt and approval of the required performance and payment bonds and evidence of required insurance, the Owner will issue a written notice
to proceed with the Work, including the designated Contract Time within which Substantial Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a written
notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable adjustment of the Contract Time, if properly claimed pursuant to the requirements
of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the Contract Sum whatsoever for this reason.
ARTICLE 3 THE CONTRACTOR
3.1 DEFINITION OF CONTRACTOR
The Contractor is the person or business entity identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular
in number. The term “Contractor” means the Contractor or the Contractor’s authorized employees or representatives.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
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 error, omission, conflict, or discrepancy, without any right to any increase to the Contract
Sum or Contract Time.
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
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.
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.
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.
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.
Any Contractor, Subcontractor, Sub-subcontractor, or separate contractor who commences Work over, in, or under any surface prepared by the Owner or by any other contractor, subcontractor,
sub-subcontractor or separate contractor without the Contractor having given written notice to the Architect/Engineer of the existence of any faulty surface or condition in the surface
that prevents achieving the quality of workmanship specified by
the Contract Documents and without having obtained the prior approval of the Architect/Engineer and the Owner to proceed is deemed to have accepted the surface or condition in the surface
as satisfactory at the commencement of such Work. Any unsatisfactory Work subsequently resulting from such a faulty surface or condition in the surface that was not pre-approved by
the Architect/Engineer or the Owner after notice as provided above may be rejected and replacement required, without any increase to the Contract Sum or Contract Time.
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
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.
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.
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:
to bona fide residents of the City of Denton, Texas;
to bona fide residents of the County of Denton, Texas;
to bona fide residents of the State of Texas;
to bona fide residents of the United States.
3.5 WARRANTY
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.
Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent to final payment, the terms and conditions of all special warranties required under
the Contract Documents.
3.6 TAXES
The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall
not be liable for, or pay the Contractor's cost of, such sales and use taxes which would otherwise be payable in connection with the purchase of tangible personal property furnished
and incorporated into the real property being improved under the Contract Documents or the purchase of materials, supplies and other tangible personal property, other than machinery
or equipment and its accessories and repair and replacement parts, necessary and essential for performance of the Contract which is to be completely consumed at the job site. The Contractor
shall issue an exemption certificate in lieu of the tax on such purchases.
3.7 PERMITS, FEES AND NOTICES
The Architect/Engineer will apply and arrange for the issuance of the City of Denton Building Permit. The Contractor and Subcontractors will apply and arrange for the issuance of all
other required permits, and will not be required to pay a fee for any City of Denton
permits required for the Project. The Owner will pay all service extension charges, including tap fees, assessed by the Water Utilities Department.
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.
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.
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
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.
Unless otherwise provided in the Contract Documents:
materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay in the Work;
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;
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;
whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect:
(i) the difference between actual costs and the allowances under Clause (b) (2); and
(ii) changes in Contractor’s costs under Clause (b) (3);
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
The Contractor shall, immediately after award of the Contract and before submittal of the first Application for Payment, prepare and submit the construction schedule for the Architect/Engineer's
and Owner's information, review, and approval in accordance with the following provisions:
(1) Unless otherwise approved in writing by the Owner, the construction schedule shall not exceed the Contract Time limits currently in effect under the Contract Documents and shall
provide for expeditious and practicable execution of the Work.
(2) The construction schedule shall include all shop drawing and submittal data requirements, indicating for each:
(i) the latest date to be submitted by the Contractor; and
(ii) the latest date for approval by the Architect/Engineer.
(3) The construction schedule shall be in the form of a critical path management schedule, and shall indicate each critical task (the “predecessor”) of all the major construction activities
of the Work in a logical and sequential order (the “project network”) which requires completion prior to commencement of the task next following (the “successor”). Each task shall be
identified with:
(i) actual work time, exclusive of slack time, for accomplishment;
(ii) the latest start date;
(iii) the latest finish date;
(iv) the amount of float associated with each task;
(v) the amount of labor, material, and equipment associated with each task; and
(vi) the percentage of completion as of the date of the current schedule.
(4) The construction schedule shall be revised and updated monthly to reflect the actual status of the Work and shall be submitted with each Application for Payment.
(5) On or before the first day of each month, following the date of commencement of the Work as stated in the notice to proceed, the Contractor shall prepare and submit to the Architect/Engineer
and the Owner an up-to-date status report of the progress of the various construction phases of the Work in the form of an updated construction schedule. This status report shall consist
of a time scale drawing indicating actual 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.
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.
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)
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
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.
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.
Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged.
Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals
are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect/Engineer is subject
to the limitations of Paragraph 4.2.
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.
The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal has been
approved by the Architect/Engineer. Work requiring this submittal and review
shall be in accordance with approved submittals and any identified exceptions noted by the Architect/Engineer.
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.
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.
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.
