HomeMy WebLinkAbout2016-020ORDINANCE NO, 2016-020
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC
WORKS CONTRACT FOR THE RENOVATION OF AN EXISTING PRE-ENGINEERED
METAL BUILDING LOCATED AT 651 SOUTH MAYHILL ROAD FOR THE CITY OF
DENTON SOLID WASTE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5866-AWARDED TO LINKS
CONSTRUCTION, LLP IN THE AMOUNT OF $522,743).
WHEREAS, the City has solicited, received and tabulated competitive proposals for the
construction of public works or improvements in accordance with the procedures of State law and
City ordinances; and
WHEREAS, the City Manager or a designated employee has received and recommended that
the herein described proposal is the highest scored proposal for the construction of the public works
or improvements described in the Request for Proposal (RFP) document and plans and specifications
therein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The following competitive proposal for the construction of public works or
improvements, as described in the "Request for Proposals" or plans and specifications on file in the
Office of the City's Purchasing Agent filed according to the RFP number assigned hereto, are hereby
accepted and approved:
RFP
mMOUNT
NUMBER CONTRACTOR A
5866 Links Construction, LLP $522,743
SECTION 2. The acceptance and approval of the above competitive proposals shall not
constitute a contract between the City and the person submitting the proposal for construction of
such public works or improvements herein accepted and approved, until such person shall comply
with all requirements specified in the Notice to Proposers including the timely execution of a written
contract and furnishing of performance and payment bonds, and insurance certificate after
notification of the award.
SECTION 3. The City Manager is hereby authorized to execute all necessary written
contracts for the performance of the construction of the public works or improvements in accordance
with the proposals accepted and approved herein, provided that such contracts are made in
accordance with the Notice to Proposers and Request for Proposals, and documents relating thereto
specifying the terms, conditions, plans and specifications, standards, quantities and specified sums
contained therein.
SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of Denton
under RFP 5866 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 5. Upon acceptance and approval of the above competitive proposals and the
execution of contracts for the public works and improvements as authorized herein, the City Council
hereby authorizes the expenditure of funds in the manner and in the amount as specified in such
approved proposals and authorized contracts executed pursuant thereto.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: 1�_
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
day of 2016.,
..
CHRI-
.........
RIS WATTS, MAYOR
4
STATE OF TEXAS
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22 FEB 2016 Am 11: 16
CONTRACT AGREEMENT #5866
BY AND UETWEEN
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THIS CONTRACT is made and entered into this IND d
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a limited liability company, whose address is 525 it -1
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hereinafter referred to as "Contractorand the CITY OF DENTON, TEXA
a Texas Municipal Corporation and Home -Rule City, hereinafter referred to as to be effective
upon approval of the Denton City Council and the subsequent execution of this Contract by the Dento
City Manager or his duly authorized designee. I
WITHNESSETH: That fbr and in consideration of the payments, covenants and agreements
contained herein, and under the conditions expressed in the bonds attached hereto, Contractor agrees
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in the amount of $22,7430 and for the mutual benerits to be obtained hereby, the parties agree as
fbilows: I
Contractor shall provide construction services in accordance with the City's jjfj2M§k and the
Contractor's proposal in response thereto, a copy of which is on file at the office of Purchasing Agent
and incorporated herein for all purposes as "Exhibit A — Exhibit I". The Contract consists of this
written agreement and the fbIlowing items which are attached hereto and incorporated herein by
reference:
(a) Contractor Response to RFP#5783 - Pricing (Exhibit "A")
(b) Negotiated Scope of Work and Services and Technical Requirements, Drawings, Graphs,
Charts, etc. (Exhibit 11B'j; (Technical Specifications and Drawings are available at
the Office of the Purchasing Manager and ai
lualwgeluep t-PRUha gill -d istri bil I lon- Celli I el-fluds-a nd-oromla Isle ii ri-en t - bids�
(c) Contractor Payments and Performance Milestones (Exhibit "C");
(d) City of Denton Standard Term and Conditions and Contractual Requirements (Exhibit
"D");
(c) Speciaf Terms and Conditions (Exhibit "E");
(f) Payment and Perforrimnce Bonds (Exhibit "F");
(g) Insurance Requirements and Documents from Contractor (Exhibit "G");
(h) Contractor's Business Information (Exhibit "H");
0) Contractor Response to RFP - Conflict of Interest Questionnaire (Exhibit 11111);
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wrftten Contract,then t documents in order in h they are
abovegy These documentsrefened to coflectively as 4Contract Docunwnts."'
IN WITNESS WHEREOF, the parties of these pmsents have exocuted th6 agmment in the yew
written.and day fka above
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2, and the Drawings in Exhibit 3 of this RFP. The proposal submission shall accurately describe the
Proposer's understanding of the objectives and scope of the requested construction and provide an outline
of the process to complete the requirements of the project.
Special ice and Additionalire a ):
environment1. Additional safety precautions shall be instituted by the awarded contractor, as the work
be and employees may 1' present, and work
must be coordinated with the owner.
2. The Contractor 1 1' rcspopsiblo for spoilremovals,1f :,:1excesssoil that ViR reluj
rem"al.
Payment,grocess,ing: The City review, inspection, and processing procedures for invoices
ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which
call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such
payment, will be considered only if, in the opinion of the Purchasing Manager, the review,
inspection, and processing procedures can be completed as specified. It is the *intention of the City
of Denton to make payment within thirty days after receipt of valid invoices for which items or
services have been received unless unusual circumstances arise. The 30 day processing period for
invoices will begin on the date the invoice is received or the date the items or services are received,
whichever is later.
Direct deposit for payments: ' Contractors are encouraged to arrange for receiving payments
through direct deposit. Infonnation regarding direct deposit payments is available from the City of
Denton Purchasing website: wwwAcotorip ch rsing.com.
Invoices: Invoices shall resent directly to the City of Denton Accounts Payable Department, 215 E
McKinney St, Denton, TX, 76201-4299 with a copy to the attention of Herman Lawson, Project
Manager, City of Denton Facilities Department, 215 E. McKinney Street, Denton, TX 76205. The
copy may also be emailed to Herman Lawson at herinapJaWsOnti 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 he processed. No payments
shall be made on invoices not listing a Purchase Order Number. Invoices for partial payments
on construction projects should normally be presented for payment within the first five days of the
month, and submitted on the AIA Pay Application Form.
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.
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A. Upon presentation of valid payment requests i1voices, which should be within the first week of
each month, the Owner shall make partial payments to the Contractor for construction
accomplished during the preceding calendar month on the basis of completed construction
certified to by the Contractor and approved by the Owner and Architect/Engineer solely for the
purposes of payment: Provided, however, that such approval shall not be deemed approval of the
workmanship or materials. Only ninety-five percent (95%) of each payment request approved
during the construction of the project shall be paid by the Owner to the Contractor prior to
completion of the project. Upon the approval by the Owner of the Contractor's "Final Invoice
for Payment" showing the total cost of the construction performed, the Owner shall make
payment to the Contractor of all amounts to which the Contractor shall be entitled there under
which shall not have been paid: Provided, however, that such final payment shall be made not
later than thirty (30) days after the date of completion of construction of the project, as specified
in the Final Invoice for Payment, unless withheld because of the fault of the Contractor.
B. The Contractor shall be paid on the basis of the percentage of the work actually completed for
each construction item. The total amount paid for periodic billings shall not exceed the
maximum contract price for the construction of the project as set forth in the contract, unless
such excess shall have been approved by the Owner, and Owner's Representative, and in writing
by the Purchasing Agent as part of a change order.
C. No payment shall be due while the Contractor is in default in respect of any of the provisions of
this contract, and the Owner may withhold from the Contractor the amount of any claim by any
third party against either the Contractor or the Owner based upon an alleged failure of the
Contractor to perform the work hereunder in accordance with the provisions of this contract.
This includes alleged failure of the Contractor to make payments to subcontractors.
a. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR:
Release of Liens and Certificate of Contractor shall be accomplished in accordance with Article 5.3
of the Standard Terms and Conditions.
5. PAYMENTS TO MATERIAL -MEN AND SUBCONTRACTORS:
The Contractor shall pay each materialman, and each subcontractor, if any, not -later than five (5)
days'after receipt of any payment from the Owner, the amount thereof allowed the Contractor for
and on account of materials furnished or construction performed by each materialman or each
subcontractor.
6. REMEDIES:
A. Completion of Contractor's Default
If default shall be made by the Contractor or by any subcontractor in the perfon-nance of any of
the terms of this proposal, the Owner, without in any manner limiting its legal and equitable
remedies in the circumstances, may serve upon the Contractor and the Surety or Sureties upon
the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to
be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the
Contractor such default shall be corrected or arrangements for the correction thereof satisfactory
to the Owner and/or Engineer shall be made by the Contractor or its Surety or Sureties, the
Owner may take over the construction of the project and prosecute the same to completion by
contract or otherwise for the account and at the expense of the Contractor, and the Contractor
and its Surety or Sureties shall be liable to the Owner for any cost or expense in excess of the
contract price occasioned thereby. In such event the Owner may take possession'of and utilize,
in completing the construction of the project, any materials, tools, supplies, appliances, and plant
belonging to the Contractor or any of its subcontractors, which may be situated at the site of the
project. The Owner in such contingency may exercise any rights, claims or demands which the
Contractor may have against third persons in connection with this contract and for such purpose
the Contractor does hereby assign, transfer and set over unto the Owner all such rights claims
and demands.
B. Liquidated Damages
The time of the completion of construction of the project is of the essence of the contract.
Should the Contractor neglect, refuse or fail to complete the construction within the time herein
agreed upon, after giving effect to extensions of time, if any, herein provided, then, in that event
and in view of the difficulty of estimating with exactness damages caused by such delay, the
Owner shall have the right to deduct from and retain out of such money which may be then due
or which may become due and payable to the Contractor the surn of FIVE HUNDRED
DOLLARS ( .500.0per day for each and everyday, including weekends, that such
construction is delayed on its completion beyond the specified time, as liquidated damages and
N. P.M. 140 'A V W al, W N.
.tr claimed as liquidated damages was computed,
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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
herein agreed upon.
GENERAL DEFINITIONS
1.1 The following definitions apply throughout these General Conditions and to the other Contract
Documents:
a) THE CONTRACT DOCUMENTS
The Contract Documents consist of the formal Building Construction Services Agreement
between the Owner and the Contractor, these General Conditions and other supplementary
conditions included by special provisions or addenda, drawings, specifications, addenda issued
prior to execution of the Contract, other documents listed in the Contract, and Amendments
issued after execution of the Contract. For purposes of these General Conditions, an Amendment
is:
(1) a written Supplemental Agreement to the Contract signed by authorized representatives of
both parties;
(2) a Change Order, including Change Orders signed only by the Owner as described in
Subparagraph 7.1(b) and Subparagraph 7. 1 (e); or
(3) a written order for a minor change in the Work issued by the Architect/Engineer as
described in Paragraph 7.3.
The Contract Documents also include bid documents such as the Owner's Instructions to
Bidders, sample forms, the Conti -actor's Bid Proposal and portions of addenda relating to any of
these documents, and any other documents,, exhibits or attachments specifically enumerated in
the Building Construction Services Agreement, but specifically exclude geotechnical and
subsurface reports that the Owner may have provided to the Contractor.
b) THE CONTRACT
The Contract Documents, as defined in Paragraph 1. 1, are expressly incorporated into and made
a part of the formal Building Construction Services Agreement between the Owner and the
Contractor by reference in this Paragraph and Paragraph 1.1 (which docurnents, are sometimes
also referred to collectively in these General Conditions as the "Contract"). The Contract
Documents represent the entire and integrated agreement between the Owner and the Contractor
and supersede all prior negotiations, representations or agreements, either written or oral. The
terms and conditions of the Contract Documents may be changed only by an Amendment. The
Contract Documents shall not be construed to create a contractual relationship of any kind:
(1) between the Architect/Engineer and Contractor;
(2) between the Owner and a Subcontractor or Sub -subcontractor; or
(3) between any persons or entities other than the Owner and Contractor.
The Architect/Engineer shall, however, be entitled to perfon-nance and enforcement of
obligations under the Contract Documents intended to facilitate performance of the
Architect/Engineer's duties.
c) THE WORK
The term "Work" means the construction and services required by the Contract Documents,
whether completed or partially completed, and includes all labor, materials, equipment, and
services provided or to be provided by the Contractor, or any Subcontractors, Sub -
subcontractors, material suppliers, or any other entity for whom the Contractor is responsible, to
fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project.
d) THE PROJECT
The Project is the total construction more particularly described in the Building Construction
Services Agreement, of which the Work performed under the Contract Documents may be the
whole or apart of the Project and which may include construction by the Owner or by separate
contractors. All references in these General Conditions to or concerning the Work or the site of
the Work will use the term "Project," notwithstanding that the Work may only be a part of the
Project.
e) THE DRAWINGS
The Drawings (also known as the "Plans") are the graphic and pictorial portions of the Contract
Documents, wherever located and whenever issued, showing the design, location and dimensions
of the Work, generally including plans, elevations, sections, details, schedules, and diagrams.
f) THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written
requirements for materials, equipment, construction systems, standards, and workmanship for the
Work, performance of related services, and other technical requirements.
g) THE PROJECT ALANUAL
The Project Manual is the volume or volumes which contain the bidding requirements, sample
forms, General Conditions for Building Construction, special provisions, and Specifications, The
Project Manual may be modified by written addendums issued by the Owner during bidding, in
which case the written addendums become a part of the Project Manual upon their issuance,
unless otherwise indicated by the Owner in writing.
h) ALTERNATE
An Alternate is a variation in the Work on which the Owner requires a price separate from the
City Building General Conditions Base Proposal. If an Alternate is accepted by the Owner, the
variation will becorne 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 arnount quoted. If
an alternate is accepted by the Owner, and later deleted prior to any Work under the alternate
being performed or materials delivered to the Project site, the Owner will be entitled to a credit
in the full value of the alternate as priced in the Contractor's Bid.
i) BASE Proposal
The Base Proposal is the price quoted for the Work before Alternates are considered.
j) HAZARDOUS SUBSTANCE
The term Hazardous Substance is defined to include the following:
(1) any asbestos or any material which contains any hydrated mineral silicate, including
chrysolite, amosite, crocidolite, trernolite, anthophylite or actinolite, whether friable or
non -friable;
(2) any polychlorinated biplienyls ("PCBs"), or PCB -containing materials, or fluids;
(3) radon;
(4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid,
liquid or gaseous waste;
(5) any pollutant or contaminant (including but not limited to petroleum, petroleum
hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas
exploration or production waste, any natural gas, synthetic gas or any mixture thereof,
lead, or other toxic metals) which in its condition, concentration or area of release could
have a significant effect on human health, the environment, or natural resources;
(6) any substance that, whether by its nature or its use, is subject to regulation or requires
environmental investigation, monitoring, or remediation under any federal, state, or local
environmental laws, rules, or regulations;
(7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(1) (including
those defined by Section 9001(1) of the 1984 Hazardous and Solid Waste Amendments to
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Texas
Water Code Annotated Section 26.344; and Title 30 of the Texas Administrative Code
Sections 334.3 and 334.4), whether empty, filled or partially filled with any substance, and
(8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and
toxic substance as those or similar terms are defined under any federal, state, or local
environmental laws, rules, or regulations.
k) OTHER DEFINMONS
As used in the Contract Documents, the following additional terms have the following meanings:
(1) "provide" means to furnish, install, fabricate, deliver and erect, including all services,
materials, appurtenances and other expenses to complete in place, ready for operation or
use;
(2) "shall" means the action of the party to which reference is being made is mandatory;
(3) "as required" means as prescribed in the Contract Documents; and
(4) "as necessary" means all action essential or needed to complete the work in accordance
with the Contract Documents and applicable laws, ordinances, construction codes, and
regulations.
(a) The Building Construction Services Agreement shall be signed by duly authorized
representatives of the Owner and Contractor as provided in the Agreement.
(b) Execution of the Building Construction Services Agreement by the Contractor is a representation
that the Contractor has visited the site, become familiar with local conditions, including
subsurface conditions as described and identified in the Geotechnical Report, under which the
Work is to be perfonned and correlated personal observations with requirements of the Contract
Documents.
(c) The intentof 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 requiral by all; performance by the Contractor
shall be required only to the extent consistent with the Contract Documents and reasonably
inferable from them as being necessary to produce the intended results.
(d) Organization of the Specifications into divisions, sections, and articles, and arrangement of
Drawings shall not control the Contractor in dividing the Work among Subcontractors or in
establishing the extent of Work to be performed by any trade.
(e) Unless otherwise stated in the Contract Documents, words which have well-known technical or
construction industry meanings are used in the Contract Documents in accordance with such
recognized meanings.
(f) The Drawings and Specifications are intended to agree with one another, and Work called inr 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 ofa
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
ContractDocuments, the Contractor shall not perform such Work without having obtained a
clarification from the Architect/Engineer and resolution by the Owner. The Owner's decision as
to the appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings or
the Specifications disagree within themselves or with each other; the Base Bid will be based on
the most expensive combination of quality and quantity of Work indicated.
(g) Deviations from Contract Documents shall be made only after written approval is obtained
fi-om Architect/Engineer and Owner, as provided in Article 7.
(h) The intention of the Contract Documents is to include all materials, labor, tools, equipment,
utilities, appliances, accessories, services, transportation, and supervision required to
completely perform the fabrication, erection and execution of the Work in its final position.
(i) The most recently issued Drawing or Specification takes precedence over previous issues of
the same Drawing or Specification. In the event of a conflict, the order of precedence of
uiterpretation of the Contract Documents is as follows:
(1) Amendments (see Paragraph 7.2 for order of precedence between Amendments);
(2) the Building Construction Services Agreement;
(3) addenda, with those addenda of later date having precedence over those of an earlier date;
(4) the Supplementary General Conditions and Special Provisions, if any;
(5) the General Conditions for Building Construction;
(6) the Specifications and Drawings.
1#
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 bii
returned to the Owner upon request at the cornpletion of the Work.
1.4 CAPITALIZATION
Terms capitalized in these General Conditions include those which are:
(1) specifically defined in these General Conditions (except the tern -is defined in Subparagraph
1. 10), which terms are of common grammatical usage and are not normally capitalized);
(2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and
Clauses;
(3) the titles of other documents published or used by the Owner as manuals or official policy
statements; or
11, , 1 1, 11 1 111 !111 11111 111
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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 ten-n "Owner" means the Owner or the Owner's authorized
representatives.
(a) The Owner shall furnish the most recent survey describing the physical characteristics, legal
limits, utility locations, and a permanent benchmark for the site of the Project. The Owner shall
also furnish any environmental site assessments that may have been given to the Owner or
conducted for the property upon which the Project is to be constructed. THIS INFORMATION
IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO MAKE DISCLOSURE OF
THIS MATERIAL AND FOR NO OTHER PURPOSE. BY FURNISHING THIS MATERIAL,
THE OWNER DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS ACCURACY
EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY,
AND THE OWNER SHALL HAVE NO LIABILITY FOR THIS MATERIAL.
(b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall
secure and pay for necessary approvals, easements, assessments, and charges required for
construction, use, or occupancy of permanent structures or for permanent changes in existing
facilities.
(c) Information or services under the Owner's control shall be furnished by the Owner with
reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent upon
the Contractor to identify, establish, and maintain a current schedule of latest dates for submittal
and approval, as required in Paragraph 3.10, including when such information or services must
be delivered. If Owner delivers the information or services to the Contractor as scheduled and
Contractor is not prepared to accept or act on such information or services, then Contractor shall
reimburse Owner for all extra costs incurred of holding, storage, or retention, including
rcdcliverics by the Owner to comply with the current schedule.
(d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished
electronic copies of the Drawings and Specifications for bid purposes and one hard copy
approved by Building Inspections upon execution of the Contract. Contractor may obtain
additional copies by paying the cost of additional printing or reproduction.
(e) The obligations described above are in addition to other duties and responsibilities of the Owner
enumerated in the Contract Documents and especially those in respect to Article 6 (Construction
by Owner or by Separate Contractors), Article 9 (Payments and Completion), and Article 11
(Insurance and Bonds).
The Owner shall forward all instructions to the Contractor through the Architect/Engineer,
except for the Owner's Notice to Proceed and the Owner's decision to carry out Work as
described in Paragraph 2.4.
(g) The Owner's employees, agents, and consultants may be present at the Project site during
performance of the Work to assist the Architect/Engineer in the performance of the
Architect/Engineer's duties and to verify the Contractor's record of the number of workmen
employed on the Work, their occupational classification, the time each is engaged in the Work,
the equipment used in the performance of the Work, and for purpose of verification of
Contractor's Applications for Payment,
2.3 OWNER'S RIGHT TO STOP THE WORK
If the Contractor falls 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 pail of the Owner to exercise this right for the benefit of the Contractor or any
other pet -son 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 twenty (20) 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 expensesmade necessary by the
fiailure 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 Conti -act Sum whatsoever for this reason.
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 terill "Contractor" means the Contractor or the Contractor's authorized employees or
representatives.
Pill 11211111151 M' �1@1
(a) The Contractor shall carefully check, study, and compare the Contract Documents with each
other and shall at once report to the Architect/Engincer 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 known or reasonably discovered 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 pails to
coordinate or fit properly into final position as a result of Contractor's failure to give notice of
and obtain a clarification or resolution of any error, omission, conflict, or discrepancy, without
any right to any increase to the Contract Sum or Contract Time.
(b) The Contractor shall perforril the Work in accordance with the Contract Documents and
submittals approved pursuant to Paragraph 3.12.
(a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and
attention. The Contractor shall be solely responsible for and have control over construction
means, methods, techniques, sequencesl and procedures and for coordinating all portions of the
Work, unless the Contract Documents set forth specific instructions concerning these matters.
(b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's
employees, Subcontractors, Sub -subcontractors, and their respective agents and employees, and
any other persons performing portions of the Work under a subcontract with the Contractor or
with any Subcontractor, and all other persons or entities for which the Contractor is legally
responsible. All labor shall be performed by mechanics that are trained and skilled in their
respective trades. Standards of work required throughout shall be of a quality that will bring only
first class results. Mechanics whose work is unsatisfactory, or who are considered careless,
incompetent, unskilled, or otherwise objectionable shall be dismissed promptly from the Work
and immediately replaced with competent, skilled personnel. Any part of the Work adversely
affected by the acts or omissions of incompetent, unskilled, careless, or objectionable personnel
shall be immediately corrected by the Contractor.
(c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the
Contract Documents either by activities or duties of the Architect/Engineer in the
Architect/Engineer's administration of the Contract, or by tests, inspections, or approvals
required or performed by persons other than the Contractor.
(d) The Contractor shall be responsible for inspection of portions of Work already performed under
this Contract to deten-nine that such portions are in proper condition to receive subsequent Work,
The Contractor's responsibility under this paragraph will not in any way eliminate the
Architect/Engineer's responsibility to the Owner under the Architect/Engineer/Owner
Agreement.
(e) Any Contractor, Subcontractor, Sub -subcontractor, or separate contractor who commences Work
over, in, or under any surface prepared by the Owner or by any other contractor, subcontractor,
sub -subcontractor or separate contractor without the Contractor having given written notice to
the Architect/Engineer of the existence of any known or reasonably discovered 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 ass
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 afler notice as provided above may be rejected and replacement
required, without any increase to the Contract Sum or Contract Time,
(f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing
basis by the Contractor. The Contractor is solely responsible for any errors made in establishing
or maintaining proper grades, lines, levels, or benchmarks. Each Contractor for his own Work
shall verify all grades, lines, levels, and diensions as indicated on Drawings. He shall report
any errors, omissions, com
conflicts, or inconsistencies to Architect/Enginecr before commencing any
Work affected by these conditions. Contractor shall establish and safeguard benchmarks in at
ieast two widely separated 'places and, as Work progresses, establish benchmarks at each level
and lay out partitions on rough floor in exact locations as guides to all trades. The Contractor
shall, from the permanent benchmark provided by the Owner, establish and maintain adequate
horizontal and vertical control.
3.4 LABOR AND'MATERIALS
(a) Except as is otherwise specifically provided in the Contract Documents as being the
responsibility of the Owner, the Contractor shall provide and pay for labor, materials, equipment,
tools, construction equipment and machinery, water, heat, utilities, transportation, and other
facilities and services necessary for proper execution and completion of the Work, whether
temporary or pennanent and whether or not incorporated or to be incorporated in the Work.