Informational submittals upon which the Architect/Engineer is not expected to take responsive action may be so identified in the Contract Documents.
When professional certification of performance criteria of materials, systems, or equipment is required by the Contract Documents, the Architect/Engineer shall be entitled to rely upon
the accuracy and completeness of such calculations and certifications.
3.13 USE OF THE PROJECT SITE
The Contractor shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents and shall not unreasonably encumber the Project
site with materials or equipment.
3.14 CUTTING AND PATCHING
The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly.
The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise
altering the construction, or by excavating. The Contractor shall not cut or otherwise alter the construction by the Owner or a separate contractor except with the written consent of
the Owner and of the separate contractor; consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor’s
consent to cutting or otherwise altering the Work.
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
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.
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
Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or agencies
having jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with
an independent testing laboratory or entity selected or contracted by the Owner or with the appropriate governmental entity or agency, and the Owner shall bear all related costs of
tests, inspections, and approvals. The Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to be made so the Architect/Engineer may
observe such procedures. The Owner shall bear costs of tests, inspections, or approvals which become requirements after bids or proposals are received.
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).
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.
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.
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.
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.
3.19 INDEMNIFICATION
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.
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.
Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which could result to or be created for the Owner, its officers, agents, or employees, or the
Architect/Engineer pursuant to State or Federal laws or regulations relating to pollution of the environment and State or Federal laws or regulations relating to the occupational safety
and health of workers. The Contractor specifically agrees to comply with the above-mentioned laws and regulations in the performance of the Work by the Contractor and that
the obligations of the Owner, its officers, agents, and employees, and the Architect/Engineer under the above-mentioned laws and regulations are secondary to those of the Contractor.
ARTICLE 4 CONTRACT ADMINISTRATION
4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER)
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.
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.
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 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
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.
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.
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.
Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate through the
Architect/Engineer. Communications by and with the Architect/Engineer’s consultants shall be through the Architect/Engineer. Communications by and with Subcontractors and material suppliers
shall be through the Contractor. Communications by and with separate contractors will be through the Owner. The Contractor shall provide written confirmation of communications made
directly with the Owner and provide copies of such confirmation to the Architect/Engineer.
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.
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.
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.
The Architect/Engineer will prepare Change Orders and may authorize minor changes in the Work as provided in Paragraph 7.3.
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.
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.
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.
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.
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
Definition; General Notice of Claim Procedure. As used in these General Conditions, a “Claim” means a demand or assertion by one of the parties to the Contract seeking an adjustment
of the terms of the Contract Documents, of the Contract Sum, of the Contract Time, or some other relief in respect to the terms of the Contract Documents. The term also includes all
other disputes between the Owner and the Contractor arising out of or relating to the Project or the Contract Documents, including but not limited to claims that work was outside the
scope of the Contract Documents. The responsibility to substantiate the Claim and the burden of demonstrating compliance with this provision shall rest with the party making the Claim.
Except where otherwise provided in the Contract Documents, a Claim by the Contractor, whether for additional compensation, additional time, or other relief, including but not limited
to claims arising from concealed conditions, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT/ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS AFTER OCCURRENCE OF THE EVENT OR EVENTS
GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising
from concealed conditions, shall be signed and sworn to by an authorized corporate officer (if not a corporation, then an official of the company authorized to bind the Contractor by
his signature) of the Contractor, verifying the truth and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURE
AND TIME LIMITS SET OUT IN THIS PARAGRAPH.
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.
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.
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:
a concealed subsurface condition is encountered in the course of performance of the Work;
a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or
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
a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3(a) of these General Conditions; and
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.
Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS TESTING REPORTS, GEOTECHNICAL REPORTS,
OR ENVIRONMENTAL SITE ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT/ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR’S OWN
RISK. THE OWNER AND THE ARCHITECT/ENGINEER DO NOT GUARANTEE OR WARRANT ANY INFORMATION SHOWN IN THE PROJECT SITE INFORMATION AND REPORTS.
Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding
to execute the Work. Prior notice is not required for claims relating to an emergency endangering life or property arising under Paragraph 10.3. In addition, the Contractor's request
for an increase in the Contract Sum for any reason (other than work performed under emergency conditions) shall be made far enough in advance of required work to allow the Owner and
the Architect/Engineer a sufficient amount of time, without 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:
a written interpretation from the Architect/Engineer;
a written order for a minor change in the Work issued by the Architect/Engineer;
failure of payment by the Owner;
termination of the Contract by the Owner;
the Owner’s temporary suspension of all or any portion of the Work where the Contractor was not at fault; or
other reasonable grounds.
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.
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:
the requirements of Paragraph 4.3 of these General Conditions; and
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.
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.