(b) The Contractor shall enforce strict discipline and good order among the Contractor's employees
and other persons carrying out the Contract. The Contractor shall not permit employment of unfit
persons or persons not skilled in�tasks assigned to them.
(c) The Contractor shall give preference, when qualified labor is available to perform the Work to
.which the employment relates, to all labor hired for the Project in the following order:
(1) to bona fide residents of the City of Denton, Texas;
(2) to bona fide residents of the County of Denton, Texas;
(3) to bona fide residents of the State of Texas;
(4) to bona tide residents of the United States.
3.5 WARRANTY
(a) General Warranty. The Contractor warrants to the Owner that all Work shall be accomplished in
a good and workmanlike, manner and that all materials and equipment furnished under the
Contract will be of good quality, new (unless otherwise specified), and ti•ce frorn faults or
defects, and thatthe 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 nonnal usage. if
required by the Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the
kind and quality of materials and equipment. THE GENERAL WARRANTY PROVIDED IN
THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT LIMIT OR DISCLAIM
ANY OTHER WARRANTY OR REMEDY REQUIRED OR ,PROVIDED BY LAW OR THE
CONTRACT DOCUMENTS AND SUCH WARRANTY SHALL REQUIRE THE
CONTRACTOR TO REPLACE DEFECTIVE MATERIALS AND RE -EXECUTE
DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER TO THE CONTRACTOR
WITHIN A PERIOD OF TWO (2) YEARS AFTER SUBSTANTIAL COMPLETION OF THE
ENTIRE WORK OR, IF A LATENT DEFECT, WITHIN TWO (2) YEARS AFTER
DISCOVERY BY THE OWNER OF THE LATENT DEFECT.
(b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent
to final payment, the terms and conditions of all special warranties required under the .Contract
Documents.
3.6 TAXES
The Owner qualifies for exemption ftorn 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.
,1-7—P-KVjLLT
.S,,.EVRR-1 #W.FL
(a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton Building
Permit. The Contractor and Subcontractors will apply and arrange for the issuance of all other
required permits, and will not be required to pay a fee for any City of Denton pen -nits required
for the Project. The Owner will pay all service extension charges, including tap fees, assessed by
the Water Utilities Department.
(b) The Contractor shall comply with and give notices required by laws, ordinances, rules,
regulations, and lawftil orders of governmental entities or agencies applying to perforl-nance of
the Work.
(c) Except as provided in Subparagraph (d) below, it is not the Contractor's responsibility to
ascertain that the Contract Documents are in accordance with applicable laws, ordinances,
construction codes, and rules and regulations. However, if the Contractor observes that portions
of the Contract Documents are at variance with applicable laws, ordinances, construction codes,
rules or regulations, the Contractor shall promptly notify the Architect/Engineer and the Owner
in writing, and necessary changes shall be accomplished by appropriate Amendment.
(d) If the Conti -actor 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 maybe adversely affected by the
corrective work.
0 GXV 9 W11 A �-h I �
(a) The Contractor shall include in the Contract Sum all allowances stated in the Contract
Documents. Items covered by allowances shall be supplied for the amounts identified in the
Contract and by persons or entities as the Owner may direct, but the Contractor shall not be
required to employ persons or entities against which the Contractor makes reasonable objection.
(b) Unless otherwise provided in the Contract Documents:
(1) materials and equipment under an allowance shall be selected promptly by the Owner to
avoid delay in the Work;
(2) the amount of each allowance shall cover the cost to the Contractor of materials and
equipment delivered at the site less all exempted taxes and applicable trade discounts;
(3) the amount of each allowance includes the Contractor's costs for unloading and handling at
the site, labor, 'installation costs', overhead, profit, and other expenses contemplated for stated
allowance Work;
(4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted
accordingly by Change Order. The arnount of the Change Order shall reflect:
(i) the difference between actual costs and the allowances under Clause (b) (2); and
(ii) changes in Contractor's costs under Clause (b) (3);
(5) the Owner retains the right to review and approve Subcontractors selected by the Contractor
to perform work activities covered by allowances.
3.9 SUPERINTENDENT
The Contractor shall employ a competent superintendent and necessary assistants who shall be in
attendance at the Project site during perfon-nance 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 tune and the Contractor will replace said superintendent
at the Owner's direction.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
(a) The Contractor shall, immediately after award of the Contract and before submittal of the first
Application for Payment, prepare and submit the construction schedule for the
Architect/Engineer's and Owner's information, review, and approval in accordance with the
following provisions:
(1) Unless otherwise approved in writing by the Owner, the construction schedule shall not
exceed the Contract Time limits currently in effect under the Contract Documents and shall
provide for expeditious and practicable execution of the Work.
(2) The construction schedule shall include all shop drawing and submittal data requirements,
indicating for each:
(i) the latest date to be submitted by the Contractor; and
(ii) the latest date for approval by the Architect/Engineer.
(3) The construction schedule shall be in the form of a critical path management schedule, and
shall indicate each critical task (the "predecessor") of all the major construction activities of
the Work in a logical and sequential order (the "project network") which requires completion
prior to commencement of the task next following (the "successor"). Each task shall be
identified with:
(i) actual work time, exclusive of slack time, for accomplishment;
(ii) the latest start date;
(iii) the latest finish date;
(1v) 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, ffillowing 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.
ion schRFu_[ew_fff_afs6be revised to 7sffo_w__Tffeef o change orders and other
events on Contract Time. No request foontract 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
in,tends 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
(b) The Contractor shall also prepare and keep current, for the Architect/Engineer's approval,
a schedule of submittals which is coordinated with the Contractor's construction schedule
and allows the Architect/Engineer reasonable time to review submittals.
(c) The Contractor shall conform to the most recent schedules approved as to Ibnn by the
Architect/Engineer and the Owner. Any subsequent revisions made by the Contractor to
schedules in effect shall conform to the provisions of Subparagraph 3.10(a)
(d) If the Work falls behind the approved construction schedule, the Contractor shall take
such steps as may be necessary to improve his progress, and the Architect/Engineer and
the Owner may require him to increase the number of shifts, overtime operations, days of
work, or the amount of construction plant, and to submit for approval revised schedules
in the form required above in order to demonstrate the manner in which the agreed rate of
progress will be regained, all without additional cost to the Owner.
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 sinlilar required submittals. These shall be available to
the Architect/Engineer and shall be delivered to the Architect/Engineer for submittal to the Owner
upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
(a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the
Work by the Contractor or a Subcontractor, Sub -subcontractor, manufacturer, supplier, or
distributor to illustrate some portion of the Work.
(b) Product Data are illustrations, standard schedules, performance charts, instructions, brochures,
diagrams, and other information furnished by the Contractor to illustrate materials or equipment
for some portion of the Work.
(c) Samples are physical examples which illustrate materials, equipment, or workmanship and
establish standards by which the Work will be judged.
(d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents, The
purpose of their submittal is to demonstrate for those portions of the Work for which submittals
are required the way the Contractor proposes to conform to the information given and the design
concept expressed in the Contract Documents, Review by the Architect/Engincer is subject to the
limitations of Paragraph 4.2.
(c) 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 maybe 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/Enginccr.
(g) By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the
Contractor represents that the Contractor has determined and verified materials, field
measurements, and related field construction critefia, or will do so, and has checked and
coordinated the information contained within submittals with the requirements of the Work and
of the Contract Documents. The Contractor's attention is directed to Paragraph 3 ).2 of these
General Conditions and the requirements stated in that Paragraph.
(h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes,
additions, deletions or omissions from requirements of the Contract Documents by the
Architect/Engineer's approval of Shop Drawings, Product Data, Samples, or similar submittals
unless the Contractor has specifically informed the Architect/Engineer in writing of such
substitutions, changes, additions, deletions, omissions, or deviations involved in the submittal at
the time of submittal and the Architect/Engineer, subject to a formal Change Order signed by the
Owner, Architect/Engineer and Contractor, has given written approval to the specific
substitutions, changes, additions, deletions, omissions, or deviations. The Contractor shall not be
relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or
similar submittals by the Arch itect/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 airy
and all accornimdations associated with such substitutions, changes, additions, deletions,
omissions, or deviations to the requirements, of the Contract Documents.
(i) The Contractor shall direct specific attention, in `writing or on resubmitted Shop Drawings,
Product Data, Samples, or similar submittals, to additional revisions other than those requested
by the Architect/Engineer on previous submittals. In the absence of such written notice, the
Architect/Engineer's approval of a resubmission shall not apply to the additional revisions not
requested.
(j) Informational submittals upon which the Architect/Engineer is not expected to take responsive
action may be so ;identified in the Contract Documents.
(k) Wlien 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 T E 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 encurnber the Project site with
materials or equipment.
3.14 CUTTING AND PATCHING
(a) The Contractor shall be responsible for; cutting, fitting or patching required to complete the
Work or to make its parts fit together properly.
(b) The Contractor shall not damage or endanger aportion of the Work or any fully or partially
completed construction of the Owner or separate contractors by cutting, patching, or otherwise
altering the construction, or by excavating. The Contractor shall not cut or otherwise alter the
construction by the Owner or a separate contractor except with the written consent of the
Owner and of the separate contractor; consent shall not be unreasonably withheld. The
Contractor shall not unreasonably withhold from the Owner or a separate contractor the
Contractor's consent to cutting or otherwise altering the Work.
(c) A Hot Work Pen -nit must be obtained from the City of Denton's Facilities Management
Department, 869 S. Woodrow Lane, Denton, Texas (940'349-7200) for any temporary
operation involving open flames or producing heat and/or sparks. This includes, but is not
limited to: "Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and Welding.
3,15 CLEANING UP
(a) The Contractor shall keep the Project site and surrounding area free from accumulation of
,.vaste 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 ofthe Contractor's tools, construction equipment, machinery, and surplus
materials.
(b) If the Contractor fails to cleanup 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.
The Contractor shall provide the Owner and theArchitect/Engineer access to the Work in
preparation and progress wherever located during the course of construction.
1 !'
(a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or
by laws, ordinances,rules, regulations, or orders of governmental entities or agencies having
jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the
Contractor shall make arrangements for such tests, inspections, and approvals with an
independent testing laboratory or entity acceptable to the Owner or«pith the appropriate
governmental entity or agency, and the Contractor 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 tobe;made so the Architect/Engineer may observe
such procedures. The Owner shall bear costs of tests, inspections, or approvals which become
requirements alter bids or proposals are received.
(b) If the Architect/Engineer, the Owner or other public authorities having jurisdiction over the
Work determine that portions of the Work require additional testing, inspection or approval not
included under Subparagraph 3.17(a), the Architect/Engineer will, upon written authorization
from the Owner, instruct the Contractor to make arrangements for such additional testing,
inspection or approval by an entity acceptable to the Owner, andtheContractor shall give timely
notice to the Architect/Engineer of when and where tests and inspections are to be made so that
the Architect/Engineer may observe such procedures. The Owner shall bear such costs except as
provided in Subparagraph 3.17(c).
(c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b)'reveal
deficiencies or nonconformities in the Work, the Contractor shallbear all costs made necessary
to correct the deficiencies or nonconformities, including those of repeated procedures and
compensation for the Architect/Engineer's services and expenses, if any. The Contractor shall
bear the costs of any subsequent testing, inspection, or approval of the corrected Work.
(d) Required certificates of testing, inspection or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor and promptly delivered to the
Architect/Engineer.
(c) If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract
Documents, the Architect/Engincer will do so promptly and, where practicable, at the normal
place of testing or inspection.
(f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to
avoid unreasonable delay in the Work.
3.18 ROYALTIES AND PATENTS
The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL COMPLETELY
DEFEND, INDEMNIFY AND HOLD OWNER ANDARCHITECT/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 INTHE CONTRACT
DOCUMENTS THAT MAY BE THE SUBJECT OF A'PATENT INFRINGEMENTOR
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 Arch itect/Engineer
of Sallie.
KRUk'"I MaNURK1111IM91
THE ONTRACTOR AGREES TO DEFEND INDEMNIFY AND HOLD THE OWNER ITS
a W
L" IIII Ian
(b) In clairns 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 thern or anyone for
whose acts they may be liable, the indernnification 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 acis.
(c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which
could result to or be created for the Owner, its officers, agents, or employees, or the
Architect/Engineer pursuant to State or Federal laws or regulations relating to pollution of [lie
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.