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:
If the Contractor falls behind the approved construction schedule for whatever reason, the Owner shall have the right, in the Owner’s sole discretion, to order the Contractor to develop
a recovery schedule as described in Paragraph 3.10 or to accelerate its progress in such a manner as to achieve Substantial Completion on or before the Contract Time completion date
or such other date as the Owner may reasonably direct and, upon receipt, the Contractor shall take all action necessary
to comply with the order. In such event, any possible right, if any, of the Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph
(i).
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.
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).
Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver of claims by the Owner except those arising from:
claims, security interests, purported liens, or other attempted encumbrances arising out of the Contract and remaining unsettled;
defective or nonconforming Work appearing after Substantial Completion;
latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion; or
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.
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 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.
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
Immediately after the award of the Contract by the Owner, and before the Building Construction Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish
to the Architect/Engineer in writing, for acceptance by the Owner and the Architect/Engineer, a list of the names, addresses, telephone numbers, M/WBE certification numbers (where applicable),
and type of work of the Subcontractors
(including those who are to furnish materials or equipment fabricated to a special design), proposed for the principal portions of the Work, including furnishings when made a part of
the Contract. The Contractor shall immediately notify the Owner in writing of any changes in the list as they occur. The Architect/Engineer will promptly reply to the Contractor in
writing stating whether or not the Owner or the Architect/Engineer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or
Architect/Engineer to reply promptly shall constitute notice of no reasonable objection.
The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect/Engineer has made reasonable and timely objection.
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.
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
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.
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:
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.
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.
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.
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 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
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.
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.
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 is denied by the Owner, the Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions.
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
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.
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.
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.
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).
Should the Contractor cause damage to the work or property of any separate contractor on the Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement,
if the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim on account of any damage alleged to have been so sustained, the Owner shall notify
the Contractor who shall defend such proceedings, at the Contractor's expense, and if any judgment or award against the Owner arises from the separate contractor’s claim, the Contractor
shall pay or satisfy it and shall reimburse the Owner for all attorney's fees and costs which the Owner has incurred.
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 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.
In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change Orders to verify and confirm the terms and conditions established by Change Order; however,
should the Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the change directed by the Owner and the Architect/Engineer to the best
of his ability in accordance with the provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of the changes approved, including the adjustment
in the Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE
ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER. The execution of a Change Order by the Contractor shall constitute
conclusive evidence of the Contractor’s agreement to the ordered changes in the Work. The Contractor forever releases any claim against the Owner for additional time or compensation
for matters relating to or arising out of or resulting from the Work included within or affected by the executed Change Order. This release applies to claims related to the cumulative
impact of all Change Orders and to any claim related to the effect of a change on other Work.
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.
The method of determining the cost or credit to the Owner for any change in the Work shall be one of the following:
mutual acceptance of a not-to-exceed lump sum amount properly itemized and supported by sufficient substantiating data to permit evaluation;
unit prices stated in the Contract Documents or subsequently agreed upon;
cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or
the force account method provided in Subparagraph 7.1(e)
If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final
dollar figure, or if the Contractor for whatever reason refuses to sign the Change Order in question, the Contractor, provided he receives a written order signed by the Owner, shall
promptly proceed with the Work involved. The cost of the Work involved shall then be calculated on the basis of the reasonable jobsite expenditures and savings of those performing the
Work attributable to the changes, including a reasonable allowance for overhead and profit, such allowance in any case never to exceed 15%. In such case, the Contractor shall keep an
itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate supporting data as the Architect/Engineer and Owner may prescribe. Sworn copies of
the itemized accounting shall be delivered to the Architect/Engineer each day during the performance of force account work, with copies to the Owner.
FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN-TO ITEMIZED ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION
OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work are limited to the following:
costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers compensation insurance;
costs of materials, supplies and equipment (but not to include off-site storage unless approved in writing by the Owner), whether incorporated or consumed;
rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others;
costs of premiums for all bonds and insurance related to the Work; and
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.
The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost
confirmed by the Architect/Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved
in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change.
7.2 SUPPLEMENTAL AGREEMENTS
A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order form, including but not limited to situations involving partial occupancy
of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more
appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents
interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental
Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution
of Supplemental Agreements.
7.3 MINOR CHANGES IN THE WORK
The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract
Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor
shall carry out such written orders promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no
Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor submits its change proposal, prior to complying with the minor change ordered and in no
event later than ten (10) working days from the date the minor change was ordered, to the Owner for approval.
7.4 TIME REQUIRED TO PROCESS AMENDMENTS
All of the Contractor’s responses to proposal requests shall be accompanied by a complete, itemized breakdown of costs. Responses to proposal requests shall be submitted sufficiently
in advance of the required work to allow the Owner and the Architect/Engineer a minimum of thirty (30) calendar days after receipt by the Architect/Engineer to review the itemized breakdown
and to prepare or distribute additional documents as may be necessary. All of the Contractor's responses to proposal requests shall include a statement that the cost described in the
response represents the complete, total and final cost and additional Contract Time associated with the extra work, change, addition to, omission, deviation, substitution, or other
grounds for seeking extra compensation under the Contract Documents, without reservation or further recourse.
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
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.
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.
The date of Substantial Completion is the date certified by the Architect/Engineer in accordance with Paragraph 9.7.
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
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.
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.
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
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.
Claims relating to Contract Time and time extensions shall be made in accordance with the applicable provisions of Paragraph 4.3.
No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE CONTRACTOR
SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR 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.
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.
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.
The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend the Work, in whole or in part, for such period or periods as the Architect/Engineer deems necessary
due to unusual or severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due to failure on the part of the Contractor to correct conditions
considered unsafe for workmen or the general public. If it should become necessary to stop the Work for an indefinite period, the Contractor shall store all materials in such a manner
that they will not obstruct or impede the public unnecessarily or become damaged in any way, and shall take every precaution to prevent damage or deterioration of the Work performed.
In cases of suspension of the Work under this Subparagraph, the Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Contractor
shall not suspend the Work in whole or in part without written authority from the Architect/Engineer or the Owner, and shall resume the Work promptly when notified by the Architect/Engineer
or the Owner to resume operations.
In the event of a delay that is the responsibility of the Contractor or any of the Subcontractors, for which the Contractor is not entitled to a time extension under the provisions of
this Contract, the Owner may direct that the Work be accelerated by means of overtime, additional crews or additional shifts, or resequencing. This acceleration shall be at no cost
to the Owner and will continue until the Contract Time is restored. In the event of a delay for which the Contractor is entitled to a time extension, as determined by the Architect/Engineer,
Owner may similarly direct acceleration and the Contractor agrees to perform same on the basis that the Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i).
THE CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR PRODUCTIVITY OR EFFICIENCY.
ARTICLE 9 PAYMENTS AND COMPLETION
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
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.
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.
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:
the Owner has given prior approval of such off-site storage in writing;
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
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.
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.
All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an approved schedule for delivery to the Project site shall be classified as an “early
delivery.” All early delivery materials or equipment must have the express written permission of the Owner to be stored on the Project site. If any unauthorized early delivery occurs,
Contractor shall, at Contractor’s expense or at the expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the Project site and stored off-site
until required at the Project site. All costs of labor, transportation and storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized
early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole expense, and amounts may be withheld from the Contractor's Application for Payment
to reimburse the Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY
MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as early delivery will not be approved
for payment as stored materials prior to thirty (30) days before the incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date is expressly
approved in writing by the Owner.
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
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
City of Denton General Conditions for Building Construction.
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.
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:
made exhaustive or continuous on-site inspections to check the quality or quantity of the Work;
reviewed construction means, methods, techniques, sequences or procedures;
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
made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum.
Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($100.00) in amount, 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.
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.
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
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:
defective or nonconforming Work not remedied;
third party claims filed or reasonable evidence indicating probable filing of such claims;
failure of the Contractor to make payments properly to Subcontractors or for labor, materials, or equipment;
reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;
damage to the Owner or another contractor;
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 damages for the anticipated delay;
persistent failure to carry out the Work in accordance with the Contract Documents; or
mathematical or other errors that are discovered in the Application for Payment.
When each of the above reasons that existed for withholding certification are removed or remedied, certification will be made for amounts previously withheld.
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
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.
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.
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.
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.
Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6(b), (c), and (d).
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.
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.
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 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.
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.
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
The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate Supplemental Agreement with the Contractor,
provided such occupancy or use is consented to by the insurer as required under Subparagraph 11.2(e) and authorized by public authorities having jurisdiction over the Work. Such partial
occupancy or use may commence whether or not the portion is Substantially Complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each
of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of
the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a
list to the Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the
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.
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.
Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract
Documents.
9.9 FINAL COMPLETION AND FINAL PAYMENT
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.
Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect/Engineer:
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;
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;
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;
a consent of surety to final payment; and
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.
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 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.
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.
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
The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:
employees on the Work and other persons who may be affected thereby;
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
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.
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.
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.
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.
USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner shall have the right to pre-approve the use of any explosives on the Project; the Contractor shall not assume in its bid
that permission to use explosives will be granted. The Owner shall NOT be liable for any claim for additional time or compensation as a result of the Owner's denial of permission to
use explosives. Where use of explosives is permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY RESPONSIBLE for the determination as to whether explosives shall actually
be used, and for any result from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and employees,
and the Architect/Engineer against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death), property damage or other harm for which recovery
of damages is sought, suffered by any person or persons, as the result of the use, handling or storage of the explosives by the Contractor or any Subcontractor, REGARDLESS OF WHETHER
SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS,
AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT/ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any other indemnity paragraph
in this Contract, this paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this Contract and is not intended to create or grant any rights,
contractual or otherwise, to or for any other person or entity. The Contractor shall furnish the Owner and the Architect/Engineer with evidence of insurance sufficient to cover possible
damage or injury, which insurance shall either include the Owner and the Architect/Engineer as additional insureds or be sufficiently broad in coverage as to fully protect the Owner
and the Architect/Engineer. All explosives shall be stored in a safe and secure manner, under the care of a competent watchman at all times, and all storage places shall be marked clearly
"DANGEROUS-EXPLOSIVES." The method of storing and handling explosives and highly flammable materials shall conform to Federal and State laws, City of Denton ordinances, and the City
of Denton Fire Department regulations. The Contractor shall notify any telecommunications and public utility company and any private property owners having structures in the proximity
of the Project Site of the Contractor’s intention to use explosives, and such notice shall be given sufficiently in advance to enable the telecommunications and public utility companies
and private property owners to take such steps as they may deem necessary to protect their property from injury. The notice shall not relieve the Contractor of any responsibility for
damage resulting from any blasting operations.
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.
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.
The Contractor shall not load or permit any part of the Work or the Project site to be loaded so as to endanger its safety.
10.3 EMERGENCIES
In an emergency affecting safety, health, or security of persons or property, the Contractor shall act, at the Contractor’s discretion, to prevent threatened damage, injury, or loss.
Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7.
10.4 PUBLIC CONVENIENCE AND SAFETY
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.
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 of major thoroughfares or street upon which transit lines operate, be forty-eight (48) hours in advance. The Owner reserves
the right to postpone or prohibit any closure or obstruction of any streets or thoroughfares to the extent necessary for the safety and benefit of the traveling public. The Contractor
shall, when directed by the Architect/Engineer or the Owner, keep any street or streets in condition for unobstructed use by City departments. When the Contractor is required to construct
temporary bridges or make other arrangements for crossing over ditches or around structures, the Contractor’s responsibility for accidents shall include the roadway approaches as well
as the crossing structures.
10.5 BARRICADES, LIGHTS AND WATCHMEN
If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall, at the Contractor’s own cost and expense, furnish, erect and maintain sufficient barricades,
fences, lights and danger signals, shall provide sufficient watchmen, and shall take such other precautionary measures as are necessary for the protection of persons or property and
of the Work. All barricades shall be painted in a color that will be visible at night, shall indicate in bold letters thereon the Contractor's name and shall be illuminated by lights
from sunset to sunrise. The term “lights,” as used in this Paragraph, shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades with adequate markings
and directional devices shall also be erected to keep vehicles from being driven on or into any Work under construction. The Contractor will be held responsible for all damage to the
Work due to failure of barricades, signs, lights and watchmen to protect the Work. Whenever evidence is found of such damage, the Architect/Engineer may order the damaged portion immediately
removed and replaced by the Contractor at Contractor's cost and expense. The Contractor's responsibility for maintenance of barricades, signs, and lights, and for providing watchmen,
shall not cease until the Project has been finally accepted by the Owner.
10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED
In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered
to do so by the Architect/Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs
of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying
sewer and water lines and appurtenances, repairing structures,
and for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall conform to the Contractor's current and approved schedule for the performance
of the Work, provided that proper notification of schedule requirements has been given to the Owner by the Contractor.
10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS
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
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.
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
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.
In the event the Contractor encounters on the site materials reasonably believed to be a Hazardous Substance that have not been rendered harmless, and removal of such materials is not
a part of the scope of Work required under the Contract Documents, the Contractor shall immediately stop Work in the affected area and report in writing the facts of such encounter
to the Architect/Engineer and the Owner. Work in the affected area shall not thereafter be resumed except by written order of the Owner unless and until the material is determined not
to be a Hazardous Substance or the Hazardous Substance is remediated. The Owner may choose to remediate the Hazardous Substance with a separate contractor or through a Change Order
with the Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Contractor or any of its Subcontractors,
the Contractor shall be responsible for remediating the condition at the sole expense of the Contractor in accordance with the Contractor’s APPROVED Spill Remediation Plan. An extension
of the Contract Time for any delay in the progress schedule caused as a result of the discovery and remediation of a Hazardous Substance may be granted by the Owner only if all remaining
Work on the Project must be suspended and the delay cannot be made up elsewhere in the progress schedule. Any request for an extension of the Contract Time related to the discovery
and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8.
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.
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:
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.
The Contractor shall immediately respond in accordance with the SPRP in the event of a spill.
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.
For purposes of this Subparagraph (e), the term “spill” includes any kind of environmental discharge or release.
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.
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.
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.
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.
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:
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;
if the Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Contractor
for the cost of the remediation or correction; or
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.
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
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:
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.
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.
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.