(a) The design professional is the person lawfully licensed to practice architecture or engineering or
a firm or other business entity lawfully practicing architecture/engineering identified as such in
the formal Building Construction Services Agreement and is referred to throughout the Contract
Documents as if singular in number. The teen "Architect/Engineer" means the
Architect/Engineer or the Architect/Engineer's authorized representative. The Owner may, at its
option, designate a qualified Owner representative to serve as the Architect/Engineer on the
Project instead of an outside firm or person. In such event, the references in these General
Conditions that refer to the Architect/Engineer shall apply to the Owner -designated
Architect/Engineer representative and the Owner -designated Architect/Engineer representative
shall be accorded that same status by the Contractor.
(b) In the event the Architcet/Engincer 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 ArchitectfEngineer. 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/Enginecr for all purposes under the Contract Documents and shall
be accorded that same status by the Contractor. Any dispute in connection with such
appointment shall be reviewed and settled by the Owner, whose decision shall be final and
binding.
(c) Owner reserves the right to appoint a representative empowered to act for the Owner during the
Construction Phase and to supersede the Architect/Engineer's Construction Phase responsibility.
Owner shall notify the Architect/Engineer and Contractor in writing at least 10 days in advance,
if electing to appoint a representative empowered to act for the Owner during the Construction
Phase. Similarly, fro m 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.
(a) The Architect/Engineer will administer the Contract as described in the Contract Documents and
in accordance with the terms of the Architect/Engineer's agreement with the Owner, where
applicable, subject to the direction and approval of the Owner. If requested by the Contractor, the
provisions of the Own er/Architect/Engineer Agreement will be made available to the Contractor.
(b) The Architect/Engineer shall provide, during performance of the Work, adequate and competent
periodic on -site construction observation, periodically visiting the Project site to the extent
necessary to personally familiarize themselves with the progress and quality of the Work, and to
determine if the Work is proceeding in accordance with the Contract Documents. The
Architect/Engincer shall not, however, be required to make continuous on -site inspections to
check the Work. Field reports of each visit shal I 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/Engincer
shall not be responsible for the construction means, methods, techniques, sequences of
procedures, nor for the safety precautions and programs employed in connection with the Work.
The Architect/Engineer will, however, immediately inform the Owner whenever defects or
nonconformities in the Work are observed, or when any observed actions or omissions are
undertaken by the Contractor or any Subcontractor which are not in the best interests of the
Owner or the Project.
(c) The Architect/Engincer and the Owner will not have control over or charge of and will not be
i responsib lef or construction means, methods, techniques, sequences, or procedures, or for safety
precautions and programs in connection with the Work, since these are solely the Contractor's
responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be
responsible for the Contractor's failure to carry out the Work in accordance with the Contract
Documents. The Architect/Engineer and the Owner will not have control over or charge of and
will not be responsible for acts or omissions of the Contractor, Subcontractors, Sub -
subcontractors, or their respective agents or employees, or of any other persons performing
portions of the Work for which the Contractor is responsible.
(d) Except as otherwise provided in the Contract Documents or when direct communications have
been specially authorized, the Owner and Contractor shall endeavor to communicate through the
Architect/Engineer. Communications by and with the Architect/Engincer'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.
(c) 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
conforni to the Contract Documents. Whenever the Arch itect/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 3.1 7(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/Engincer to the Contractor, Subcontractors, material and
equipment suppliers, their agents or employees, or other persons performing portions of the
Work.
(g) The Architect/Engineer will review and approve or take other appropriate actionupon 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 tile Owner, Contractor, or
separate contractors. Review of such submittals is not conducted for the purpose of deter pining
the accuracy and completeness of other details such as dimensions and quantities, or for
substantiating instructions for installation or performance of equipment or systems, all of which
remain the responsibility of the Contractor as required by the Contract Documents. The,
Architect/Engineer's review of the Contractor's submittals shall not relieve the Contractor of any
obligations under Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer's review shall not
constitute approval of safety precautions or, unless otherwise specifically stated in writing by the
Architect/Engineer, of any construction means, methods, techniques, sequences, or procedures.
The Architect/Engineer's approval of a specific item shall not indicate approval of an "assembly
of which the item is a component.
(h) The Architect/Engineer will prepare Change Orders and may, authorize minor changes ill the
Work as provided in Paragraph 7.3.
(i) The Architect/Engineer will conduct inspections to determine the date or dates of Substantial
Completion and the date of final completion, will receive and forward to the Owner for the
Owner's review and records written warranties and related documents required by the Contract
and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance
with the requirements of the Contract Documents.
(j) If the Owner and Architect/Engineer agree, the Architect/Engineer will provide one or more
Project representatives to assist in carrying out theArchitect/Engineer's responsibilities at the
site. The duties, responsibilities, and limitations of authority of such Project representatives shall
be as set forth in an exhibit to be incorporated into the Contract Documents.
(k) The Architect/Engineer will interpret and make recommendations to the Owner concerning
performance under and requirements of the Contract Documents upon written request of either
the Owner or Contractor. The Architect/Engineer's response to such requests will be made with
reasonable promptness and within any time limits agreed upon. The Architect/Engineer shall
secure the Owner's written approval before issuing instructions, interpretations, or judgments to
the Contractor which change the scope of the Work or which modify or change the terms and
conditions of any of the Contract Documents.
(1) Interpretations and decisions of the Architect/Engineer will be consistent with the intent of and
reasonably inferable from the Contract Documents and will be in writing or in the form of
Drawings. When making such interpretations and decisions, the Architect/Engineer will
endeavor to secure faithful performance by the Contractor.
(m)The Architect/Engineer's decisions on matters relating to aesthetic effect will be final if
consistent with the intent expressed in the Contract Documents provided that the
Architect/Engineer has prior written approval of the Owner.
4.3 CLAIMS AND DISPUTES
(a) Definition, General Notice of Claim Procedure. As used in these General Conditions, a "Claim"
means a demand or assertion by one of the parties to the Contract seeking an adjustment of the
terms of the Contract Documents, of the Contract Sum, of the Contract Time, or some other
relief in respect to the tennis 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 ofthe 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 fi-om
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 tune, or
other relief, including but not limited to claims arising from concealed conditions, shall be signed
and sworn to by an authorized corporate officer (if not a corporation, then an official of the
company authorized to bind the Contractor by his signature) of the Contractor, verifying the truth
and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED
ANY CLAIM NOT MADE STRICTLY iN ACCORDANCE WITH THE PROCEDURE AND
TIME LIMITS SET OUT IN THIS` PARAGRAPH.
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between the
Contractor and the Owner relating to the progress or execution of the Work or the interpretation
of the Contract Documents shall be referred to the Architect/Engineer for recommendation to the
Owner, which recommendation the Architect/Engineer will furnish in writing within a
reasonable time, provided proper and adequate substantiation has been received. Failure of the
Contractor to submit the Claim to the Architect/Engineer for rendering of a recommendation to
the Owner shall constitute a waiver of the Claim.
(c) Continuing Contract Performance. Pending final resolution of claim the Contractor shall
proceed diligently with performance of the Work and the Owner shall continue to make
payments in accordance with the Contract Documents.
(d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time
associated with concealed or unknown conditions will normally be considered or allowed;
provided, however; that the Contract Sum or Time may be adjusted by the Owner in such
circumstances only if
(1) a concealed subsurface condition is encountered in the course ofperfonnance of the Work;
(2) a concealed or unknown condition in an existing structure is at variance with conditions
indicated by the Contract Documents; or
(3) an unknown physical condition is encountered below the surface of the ground or in an
existing structure which is of an unusual nature and materially different from those ordinarily
encountered and generally recognized as inherent in the character of Work and
(4) a notice *of claim with proper and adequate substantiation is presented pursuant to
Subparagraph 4.3(a) of these General Conditions; and
(5) the Owner and the Architect/Engineer determine that:
(1) 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
(it) the work caused or required by the concealed or unknown condition at issue can be
considered extra work to the extent that additional new Drawings must be prepared and
issued and new construction beyond the scope of the Contract Documents is required.
(e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE
INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS TESTING
REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS)
PROVIDED BY THE OWNER AND THE ARCHITECT/ENGINEER IN THE PROJECT
MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT
THE CONTRACTOR'S OWN RISK. THE OWNER AND THE ARCHITECT/ENGINEER'DO
NOT GUARANTEE OR WARRANT ANY INFORMATION SHOWN IN THE PROJECT
SITE INFORMATION AND REPORTS.
(t) 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, oftime, without adversely affecting the construction
schedule, to review the request, prepare and distribute such additional documents as may be
necessary to obtain suitable estimates or proposals and to negotiate, execute and distribute a
Change Order for the required work if the Contractor believes that additional cost is involved .for
reasons including but not limited to:
(1) a written interpretation from the Architect/Engineer;
(2) a written order for a minor change in the Work issued by the Architect/Engineer;
(3) failure of payment by the Owner;
(4) termination of the Contract by the Owner;
(5) the Owner's temporary suspension of all or any portion of the Work where the Contractor
was not at fault; or
(6) other reasonable grounds.
(g) Injury or Damage to Person or Property. Ifthe Contractor suffers injury or damages to person or
property because of an act or omission of the Owner, or of anyof the Owner's officers,
employees or agents, written, sworn -to notice of any claim for damages or injury shall be given
as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail to enable the
Architect/Engineer and the Owner to investigate the matter.
(h) Subcontractor Pass -Through Claims. In the event that any Subcontractor of the Contractor
asserts a claim to the Contractor that tile Contractor seeks to pass through to the Owner under the
Contract Documents, any entitlement of the Contractor to submit and assert the claim against the
Owner shall be subject to:
(1) the requirements of Paragraph 4.3 of these General Conditions; and
(2) the following additional three requirements listed below, all three of which additional
requirements shall be conditions precedent to the entitlement of the Contractor to seek and
assert such claim against the Owner:
(n) 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 Conti -actor 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.
(1i) The Contractor shall have reviewed the claim of the Subcontractor prior to its submittal
to Owner and shall have independently evaluated such claim in good faith to determine the
extent to which the claim is believed in good faith to be valid, The Contractor shall also
certify, in writing and under oath to the Owner, at the time of the submittal of such claim,
that the Contractor has made a review, evaluation, and determination that the claim is made
in good faith and is believed to be valid.
(iii) The Subcontractor making the claim to the Contractor shall certify in writing and under
oath that it has compiled, reviewed and evaluated the merits of such claim and that the claim
is believed in good faith by the Subcontractor to be valid. A copy of the certification by the
Subcontractor shall be included by Contractor in the claim submittal materials.
(3) Any failure of the Contractor to comply with any of the foregoing requirements and
conditions precedent with regard to any such claim shall constitute a waiver of any
entitlement to submit or pursue such claim.
(4) Receipt and review of a claim by the Owner under this Subparagraph shall not be construed
as a waiver of any defenses to the claim available to the Owner under the Contract
Documents or law.
(i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time
Extensions, in Whole or in Part. The Contractor acknowledges and agrees that Substantial
Completion of the Work by or before the Scheduled Completion Date is of substantial
importance to Owner. The -following provisions, therefore, will apply:
(1) If the Contractor falls behind the approved construction schedule for whatever reason, the
Owner shall have the right, in the Owner's sole discretion, to order the 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, ifany, of the Contractor to additional compensation for any acceleration
shall be subject to the tern -is of this Subparagraph (1).
(2) In tile event that the Contractor is otherwise entitled to an extension of Contract Time and
has properly initiated a Claim fora 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 pail, 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 aai`extension of Contract Time under this
Clause (i)(2), either in whole or hi part, the Contractor shall proceed to prosecute the
Work in such a'manner as to achieve Substantial Completion on or before the then
existing Scheduled Completion Date.
(3) If the Contractor would have been entitled to a time extension for a reason specifically
allowed under the Contract Documents, for an amount of time that would have _justified
approval by the Owner if not for the need and right to accelerate, the Contractor may
initiate a Claim for acceleration costs pursuant to Subparagraph 4.3(a). Any resulting
Claim for acceleration costs properly initiated by the Contractor under Subparagraph
43(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 casts 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 performanceand payment bonds and required insurance, not to exceed
5%, will be allowed on the claimed acceleration costs. NO OTHER MARKUP: FOR
PROFIT, OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE
OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY
ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an
acceleration claim other than those described in this Clause (i)(3).
(i) Waiver of Claims; FinalPayment. The making of final payment shall constitute a waiver of
claims by the Owner except those arising from:
(1) claims, security interests, purported liens, or other attempted encumbrances arising out of the
Contract and remainuig unsettled;
(2) defective or nonconforming Work appearing after Substantial Completion;
(3) latent defects, as defined in Subparagraph I2.2(d), appearing after Final Completion; or
(4) the terms of general and special warranties required by the Contract Documents or allowed or
implied by law.
(k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES AS
A FART OF ANY CLAIM MADE UNDER TI-I�E CONTRACT DOCUMENTS OR IN ANY
SUBSEQUENT LAWSUIT OR ALTERNATIVEDISPUTE RESOLUTION PROCEEDING.
(1) 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.
(a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform a
portion of the Work at the Project site or to supply materials or equipment to the Contractor by
purchase or lease for use <in performance of or incorporation into the Work. The term
"Subcontractor" is referred to throughout the Contract Documents as if singular in number and
means a Subcontractor or an authorized representative of the Subcontractor. The term
"Subcontractor" does not include a separate contractor or subcontractors of a separate contractor,
(b) A Sub -subcontractor is a person or entity who has a direct or indirect contract with a
Subcontractor to perform a portion of the Work at the Project site or to supply materials or
equipment to the Subcontractor or another Sub -subcontractor by purchase or lease for use in
perfon-nance 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.
02 N 1: 0 DI 81 Brut Z
M
(a) Immediately after the award of the Contract by the Owner, and before the Building Construction
Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish to
the Architect/Engineer in writing, for acceptance by the Owner and the Architect/Engineer, a list
of the names, addresses, telephone numbers, M/WBE certification numbers (where applicable),
and type ofwork 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 apart of the Contract. The Contractor shall immediately notify
the Owner in writing of any changes in the list as they occur. The Arch itect/Engineer will
promptly reply to the Contractor in writing stating whether or not the Owner or the
Architect/Engineer, after due investigation, has reasonable objection to any such proposed
person or entity. Failure of the Owner or Architect/Engineer to reply promptly shall constitute
notice of no reasonable objection.
(b) The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable and timely objection.
(c) Architect/Engineer's` and . Owner's approval of or objection to any Subcontractor or of a particular
process or material will not relieve the Contractor of his responsibility for performance of Work
as called for under the Contract Documents, and shall not provide a basis for any claim for
additional time or money on the part of the Contractor. Approval shall not be construed to create
any contractual relationship between the Subcontractor and either the Owner or
Architect/Engineer. In no event shall the Contract Sum be increased as a result of the rejection of
any Subcontractor.
(d) The Contractor shall not change a Subcontractor previously selected if the Owner or
Architect/Engincer makes reasonable objection to such change.
5.3 SUBCONTRACTUAL RELATIONS
(a) By appropriate agreement, written where legally.required for validity, the Contractor shall
require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be
bound to the Contractor by the terms of the Contract Documents (including but not limited to
these General Conditions), and to assume toward the Contractor all the obligations and
responsibilities which the Contractor, by the Contract Documents, assumes toward the Owner
and the Architect/Engineer. Each subcontract agreement shall preserve and protect the rights of
the Owner and the Architect/Engineer under the Contract Documents (including but not limited
to these General Conditions) with respect to the Work to be perfon-ned by the Subcontractor so
that subcontracting will not prejudice the rights of the Owner and the Architect/Engineer. Where
appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with
Sub -subcontractors. The Contractor shall make available to each proposed Subcontractor, prior
to the execution of the subcontract agreement, copies of the Contract Documents to which the
Subcontractor is to be bound. Subcontractors shall similarly make copies of applicable portions
of such Documents available to their respective proposed Sub -subcontractors.
(b) The Contractor is solely responsible for making payments properly to the Contractor's
Subcontractors on the Project. During perfon-nance of the Work, the Contractor shall comply
with the following additional rules regarding Subcontractor payments:
(1) The Contractor shall submit, beginning with the Second Application and Certificate for
Payment, a Subcontractor Payment Report (the "Report")with each Application and
Certificate for Payment, along with partial waivers of liens for all Work included- in the
application 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 1brm approved and supplied by the Owner. Pay applications will not be reviewed
or certified by the Architect to the Owner without accompanying partial lien waivers after the
first Certificate for payment. With each Application for Payment, the Contractor shall certify
that there are no mechanics' or materialmen's Liens outstanding at the date of the
Application for Pyament, and that all bills due with respect to the Work have been paid to
date, and that there is no known basis for filing of any liens against the Surety or the Owner
in connection with the Work. Upon completion by the Contractor of the construction of the
project, but prior to final payment to the Contractor, the Contractor shall deliver to the Owner
conditional releases of all liens, which shall identify the remaining sums to be paid pending
receipt of final payment. The conditional releases of liens, upon final payment by the Owner,
shall rlease the Owner of all liens, and of all 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 th'e project have been paid fori and
indicating that the Ower is released from all such claims. 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.
Provided that the Owner has been notified by written correspondence (a lien notice) fi-om any
manufacturer, material -men, or subcontractor furnishing services or materials for the project that
an outstanding debt is owed, the Owner shall ensure that the Contractor is notified of such notice
within ten (10) days of receipt of such notice. The Contractor shall ensure that resolution has
been achieved for each written notice filed with the Owner, and provide sufficient written
documentation to the Owner that payment has been rendered, or a resolution has been achieved
that is satisfactory to the Owner.
(2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute
or other problem with performance, the Contractor shall note the amount withheld and that
payment is in dispute. The Owner may require the Contractor to document and verify the
dispute or other problem in question.
(3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor
pursuant to Paragraph 9.5(a) of the General Conditions, should it appear fforn the Report,
statements of payment received or other information furnished to the Owner that:
(i) the Report has not been property completed;
(ii) the Contractor has knowingly provided false information regarding payment of any
Subcontractor; or
(iii) the Contractor has otherwise failed to make payments properly to any Subcontractor.
(4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR
ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A -RESULT OF THE
OWNER'S OR ARCHITECT/ENGINEER'S ENFORCEMENT OF THIS
SUBPARAGRAPH 5.3(b), NO PROVISION OF THIS SUBPARAGRAPH OR ANY OF
T14E CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE A
CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY
SUBCONTRACTOR AND EITHER THE OWNER OR THE ARCHITECT/EN GI NEER
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 tcn-ninated by the
notice of termination.
CONTRACTS
(a) The Owner reserves the right to perform construction or operations related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the
Project or other construction or operations onthe Project site under Conditions of the Contract
identical ,orsubstantially similar to thesc General Conditions, including those portions related to
insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is
involved because of such action by the Owner, the Contractor shall make a claim as provided
elsewhere in and in accordance with the Contract Documents.
(b) When separate contractsare, awarded for different portions of the Project or other construction or
operations on the Project site, the term "Contractor" in the Contract Documents in each case
shall mean the Contractor who executes each separate' Building Construction Services
Agreement with the Owner.
(c) The Owner shall provide for coordination of the activities of the Owner's own forces and of each
separate contractor with the Work of the Contractor, who shall cooperate with them. The
Contractor shall participate with other separate contractors and the Owner in reviewing their
construction schedules when directed to do so. The Contractor shall, with the approval of the
Owner, make any revisions to the construction schedule deemed necessary after a joint review
and mutual agreement. The construction schedules shall then constitute the schedules to be used
by the Contractor, separate contractors, and the Owner until subsequently revised by mutual
agreement or by written Change Order, If the Contractor believes it is entitled to an adjustment
of the Contract Sum under the circumstances, the Contractor shall submit a written proposal for a
Change Order pursuant to Article 7 of the General Conditions. In the event the Contractor's
Change Order proposal is denied by the Owner, the Contractor must submit any Claim pursuant
to Paragraph 4.3 of the General Conditions.
(d) Unless othenvise 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.
(a) Tile Contractor shall afford the Owner and separate contractors` reasonable opportunity for
access to and storage of their materials and equipment and the performance of their activities and
shall coordinate the Contractor's construction and operations with the separate contractors as
required by the Contract Documents.
(b) If part of the Contractor's Work depends for proper execution or results upon construction or
operations by the Owner or a separate contractor,. the Contractor shall, prior to proceeding with
that portion ofthe Work, promptly report to the Architect/Engineer apparent discrepancies or
defects in tile, other construction that would render it unsuitable for proper execution and results.
Failure of the Contractor to so report shall constitute an acknowledgment that the Owner's or
separate contractors completed or partially completed construction is fit and proper to receive the
Contractor's Work, except as to defects not then reasonably discoverable.
(c) The Owncr 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. Surn, however, shall be due to the,
Contractor.
(d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to
completed or partially completed construction or to property of the Owner or separate
contractors as provided in Subparagraph l U.2(e).
(e) Should the Contractor cause damage to the work or property of any separate contractor on the
Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement, if
the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim
on account of any damage alleged to have been so sustained, the Owner shall notify the
Contractor who shall defend such proceedings, at the Contractor's expense, and if any judgment
or award against the Owner arises from the separate contractor's claim, the Contractor shall pay
or satisfy it and shall reimburse the Owner for all attorney's fees and costs which the Owner has
incurred.
(f) The Owner and each separate contractor shall have the same responsibilities for cutting and
patching as arc described for the Contractor in Paragraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN U
If dispute arises among the Contractor, separate contractors and the Owner as to the responsibility
under their respective contracts for maintainingthe 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.
(a) :A Change Order is a written order to the Contractor, signed by the Owner and the
Architect/Engineer, issued after execution of the Contract, authorizing a change in the Work, an
adjustment in the Contract Sum, or an adjustment to the Contract Time, consistent with other
applicable provisions of this Contract. The Owner, without invalidating the Contract and without
requiring notice of any kind to the sureties, may order changes to the scope of Work under the
Contract by additions, deletions, or other revisions, tite Contract Sum and Contract Time to be
adjusted consistent with other applicable provisions of this Contract. All Change Orders shall be
executed on a Change Order form approved by the Owner and the Owner's City Attorney.
(b) In addition to the Owner and the Architect/Engineer,the Contractor shall sign all Change Orders
to verify and confirm the terms and conditions established by Change Order; however, should
the Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to
perform the change directed by the Owner and the Architect/Engineer to the best of his ability in
accordance with the provisions of this Article 7. A Change Order signed by the Contractor
indicates his agreement with all of the changes approved, including the adjustment in the
Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND
FINAL AS TO PRICESAND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR
OTHER PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A
RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY COMPENSATED
IN THE CHANGE ORDER. The execution of a Change Order by the Contractor shall constitute
conclusive evidence of the Contractor's agreement to the ordered changes in the Work. The
Contractor forever releases any claim against the Owner for additional time or compensation for
matters relating to or arising out of or resulting from the Work included within or affected by the
executed Change Order. This release, applies to claims related to the cumulative impact of all
Change Orders and to any claim related to the effect of a change on other Work.
(c) No extra work (except under emergency conditions) or changes shall be made nor shall any
substitutions, changes or additions to or omissions or deviations froth the requirements of the
Drawings and Specifications be made unless pursuant to a written Change Order signed by the
Owner and the Architect/Engineer, it being expressly understood that the Owner shall not be
liable for the cost of extra work or any substitution, change,addition, omission or deviation from
the requirements of the Drawings or Specifications unless the same shall have been authorized in
writing by the Owner and the Architect/Engineer in a written change order or other Amendment.
The provisions of this Paragraph 7.1 shall control in the event of any inconsistency between such
provisions and the other provisions of this Article 7. See Subparagraph 10.3(a) of the General
Conditions for Change Orders under emergency conditions.
(d) The method of determining the cost or credit to the Owner for any change in the Work shall be
one of the following.
(1) mutual acceptance of a guaranteed maximum price amount properly itemized and supported
by sufficient substantiating data to permit evaluation;
(2) unit prices stated in the Contract Documents or subsequently agreed upon;
(3) cost to be detennined in a manner agreed upon by the parties and a mutually acceptable fixed
or percentage fee; or
(4) the force account method provided in Subparagraph 7.1(e)
(e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1),
(d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final dollar figure, or if
the Contractor for whatever reason refuses to sign the Change Order in question, the Contractor,
provided he receives a written order signed by the Owner, shall promptly proceed with the Work
involved. The cost of the Work involved shall then be calculated on the basis of the reasonable
jobsite expenditures and savings of those perforniing the Work attributable to the changes,
including a reasonable allowance for overhead and profit, such allowance in any case never to
exceed 15%. In such case, the Contractor shall keep an itemized accounting of the Work
involved, on a daily basis, in such form and with the appropriate supporting data as the
Architect/Engineer and Owner may prescribe. Sworn copies of the itemized accounting shall be
delivered to the Architect/Engineer each day during the performance of force account work, with
copies to the Owner.