No surety will be accepted by the Owner who is now in default or delinquent on any bonds or who is a party to any litigation against the Owner. All bonds shall be made and executed on
the Owner's standard forms, shall be approved by the Owner, and shall be executed by not less than one corporate surety that is authorized and admitted to do business in the State of
Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current United States Department of the Treasury List of Acceptable Sureties, and is otherwise
acceptable to the Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively in Denton
County, Texas. Each surety shall designate an agent resident in Denton County, Texas to whom any requisite statutory notices may be delivered and on whom service of process may be had
in matters arising out of the suretyship.
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.
The failure of the Contractor to execute the Contract or deliver the required statutory bonds and evidence of insurance within ten (10) days after the Contract is awarded or as soon
thereafter as the Owner can assemble and deliver the Contract shall constitute a material breach of the Contractor’s bid proposal and the Owner may rescind the Contract award and collect
or retain the proceeds of the bid security. By reason of the uncertainty of the market prices or materials and labor, and it being impracticable and difficult to determine accurately
the amount of damages occurring to the Owner by reason of the Contractor's failure to execute and furnish the statutory bonds and to sign the Contract within ten (10) days, the filing
of a bid proposal with the accompanying bid security will be considered as an acceptance of this Subparagraph 11.3(e). In the event the Owner should re-advertise for bids, the defaulting
Contractor shall not be eligible to bid, and the lowest responsible bid obtained in the re-advertisement shall be the bid referred to in this Paragraph.
ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK
12.1 UNCOVERING OF WORK
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.
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
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.
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:
two years after the date of Substantial Completion of the Work or designated portion of the Work;
two years after the date for commencement of warranties established by agreement in connection with partial occupancy under Subparagraph 9.8(a); or
the stipulated duration of any applicable special warranty required by the Contract Documents.
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.
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 two year period also does
not relieve the Contractor from liability for any defects or deficiencies in the Work that may be discovered after the expiration of the two year correction period.
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.
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.
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.
Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents.
Establishment of the one-year time period as described in Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct the Work, and has no relationship
to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the
Contractor’s liability with respect to the Contractor’s obligations other than specifically to correct the Work.
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
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:
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.
A reasonable belief that the progress of the Work being made by the Contractor is insufficient to complete the Work within the specified time.
Failure or refusal of the Contractor to provide sufficient and proper equipment or construction forces to properly execute the Work in a timely manner.
A reasonable belief that the Contractor has abandoned the Work.
A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise financially unable to carry on the Work.
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.
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.
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.
Repeated and flagrant violation of safe working procedures.
The filing by the Contractor of litigation against the Owner prior to completion of the Work.
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:
perform the Work with forces employed by the surety;
with the written consent of the Owner, tender a replacement contractor to take over and perform the Work, in which event the surety shall be responsible for and pay the amount of any
costs required to be incurred for the completion of the Work that are in excess of the amount of funds remaining under the Contract as of the time of the termination; or
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 or actual damages that the Owner may have incurred, including but not limited to additional fees and expenses of the Architect/Engineer and attorneys
fees, as a result of such termination.
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.
The Owner shall not be required to obtain the lowest bid for the Work of completing the Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from the Contract
Sum shall be the actual cost of such Work. In case the Owner’s expense is less than the sum which would have been payable under the Contract, if the same had been completed by the Contractor,
then the Owner may pay to the Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Contractor (or the Surety) shall
not be entitled to any claim for damages or for loss of anticipated profits. In case such expenses for completion shall exceed the amount which would have been payable under the Contract
if the same had been completed by the Contractor, then the Contractor and his Sureties shall pay the amount of the excess to the Owner on notice from the Owner for excess due. When
only a particular part of the Work is being carried on by the Owner by contract or otherwise under the provisions of this Subparagraph, the Contractor shall continue the remainder of
the Work in conformity with the terms of the Contract, and in such manner as not to hinder or interfere with the performance of workmen employed and provided by the Owner.
The right to terminate this Contract for the convenience of the Owner (including but not limited to nonappropriation of funding) is expressly retained by the Owner. In the event of termination
for convenience, the Owner shall deliver at least ten (10) days advance written notice of termination for convenience to the Contractor. Upon the Contractor’s receipt of such written
notice, the Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place.
The Contractor shall then be reimbursed by the Owner in accordance with the terms and provisions of the Contract Documents, not to exceed actual labor costs incurred, materials stored
at the Project site or away from the Project site as approved by the Owner but not yet paid for, plus actual, reasonable, and documented termination charges, if any, paid by the Contractor
in connection with the Work in place which is completed and in conformance with the Contract Documents to the date of termination for convenience. No amount shall ever be due to the
Contractor for lost or anticipated profits.
13.4 TEMPORARY SUSPENSION OF THE WORK
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:
the causes described in Clauses 13.1(a)(1) through (a)(10) above;
where other provisions in the Contract Documents require or permit temporary suspension of the Work;
situations where the Work is threatened by, contributes to, or causes an immediate threat to public health, safety, or security; or
other unforeseen conditions or circumstances.
The Contractor shall immediately resume the temporarily suspended Work when ordered in writing by the Owner to do so. The Owner shall not under any circumstances be liable for any claim
of the Contractor arising from a temporary suspension due to a cause described in Clause (a)(1) above; provided, however, that in the case of a temporary suspension for any of the reasons
described under Clauses (a)(2) through (a)(4), where the Contractor is not a contributing cause of the suspension under one of those Clauses or where the provision of the Contract Documents
in question specifically provides that the suspension is at no cost to the Owner, the Owner will make an equitable adjustment for the following items, provided that a claim is properly
made by the Contractor under Subparagraph 4.3 of these General Conditions:
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;
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
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
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.
This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations of the State of Texas and
the Government of the United States of America. The Contractor shall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable
State and Federal laws, rules and regulations, as amended.
14.2 SUCCESSORS AND ASSIGNS
The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the promises, covenants, terms, conditions, and obligations
contained in the Contract Documents. The Contractor shall not assign, transfer, or convey its interest or rights in the Contract, in part or as a whole, without written consent of the
Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without the Owner’s written consent, the Contractor shall nevertheless remain legally responsible for
all obligations under the Contract Documents. The Owner shall not assign any portion of the Contract Sum due or to become due under this Contract without the written consent of the
Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law.
14.3 WRITTEN NOTICE
Except as otherwise provided in Article 16, any notice, payment, statement, or demand required or permitted to be given under this Contract by either party to the other may be effected
by personal delivery in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an officer, partner, or other designated representative of
either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by written notice in accordance with this
section. Mailed notices shall be deemed communicated as of three (3) days after mailing.
14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER
(a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and remedies available to the Owner under the Contract Documents shall be in addition
to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or made available by law.
(b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under the Contract Documents, nor shall any action or failure to act by the Owner
constitute approval of or acquiescence in a breach of the Contract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement.
14.5 INTEREST
The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt
Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions.
14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER
No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the
sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in
office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the
person, persons, partnership, company, firm, association or corporation contracting with the Owner shall render the Contract involved voidable by the Owner's City Manager or City Council.
14.7 VENUE
This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas.
14.8 INDEPENDENT CONTRACTOR
In performing the Work under this Contract, the relationship between the Owner and the Contractor is that of an independent contractor. The Contractor shall exercise independent judgment
in performing the Work and is solely responsible for setting working hours, scheduling or prioritizing the Work flow and determining the means and methods of performing the Work, subject
only to the requirements of the Contract Documents. No term or provision of this Contract shall be construed as making the Contractor an agent, servant, or employee of the Owner, or
making the Contractor or any of the Contractor’s employees,
agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's compensation, which the Owner provides to its employees.
14.9 NONDISCRIMINATION
As a condition of this Contract, the Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Contractor and
its Subcontractors will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex,
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
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.
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.
Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any employee of the Contractor from the Project who has violated the restrictions of this Article
or any similar State or Federal law, and obtain reimbursement for any expenditures made to the Contractor as a result of the improper offer, agreement to confer, or conferring of a
benefit to a City of Denton employee or official.
ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS
By execution of the Building Construction Services Agreement, the Contractor grants the Owner the right to audit, at the Owner's election, all of the Contractor's records and billings
relating to the performance of the Work under the Contract Documents. The Contractor agrees to retain its Project records for a minimum of five (5) years following completion of the
Work. The Owner agrees that it will exercise the right to audit only at reasonable hours. City may review any and all of the services performed by Contractor under this Contract. Any
payment, settlement, satisfaction, or
release made or provided during the course of performance of this Contract shall be subject to City’s rights as may be disclosed by an audit under this section.
ARTICLE 16 NOTICE OF CONTRACT CLAIM
This Contract is subject to the provisions of the Denton City Code, as amended, relating to requirements for filing a notice of a breach of contract claim against City. Contractor shall
comply with the requirements of this ordinance as a precondition of any litigation relating to this Contract, in addition to all other requirements in this Contract related to claims
and notice of claims.
Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract
shall take precedence over any and all contract documents to the extent of such conflict.
Final negotiated contract
RFP/Bid documents
City’s standard terms and conditions
Purchase order
Supplier terms and conditions
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 comply with the following general specifications, and shall be maintained in compliance with these
general specifications throughout the duration of the Contract, or longer, if so noted:
Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better.
Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions
with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers.
That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately
to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability.
Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers.
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:
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.
[ ] 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.
[X] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors
as their interests may appear.
[ ] Environmental Liability Insurance
Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract.
[ ] Riggers Insurance
The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be provided by a Rigger’s Liability endorsement on the existing CGL coverage; through and Installation
Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger’s Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion
of this coverage should be written on a “blanket” basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds.