FAILURE. OF THE CONTRACTOR TO SUBMIT THE SWORN -TO ITEMIZED
ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY
THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION
OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE ACCOUNT WORK -Costs to be
charged under this Subparagraph for force account work are limited to the following:
(1) costs of labor, including social security, old age and unemployment insurance, fringe benefits
required by agreement or custom, and workers compensation insurance;
(2) costs of materials, supplies and equipment (but not to include off -site storage unless
approved in writing by the Owner), whether incorporated or consumed;
(3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the
Contractor or others;
(4) costs of premiums for all bonds and insurance related to the Work; and
(5) additional costs of supervision and field office personnel directly attributable to the chang
Work. Pending final determination of cost to the Owner, payment of undisputed amounts o
force account shall be included on the Architect/Engineer's Certificate of Payment as work
completed. I
(f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change
which results in a net decrease of the Contract Sum shall be the amount of actual net cost
confirmed by the Architect/Engineer plus the stated percentage for overhead and profit. When
both additions and deletions or credits covering related Work or substitutions are involved in any
one change, the allowance for overhead and profit shall be figured on the basis of the net
increase or decrease with respect to that change.
7.2 SUPPLEMENTAL AGREEMENTS
A written Supplemental Agreement can also be used to implement changes in the Work instead of a
Change Order form, including but not limited to situations involving partial occupancy of the Work
under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the
Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to
use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that
of Change Orders for purposes of priority of Contract Documents interpretation, except that to the
extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental
Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier
dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1 (b) through (0
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 froill the date the
minor change was ordered, to the Owner tbr approval.
7.4 TIME REQUIRED TO PROCESSAMENDMENTS
(a) All of the Contractor's responses to proposal requests shall be accompanied by a complete,
itemized breakdown of costs. Responses to proposal requests shall be submitted sufficiently in
advance of the required work to allow the Owner and. the Architect/Engineer a minimum of
thirty (30) calendar days after receipt by the Architect/Engineer to review the itemized
breakdown and to prepare or distribute additional documents as may be necessary. All of the
Contractor's responses to proposal requests shall include a statement that the cost described in
theresponse represents the complete, total and final cost and additional Contract Time associated
with the extra work, change, addition to, omission, deviation, substitution, or other grounds for
seeking extra compensation under the Contract Documents, without reservation or further
recourse.
(b) All Amendments require approval by either the City Council or, where authorized by the state
law and City ordinance, by the City Manager pursuant to Administrative Action. The approval
process requires a minimum of forty-five (45) calendar days after, submission to the Owner in
final fonn 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.
F&IM"V0111 [lS►f.'i
(a) Unless otherwise provided, the Contract Time is the period oftune, including authorized
adjustments, allotted in the Contract Documents for Substantial Completion of the Work,
(b) The date of commencement of the Work is the date established in the notice to proceed from the
Owner. The date of commencement shall not be postponed by the failure of the Contractor, or of
persons or entities for whom the Contractor is responsible to act promptly to commence the
Work. If the Owner unreasonably delays the issuance of the notice to proceed through no fault of
the Contractor, the Contractor shall be entitled only to an equitable extension of the Contract
Time; the Contract Sum shall remain unchanged.
(c) The date of SubstantialCompletion is the date certified by the Architect/Engineer in accordance
with Paragraph 9.7.
(d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning and
ending at 12:00 midnight, unless otherwise specifically defined by special provision.
(a) Time limits stated in the Contract Documents are of the essence of the Contract. By executing
the BuildingConstruction Services Agreement, the Contractor confirms that the Contract Time is
a reasonable period for performing the Work.
(b) The Contractor shall not knowingly, except by agreement with or instruction Of the Owner in
writing, prematurely commence operations on the Project site or; elsewhere prior to the effective
date of insurance to be furnished by the Contractor as required by Article 1.1. The date of
commencement of the Work shall not be changed by the effective date of insurance required by
Article 11.
(c) Liquidated Damages. The Contractor shall proceed 'expeditiously with adequate forces,
materials, and equipment, and shall achieve Substantial Completion within the Contract Time. If
the Contractor fails or refuses to complete the Work within the Contract Time as specified in the
Bid Proposal form, the Building Construction Services Agreement, or in any properextension of
the Contract Time granted by the Owner, then the Contractor agrees, as a part of the
consideration for the awarding of the Contract, to pay to the Owner the amount of liquidated
damages (hereinafter called the "Stipulated Amount") as stipulated in the Bid Proposal form and
the Building Construction Services Agreement for each calendar day that the Contractor has not
Substantially Completed the Work after the expiration of the Contract Time provided. The
Stipulated Amount is not to be considered as a penalty, but shall be deemed, taken, or treated as
reasonable liquidated damages, fixed and agreed upon by and between the Contractor and the
Owner because of the impracticality and extreme difficulty of fixing and ascertaining the actual
damages the Owner would sustain in the event of the Contractor's late completion of the Project,
and the stipulated; amount is agreed to be the daily amount of damages that the Owner would
sustain. The Stipulated Amount, as it accrues, will be retained from any portion of the Contract
Sum due or that may become due to the Contractor. In the event the portion of the Contract Sum
retained by the Owner is insufficient do recover the Stipulated Amount, then the Contractor or the
Contractor's Surety shall pay to the Owner any additional liquidated damages due that are in
excess of the funds remaining unpaid in the Contract Su. The Owner shall be the sole judge as
to whether or not the Work has been Substantially Completed within the calendar days allotted,
which shall include the original Contract Time and any proper extension of the Contract Time
granted in writing by the Owner. Should the Contractor dispute the Owner's determination of
liquidated damages due, however, or should the Contractor, or the Contractor's agents or assigns,
institute any legal, action against the Owner to enforce rights under the Contract Documents, then
this Subparagraph 8.2(c) shall not be construed to prevent the Owner from seeking full recovery
for any and all actual damages suffered by the Owner and attributable to the Contractor, as an
alternative to all liquidated damages due.
.3 DELAYS AND EXTENSIONS OF TIME
(a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the
Owner or Architect/Engineer, or of an employee of either, or of a separate contractor employed
by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in
deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay
authorized by the Owner pending,a claim, or by other causes which the Architect/Engineer
determines may justify delay, then the Contract Time shall be extended by Change Order for
such reasonable time as'the Architect/Engineer and Owner may determine.
(b) Claims relating to Contract Time and time extensions shall be made in accordance with the
applicable provisions of Paragraph 4.3.
SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL
COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE,
DISRUPTION, FORCE MAJEURE, IMPACT, OR INTERFERENCE, INTENTIONAL OR
UNINTENTIONAL, FORESEEN OR UNFORESEEN, WHICH INCREASES THE TIME TO
COMPLETE THE WORK, INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED
IN WHOLE OR IN PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR
FAULT OF THE OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S
REPRESENTATIVE, AN EXTENSION OF THE CONTRACT TIME UNDER
SUBPARAGRAPH 8.3(a) BEING THE CONTRACTOR'S SOLE REMEDY.
(d) The Owner shall have the right to occupy, without prejudice to the right of either party, any
completed or largely completed portions of the structure or Work, notwithstanding the fact that
the Contract Time for completing all or a portion of the Work may not have expired. Partial
occupancy and use shall not be deemed as an acceptance of the Work taken or used.
(e) The Contractor shall promptly suspend the Work when either the Contractor or the Owner is
ordered to do so by a court order from a court having lawful jurisdiction, and the Contractor will
not <be entitled to additional compensation by virtue of any delays resulting from the court order.
The Contractor will also not be liable to the Owner for a delay caused in fact by the Work being
suspended by a court order.
(f) The Architect./Enguicer, 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 decins 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 Arch itect/Engineer or
the Owner to resume operations.
(g) In the event o f 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 resequcncing. 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/Engincer, 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,
, 7JTrfJJJ5�@
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.
(a) At least ten (10) days before the date established for each progress payment, the Contractor shall
submit to the Architect/Engineer an itemized Application for Payment for Work completed in
accordance with the schedule of values. The Application shall be notarized, if required, and
supported by data substantiating the Contractor's right to payment as the Owner or
Architect/Engineer may require, including but not limited to copies of requisitions from
Subcontractors and material suppliers, and reflecting the applicable retainage as required in the
Contract Documents. Contractor's Application for Payment shall also provide other supporting
documentation as the Owner or the other applicable provisions of the Contract Documents may
require.
(b) Applications for Payment may not include requests for payment of amounts the Contractor does
not intend to pay to a Subcontractor because of a good faith dispute, unless the Contractor
complies with Clause 5.3(b) (2) of these General Conditions and the Contractor's Payment Bond
Surety consents in writing to payment to the Contractor of the funds deemed to be in dispute.
(c) Unless otherwise provided in the Contract Documents, progress payments shall include payment
for materials and equipment delivered and suitably stored at the Project site for subsequent
incorporation into the Work within thirty (30) days after delivery to the Project site. If approved
in advance by the Owner, payment may similarly be made for materials and equipment suitably
stored away from the Project site at a location agreed upon in writing. Payment for costs incurred
in storage of materials or equipment away from the Project site will NOT be made by Owner
unless:
(1) the Owner has given prior approval of such off -site storage in writing;
(2) the materials or equipment are stored in a bonded warehouse located in Denton County and
identified with the Project for which they are stored, as evidenced by warehouse receipts
and appropriate documents of title; and
(3) the materials or equipment stored off -site will be incorporated into the Work within thirty
(30) days after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR
THE CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESSTHE
OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN
WRITING.
(d) The Contractor warrants that title to all Work covered by an Application for Payment will pass to
the Owner no later than the time of payment. The Contractor further warrants that upon submittal
of an Application for Payment all Work for which Certificates for Payment have been previously
issued and payments received ,frorn the Owner shall be free'and clear of liens, claims, security
interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other
persons or entities making a claim by reason of having provided labor, materials, and equipment
relating to the Work.
(e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an
approved schedule for delivery to the Project site shall be classified as an "early delivery." All
early delivery materials or equipment must have the express written pen-nission of the Owner to
be stored on the Project site. If any unauthorized early delivery occurs, Contractor shall, at
Contractor's expense or at the expense of the responsible Subcontractor or Supplier, cause such
early delivery to be removed from the Project site and stored off -site until required at the Project
site. All costs of labor, transportation and storage will be included as part of the expense. If the
Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause
such materials to be removed at the Contractor's sole expense, and amounts may be withheld
from the Contractor's Application for Payment to reimburse the Owner for any costs incurred in
removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR
THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY MATERIALS OR
EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE EARLY
DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as early
delivery will not be approved for payment as stored materials prior to thirty (30) days before the
incorporation of the materials or equipment into the Work, unless storage and payment at an
earlier date is expressly approved in writing by the Owner.
(f) If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are
not furnished by the Contractor, no payment applied for will be payable under the Contract until
the Work has been Finally Completed and accepted.
9.4 CERTIFICATES FOR PAYMENT
(a) The Architect/Engineer will, within ten (10) days after receipt of the Contractor's Application for
Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for
such amount as the Architect/Engineer determines is properly due, or notify the Contractor and
Owner in writing of the Architect/Engineer's reasons for withholding certification in whole or in
part as provided in
(a) City of Denton General Conditions 1br Building Construction.
(b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA
Form G702 (Application and Certificate for Payment) as approved by the Owner.
(c) The issuance of a Certificate for Payment will constitute a representation by the
Architect/Engineer to the Owner, based on the Architect/Engineer's observations at the site and
the data comprising the Application for Payment, that the Work has progressed to the point
indicated and that, to the best of the Architect/Engineer's knowledge, information and belief,
quality of the Work is in accordance with the Contract Documents. The foregoing
representations are subject to an evaluation of the Work for conformance with the Contract
Documents upon Substantial and Final Completion, to results of subsequent tests and
inspections, to minor deviations from the Contract Documents correctable prior to Final
Completion and to specific qualifications expressed by the Architect/Engineer. The issuance of a
Certificate for Payment will further constitute a representation that the Contractor is entitled to
payment in the amount certified, subject to the Owner's approval. The issuance of a Certificate
for Payment is not a representation that the Architect/Engineer has:
(1) made exhaustive or continuous on -site inspections to check the quality or quantity of the
Work;
(2) reviewed construction means, methods, techniques, sequences or procedures;
(3) reviewed copies of requisitions received from Subcontractors and material suppliers and
other data requested by the Owner to substantiate the Contractor's right to payment; or
(4) made examination to ascertain how or for what purpose the Contractor has used money
previously paid on account of the Contract Sum.
(d) Whenever the Application .for Payment for Work done since the last previous Application for
Payment exceeds one hundred dollars (V 00.00) 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.
(c) 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
typically 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 typically requires five
percent. For retainage percentages in excess of five percent, the City must deposit the retainage
into an interest -bearing account and pay the interest earned to the contractor on completion of the
contract. 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/Engincer, and final acceptance of the Work by the Owner, Unless otherwise required
by state law, the retainage percentage as specified above is based upon the original Contract
Sum, and will not be affected in the event the original Contract Sum is subsequently increased or
decreased by Change Order.
(f) No progress payments shall be made on contracts where performance and payment bonds are not
required or furnished. In such instances, payment for the Work performed will be made upon
final completion and acceptance by the Owner of all Work.
9.5 DECISIONS TO WIT"HOLD CERTIFICATION
(a) The Architect/Engineer or the Owner may decide not to certify payment and may withhold a
Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the
Owner's interest, if in the Architect/Engineer's or Owner's opinion the representations to the
Owner required by Subparagraph 9.4(b) cannot be made. If the Arehitect/Enginecr or the Owner
is unable to certify payment in the amount of the Application, the Architect/Engineer or the
Owner will notify the Contractor as provided in Subparagraph 9.4(a). If the Contractor and
Architect/Engineer or the Owner cannot agree on a revised amount, the Architect/Engineer will
promptly issue a Certificate for Payment for the amount for which the Architect/Engineer is able
to make the required representations to the Owner. The Architect/Engineer or the Owner may
also decide not to certify payment or, because of subsequently discovered evidence or
subsequent observations, may nullify the whole or a part of a Certificate for Payment previously
issued to such extent as may be necessary, in the Architect/Engineer's or Owner's opinion, to
protect the Owner from'loss because of:
(1) defective or nonconforming Work not remedied;
(2) third party claims filed or reasonable evidence indicating probable filing of such claims;
(3) failure of the Contractor to make payments properly to Subcontractors or for labor, materials,
or equipment;
(4) reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
(5) damage to the Owner or another contractor;
(6) reasonable evidence that the Work will not be completed within the Contract Time, and that
the unpaid balance would not be adequate to cover actual or liquidated damages for the
anticipated delay;
(7) persistent failure to carry out the Work in accordance with the Contract Documents; or
(8) mathematical or other errors that are discovered in the Application for Payment.
(b) When each of the above reasons that existed for withholding, certification are removed or
remedied, certification will be made for amounts previously withheld.
(c) The Owner may, at its option, offset any progress payment or final payment under the Contract
Documents against any debt (including taxes) lawfully due to the Owner from the Contractor,
regardless of whether the amount due arises pursuant to the terns 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.
(a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make
payment in the manner and within the time provided in the Contract Documents, and shall so
notify the Architect/Engineer. The Owner shall not be liable for interest on any late or delayed
progress payment or final payment caused by any claim or dispute, any discrepancy, in quantities,
any failure to provide supporting documentation or other information required with the
Application for Payment or as a precondition to payment under the Contract Documents, or due
to any payment the Owner or the Architect/Engineer has a right to withhold or not certify under
the Contract Documents. Notwithstanding the foregoing, the Owner may refuse to make payment
on any Certificate for Payment (including, without limitation, the filial Certificate for Payment)
for any default under the Contract Documents, including but not limited to those defaults set
forth in Subparagraph 9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default
by reason of withholding payment while any Contractor default remains uncured.
(b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner,
out of the amount paid to the Contractor on account of each Subcontractor's portion of the Work,
the amount to which said Subcontractor is entitled, reflecting percentages actually retained from
payments to the Contractor on account of such Subcontractors .portion of the Work, The
Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor
to make payments to Sub -subcontractors in similar manner.
(c) The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information
regarding percentages of completion or amounts applied for by the Contractor and action taken
thereon by the Architect/.Engineer and the Owner on account of portions of the Work done by
such Subcontractor.
(d) Neither the Owner nor the Architect/Engineer shall have an obligation to pay or to see to the
payment of money to a Subcontractor except as may otherwise be required bylaw. That
obligation belongs to the Contractor or, in the event of the Contractor's failure to pay a
Subcontractor, to the Surety on the Payment Bond as required under Paragraph 11.3.
(e) Payment to material suppliers shall be treated in a manner similar to that provided in
Subparagraphs 9.6(b),'(c), and (d).
(t) 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 ofthe Work, is the date
certified by the Architect/Engineer when construction is sufficiently completed in accordance with the
City Of Denton General Conditions For Building Construction.
(a) the Contract Documents such that the Owner inay beneficially occupy and use the Work, or
designated portions of the Work, for the purposes for which it is intended and only trivial and
insignificant items remain which do not affect the Work as a whole.
(b) When the Contractor considers that the Work, or the portion of the Work which the Owner
agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to
the Architect/Engineer a comprehensive list of remaining items to be completed or corrected.
The Contractor shall proceed promptly to complete and correct items on the list (hereinafter
called the "punch list"). Failure to include an item on the punch list does not ;alter the `
responsibility of the Contractor to complete all Work in accordance with the Contract
Documents. Upon receipt of the punch list, the Architect/Engineer will make an inspection to
determine whether the Work, or designated portion of the Work, is Substantially Complete. If the
Architect/En&eer'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 anoilier inspection by the
Architect/Engineer to determine Substantial Completion. When the Work or designated portion
of the Work is Substantially Complete, the Architect/Engineer will prepare a Certificate of
Substantial Completion which shall establish the date of Substantial Completion, shall establish
responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage
to the Work and insurance, and shall fix the time within which the Contractor shall finish all
items on the punch list accompanying the Certificate.
(c) The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for
their written acceptance of responsibilities assigned to them in the Certificate.
(d) Upon Substantial Completion of the Work or designated portion thereof and upon application by
the Contractor and certification by the Architect/Engineer, the Owner shall make payment,
reflecting adjustment in retainage, if any, for the Work, or portion of the Work, as provided in
the Contract Documents.
9.8 PARTIAL OCCUPANCY OR USE
(a) The Owner may occupy or use any completed or partially completed portion of the Work at any
stage when such portion is designated by separate Supplemental Agreement with the Contractor,
provided such occupancy or use is consented to by the insurer as required under Subparagraph
1 1.2(c) and authorized by public authorities having jurisdiction over the Work. Such partial
occupancy or use may commence whether or not the portion is Substantially Complete, provided
the Owner and Contractor have accepted in writing the responsibilities assigned to each of them
for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and
insurance, and have agreed in writing concerning the period for correction of the Work and
commencement of warranties required by the Contract Documents. When the Contractor
considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to partial
occupancy or use shall not be unreasonably withheld. The stage of the
(a) progress of the Work shall be determined by written agreement between the Owner and
Contractor or, if no agreement is reached, by decision of the Architeet/Engineer.
(b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and
Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to be used
in order to determine and record the condition of the Work.
(c) Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work
shall not constitute acceptance of Work not complying with the requirements of the Contract
Documents.
MIB a It: Ely IMIJ 0 1 &1 M M 0 (
(a) Upon receipt of written notice that the Work is ready for final inspection and acceptance and
upon receipt of a final Application for Payment, the Architect/Engineer, accompanied by the
Owner's representative, will promptly make final inspection and, when the Architect/Engineer
finds the Work acceptable under the Contract Documents and the Contract Documents fully
performed, the Architect/Engineer will promptly issue a final Certificate for Payment stating that
to the best of the Architect/Engineer's knowledge, information and belief, and on the basis of the
Architect/Engineer's observations and inspections, the Work has been completed in accordance
with terms and conditions of the Contract Documents and that the entire balance found to be due
the Contractor and noted in said final Certificate is due and payable. The Architect/Engineer's
final Certificate for Payment will constitute a further representation that conditions listed in
Subparagraph 9.9(b) as a condition precedent to the Contractor's being entitled to final payment
have been fulfilled. Owner will normally make final payment within thirty (30) days after
Owner's receipt and approval of the final Certificate for Payment. Warranties required by the
Contract Documents shall commence on the date of Substantial Completion of the Work, unless
otherwise provided by separate agreement between the Owner and the Contractor.
(b) Neither final payment nor any remaining retained percentage shall become due until the
Contractor submits to the Architect/Engineer:
(1) an affidavit that payrolls, bills for materials and equipment; and other indebtedness connected
with the Work for which the Owner or the Owner's property might be responsible or
encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied;
(2) a certificate evidencing that insurance required by the Contract Documents to remain in force
after final payment is currently in effect and will not be cancelled or allowed to expire until
at least thirty (30) days prior written notice has been given to the Owner;
(3) a written statement that the Contractor knows of no substantial reason that the insurance will
not be renewable to cover the period required by Contract Documents
(4) a consent of surety to final payment; and
(5) if required by the Owner, other data establishingpayment or satisfaction of obligations, such
as receipts, releases and waivers of liens, claims, security interests or encumbrances arising
out of the Contract, to the extent and in such form as may be designated by the Owner.
(c) As a'precondition to final payment by the Owner under this Contract, the Contractor's affidavit
under Clause (b)(1) shall state that the Contractor has paid each of his subcontractors, laborers or
rnaterialmen 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 materialrnen in
full, the Contractor shall state in the affidavit the amount owed and the name of each
subcontractor, laborer or rnaterialmen to whom such payment is owed. IN ANY EVENT, THE
CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE OWNER'S STANDARD
AFFIDAVIT OF FINAL PAYMENT AND RELEASE AS A PRECONDITION TO RECEIPT
OF FINAL PAYMENT.
(d) If after Substantial Completion of the Work, final completion of the Work is materially delayed
through no fault of Contractor or by issuance of Change Orders affecting final completion
and the Architect/Enginecr confirms the delay, the Owner shall, upon application by the
Contractor and certification by the Architect/Engineer, and without terminating the Contract,
make payment of the balance due for that portion of the Work fully completed and accepted. If
the remaining balance for Work not fully completed or corrected is less than retainage stipulated
in the Contract Documents, and if bonds have been furnished, the written consent of surety to
payment of the balance due for that portion of the Work fully completed and accepted shall be
submitted by the Contractor to the Architect/Engineer, prior to certification of payment. Payment
shall be made under terms and conditions governing final payment, except that it shall not
constitute a waiver of claims.
(e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete
release of the Owner from all claims or liabilities under the Contract, for anything done or
furnished or relating to the Work or the Project, or for any act or neglect of the Owner relating to
or connected with the Work or the Project.
ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL
COMPLIANCE
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions
and prograrris in connection with the performance of the Contract, and will comply with all
applicable City, County, State and Federal health and safety regulations.
P
# III I i'll 0 0 1 0 8
11 1,11101 11115'' 171011i
(a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to:
(1) employees on the Work and other persons who may be affected thereby;
(2) the Work and materials and equipment to be incorporated therein, whether in storage on or
off the site, under care, custody or control of the Contractor or the Contractor's
Subcontractors or Sub -subcontractors; and
(3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements,
roadways, structures and utilities not designated for removal, relocation or replacement in the
course of construction.
IWTTb-e—Contractor stiall give notices and comply wall applicable laws, or(linances, rules, regulatioNF.
and lawful orders of public authorities bearing on safety of persons or property or their
protection from damage, injury or loss.
(c) The Contractor shall erect and maintain, as required by existing conditions and performance of
the Contract, reasonable safeguards for safety and protection, including posting danger signs and
other warnings against hazards, promulgating safety regulations and notifying owners and users
of adjacent sites and utilities.
(d) When use or storage of explosives or other hazardous materials or equipment or unusual methods
are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on
such activities under supervision of properly qualified personnel.
(c) 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/Enginccr 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
Arch itect/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 tQ
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.