Limits of not less than $ each occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract,
that requirement will be described in the "Specific Conditions" of the contract specifications.
ATTACHMENT A
[X] Workers’ Compensation Coverage for Building or Construction Projects for Governmental Entities
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.
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.
The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract.
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.
The contractor shall obtain from each person providing services on a project, and
provide to the governmental entity:
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
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.
The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter.
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.
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.
The contractor shall contractually require each person with whom it contracts to provide services on a project, to:
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;
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;
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;
obtain from each other person with whom it contracts, and provide to the contractor:
a certificate of coverage, prior to the other person beginning work on the project; and
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;
retain all required certificates of coverage on file for the duration of the project and for one year thereafter;
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
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.
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.
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.
APPENDIX B – SAMPLE CONTRACT
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND ________________
(RFP ####)
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:
Special Terms and Conditions (Exhibit “A”);
City of Denton Request for Proposal # #### (Exhibit “B” on file at Office of Purchasing Agent)
General Provisions-Standard Terms and Conditions (Exhibit “C”);
Payment and Performance Bond Requirements (Exhibit “D”);
Insurance Requirements (Exhibit “E”);
Certificate of Interested Parties Electronic Filing (Exhibit “F”);
Contractor’s Proposal (Exhibit “G");
House Bill 89 Verification (Exhibit “H”)
Senate Bill 252 Certification (Exhibit “I”)
Form CIQ – Conflict of Interest Questionnaire (Exhibit "J")
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.”
The parties agree to transact business electronically. Any statutory requirements that certain terms be in writing will be satisfied using electronic documents and signing. Electronic
signing of this document will be deemed an original for all legal purposes.
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written.
CONTRACTOR
BY: ______________________________
AUTHORIZED SIGNATURE
Date: _______________________________
Name:______________________________
Title: _______________________________
___________________________________ PHONE NUMBER
___________________________________
EMAIL ADDRESS
___________________________________
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: _________________________
TODD HILEMAN
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: _________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
By: _________________________________
EXHIBIT D
PAYMENT AND PERFORMANCE BOND REQUIREMENTS
Contractor will be required to furnish original performance and payment bonds for one hundred (100%) percent of the total submission price before work is to commence. The Contractor
shall assume all costs in increasing the bond limits if change orders are formally approved. Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as amended,
from a surety licensed to do business in the State of Texas. The City, at its option, may waive the payment and performance bond requirements for projects of less than $50,000.
Bond forms are attached and shall be returned upon notice of contract award by the City. Bonds should be forwarded to the City of Denton within fourteen (14) calendar days from contract
award. This contract is not fully executed until payment and performance bonds are received and accepted by the City. Upon approval, a purchase order will be issued.
Exhibit F
Certificate of Interested Parties Electronic Filing
In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the
Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring
the business entity to file Form 1295 electronically with the Commission.
Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908.
The contractor shall:
Log onto the State Ethics Commission Website at : https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm
Register utilizing the tutorial provided by the State
Print a copy of the completed Form 1295
Enter the Certificate Number on page 2 of this contract.
Sign and notarize the Form 1295
Email the notarized form to purchasing@cityofdenton.com with the contract number in the subject line. (EX: Contract 1234 – Form 1295)
The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics
Commission’s website within seven business days.
EXHIBIT G
CONTRACTORS PROPOSAL
Exhibit H
House Bill 89 - Government Code 2270
VERIFICATION
I, _______________________________________________, the undersigned representative of ______________________________Company or Business name (hereafter referred to as company), being
an adult over the age of eighteen (18) years of age, verify that the company named-above, under the provisions of Subtitle F, Title 10, Government Code Chapter 2270:
Does not boycott Israel currently; and
Will not boycott Israel during the term of the contract the above-named
Company, business or individual with City of Denton.
Pursuant to Section 2270.001, Texas Government Code:
“Boycott Israel” means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial
relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business
purposes; and
“Company” means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited
liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date
Exhibit I
Senate Bill 252 -Government Code 2252
CERTIFICATION
I, ______________________________________________, the undersigned representative of ________________________________________________ (Company or business name) being an adult over
the age of eighteen (18) years of age, pursuant to Texas Government Code, Chapter 2252, Section 2252.152 and Section 2252.153, certify that the company named above is not listed on
the website of the Comptroller of the State of Texas concerning the listing of companies that are identified under Section 806.051, Section 807.051 or Section 2253.153. I further certify
that should the above-named company enter into a contract that is on said listing of companies on the website of the Comptroller of the State of Texas which do business with Iran, Sudan
or any Foreign Terrorist Organization, I will immediately notify the City of Denton’s Materials Management Department.
___________________________________
Name of Company Representative (Print)
________________________________
Signature of Company Representative
_________________________________
Date