(0 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 • in •. by the Contractor, a Subcontractor, •
anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be
liable and • which the Contractor is 1• under Clauses 10.2(a)(2) and 10.2(a)(3), except
damage • • attributable to acts • omissions • the • • Architect/Engineer • •
directly • • employed • either of them, • • anyone for whose acts either of them
may be liable, and • attributable to the fault • negligence • the Contractor or any of its
Subcontractors. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under Paragraph 3.19. To the extent that any such damage or loss may be covered by
property insurance or other insurance required by the Contract Documents, the Owner and the
Contractor shall exercise their best efforts to make a claim and obtain recovery from the insurers
to provide for the cost, in whole or in part, of the repair work or to provide for reimbursement for
such damage or loss.
(g) The Contractor shall designate a responsible member of the Contractor's organization at the site
whose duty shall be the prevention of accidents. This person shall be the Contractor's
superintendent unless otherwise designated by the Contractor in writing to the Owner and
Architect/Engineer.
(h) The Contractor shall not load or pen -nit any part of the Work or the Project site to be loaded so as
to endanger its safety.
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.
(a) The Contractor shall place materials stored about the Work and shall conduct the Work at all
times in a manner that causes no greater obstruction to the public than is considered necessary
by the Owner. Sidewalks or streets shall not be obstructed, except by special pennission of the
Owner. The materials excavated and the construction materials or plant used in the
performance of the Work shall be placed in a manner that does not endanger the Work or
prevent free access to all fire hydrants, water mains and appurtenances, water valves, gas
valves, manholes for the telephone, telegraph signal or electric conduits, wastewater mains and
appurtenances, and fire alarm or police call boxes in the vicinity.
(b) The Owner reserves the right to remedy any neglect on the part of the Contractor in regard to
public convenience and safety which may come to the Owner's attention, after twenty-four (24)
hours notice in writing to the Contractor. In case of an emergency,the Owner shall have the
right to immediately <remedy .any neglect without notice. In either case, the cost of any work
done by the Owner to remedy the Contractor's neglect shall be deducted from the Contract
Sutra 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 forcrossingover ditches or around structures, the Contractor's
responsibility for accidents shall include the roadway approaches as well as the crossing
structures.
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 watclunen, 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 ofbarricades, 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 watclunen, shall not cease until the Project has been finally accepted by the Owner.
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 confonn 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;te'nporary
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 FORTHE PROJECT
(a) When the Contractor desires to use the Owner's water in connection with the Work, the
Contractor shall make complete and satisfactory arrangements with the Denton WaterUtilities
Department and shall be responsible for the cost of the water the Contractor uses. Where meters
are used, the charge will be at the regular established rate; where no meters are used, the charge
will be as prescribed by City ordinance, or where no ordinance applies, payment shall be based
on estimates made by the Denton Water Utilities Department.
(b) The Contractor shall make complete and satisfactory arrangements for electricity and metered
electrical connections with the Owner or with Denton Municipal Electric in the event that
separately metered electrical connections are required for the Project. The Contractor shall pay
for all electricity used in the performance of the Work through separate metered electrical
connections obtained by the Contractor through the City of Denton.
10.9 USE OF FIRE HYDRANTS
The Contractor, Subcontractors, and any other person working on the Project shall not open, turn
oft, 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.
(a) The Contractor and its Subcontractors are deemed to have made themselves familiar with and
at all times shall comply with all applicable federal, state or local laws, rules, regulations,
ordinances, and rules of common law now in effect (including any amendments now in
effect), relating to the environment, Hazardous Substances or exposure to Hazardous
Substances, including but not limited to the Comprehensive Environmental' Response,
Compensation and Liability Act of 1980, 42 U.S.C.A. §§ 9601, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C.A. §§ 1801, et seq.; the Resource Conservation and
Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the Federal Water Pollution Control
Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control Act, 15 U.S.C.A. §§ 2601, et
seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe Drinking Water Act, 42
U.S.C.A. §§ 3808, et seq., and any current judicial or administrative interpretation of these
laws, rules, regulations, ordinances, or rules of common law, including but not limited to any
judicial or administrative order, consent decree, or judgment affecting the Project.
(b) In the event the Contractor encounters on the site materials reasonably believed to be a
Hazardous Substance that have not been rendered harmless, and removal of such materials is
not a part of the scope of Work required under the Contract Documents, the Contractor shall
immediately stop Work in the affected area and report in writing the facts of such encounter
to the Architect/Enginecr and the Owner. Work in the affected area shall not thereafter be
resumed except by written order of the Owner unless and until the material is determined not
to be a Hazardous Substance or the Hazardous Substance is remediated. The Owner may
choose to remediate the Hazardous Substance with a separate contractor or through a Change
Order with the Contractor. If the Owner determines that the Hazardous Substance exists in
the affected area due to the fault or negligence of the Contractor or any of its Subcontractors,
the Contractor shall be responsible for remediating the condition at the sole expense of the
Contractor in accordance with the Contractor's APPROVED Spill Remediation Plan. An
extension of the Contract Time for any delay in the progress schedule caused as a result of
the discovery and remediation of a Hazardous Substance may be granted by the Owner only
if all remaining Work on the Project must be suspended and the delay cannot be made up
elsewhere in the progress schedule. Any request for an extension of the Contract Time
related to the discovery and remediation of a Hazardous Substance is subject to the
provisions of Paragraph 4.3 and Article 8.
(c) The Contractor shall be responsible for identification, abatement, cleanup, control, removal,
remediation, and disposal of any Hazardous Substance brought into or upon the site by the
Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and all permits
necessary for the legal and proper handling, transportation, and disposal of the Hazardous
Substance and shall, prior to undertaking any abatement, cleanup, control, removal,
rei-nediation,'and disposal, notify the Owner and the Architect/Engineer so that they may
observe the activities; provided, however, that it shall be the Contractor's sole responsibility
to comply with all applicable laws, rules, regulations, or ordinances governing the activities.
(d) Spill Prevention Plan. At least seventy-two (72) hours prior to commencing perfon-nance 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 ail applicable safety standards, fire prevention regulations, and pollution
prevention policies and procedures. The SPRP shall include estimates of the quantity and rate
of flow should equipment fail, and detail containment or diversionary structures to prevent
spills from leaving the site or migrating into adjacent properties or navigable waters. The
SPRP shall include methods of recovery of spilled materials and all applicable twenty-four
(24) hour emergency phone numbers, including without limitation that of the Owner's
Project Manager or other designated representative, The Contractor shall not commence any
field work prior to approval of such plan by the Owner. The following additional rules shall
apply with respect to spills caused by the Contractor or a Subcontractor:
(1) The Contractor shall immediately report any spill or release at the Project site, whether or
not it is associated with this Contract, to the Owner's Project Manager or other
designated representative. Thereafter, within two (2) working days after the occurrence of
such event, the Contractor shall submit a written report describing such event in a degree
of detail reasonably acceptable; to the Owner.
(2) The Contractorshall immediately respond in accordance with the SPRP in the event, of a
spill.
(3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas
Commission on Environmental' Quality (TCEQ) regulation's and any other applicable
federal, state, or local laws, rules, or regulations. In connection with such disposals, the
Contractor shall use only those transporters and disposal facilities that are approved in
advance in writing by the Owner. A copy .of,all transport manifests for the spilled
materials shall be obtained and retained in the Contractor's records for reference
purposes, to be provided upon request of the Architect/Engineer, the Owner, or any
governmental regulatory agency with jurisdiction over the matter. ALL COSTS OF
COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED MATERIALS
SHALL BE THE SOLE RESPONSIBILITY OF THE CONTRACTOR.
(4) For purposes of this Subparagraph (e), the term "spill" includes any kind of
environmental discharge or release.
(e) Clean Air Management Plan. The Contractorshallcomply 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.
(t) The Contractor shall deposit surplus or waste excavation or other materials removed as part
of the Work at a legal disposal site in accordance with all applicable state, federal, and local
laws, rules, regulations, and ordinances. The Contractor shall submit to the Owner for review
and approval all planned disposal sites or proposed uses for the surplus or waste excavation
or other materials prior to removal of any excavation or other material from the Project site.
A copy of all transport manifests for surplus or waste excavation or other materials shall be
obtained and retained in the Contractor's records for reference purposes, to be provided upon
request to the Architect/Engineer, the Owner, or any governmental regulatory agency with
jurisdiction over the matter.
(g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ
for construction of the Project under regulations contained in 40 CFR Part 122, as amended,
pursuant to the Clean Water Act, 33 U.S.C..A. §§1251 et seq. These regulations require the
filing of a notice of intent to obtain and abide by the general storm water permit for
construction activities promulgated by EPA, including but not limited to cleaning, grading,
and excavation that disturb the applicable amount of total land area. In addition, the
Contractor shall comply with all regulations of the Owner relating to storm water and storm
water runoff management at the Project site pursuant to Chapter 19,Article IX, Denton City
Code, as amended.
(h) The Contractor shall not install any materials in the performance of the Work that contain
asbestos or asbestos -related material such as hydrated mineral silicate, including chrysolite,
amosite,,crocidolite, tremolite, anthophylite or°actinolite, whether friable or non -friable.
(1) The Owner reserves the right in its sole option to exercise the IbIlowing remedies (without
waiving the right to pursue the imposition of any civil or criminal fines or penalties that may
be imposed understate, federal, or local laws or ordinances), at no additional cost to the
Owner and without an extension of the Contract Time, in the event the Contractor fails or
refuses after seven (7) days advance written notice from the Owner to comply with the
provisions of this Paragraph 10.10, the terms of the SPRP,'the terms of the Clean Air
Management Plan, any storm water permit or other environmental permit issued in
connection with the Work, or any applicable environmental law, rule, regulation, or
ordinance:
(1) suspend all or any portion of the Work until the noncompliance is corrected, or until a
detailed plan to achieve compliance within a reasonably prompt period of time is
prepared by the Contractor and approved by the Owner;
(2) if the Contractor fails to properly address the noncompliance within the time stipulated
by the Owner, perform the necessary remediation or correction work and backcharge the
Contractor for the cost of the remediation or correction; or
(3) terminate the Contract for cause as provided in Article 13.
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
HMIUsid 113 " '
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
1 NJJ V.11041i ' • C / 1
(a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and
delivery of the Construction Services Agreement, furnish and file with the Owner in the amounts
required in this Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which
surety bonds shall be in accordance with the Charter of the City of Denton and the provisions of
Chapter 2253, Texas Government Code, as amended-, each bond shall be signed by the
Contractor, as Principal, and by an established bonding company, as surety, meeting the
requirements of Subparagraph 1 1.3(c) and approved by the Owner. The surety bonds shall be
accompanied by an appropriate Power -of -Attorney clearly establishing the extent and limitations
of the authority of each signer to so sign:
(1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the total
Contract Sum, guaranteeing the full and faithful execution of the Work and performance of
the Contract in accordance with Plans, Specifications and all other Contract Documents,
including any Amendments thcreof, 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 oche date of final cornpletion
and acceptance of the improvements by the Owner or lesser or longer periods as may be
otherwise designated in the Contract Documents.
(2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total Contract
Sum guaranteeing the Ul and prompt payment of all claimants supplying labor or materials
in the prosecution of the Work provided for in the Contract Documents and any Amendments
thereto, and for the use and protection of each claimant.
(b) If the Contract Sum, including Owner -accepted alternates and allowances, if any, is greater than
$ 100,000, Performance in 100% of the Contract Sum are mandatory and shall be provided by th
Contractor. If the Contract Sum is greater than $50,000 but less than or equal to $100,000, only
Payment Bond in 100% of the Contract amount is mandatory; provided, however, that the
Contractor may elect to furnish a Perfon-nance 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 Coprogress
payments in accordance with these General Conditions shall be disbursed.
(c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds or
who is a party to any litigation against the Owner. All bonds shall be made and executed on the
Owner's standard forms, shall be approved by the Owner, and shall be executed by not less than
one corporate surety, that is authorized and admitted to do business in the State of Texas, is
licensed by the State of Texas to issue surety bonds, is listed in the most current United States
Department of the Treasury List of Acceptable Sureties, and is otherwise acceptable to the
Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal
venue for enforcement of each bond shall lie exclusively in Denton County, Texas. Each surety
shall designate an agent resident in Denton County, Texas to whom any requisite statutory
notices may be delivered and on whom service of process may be had in matters arising out of
the suretyship.
(d) The person or persons, partnership, company, firm, Limited Liability Company, association,
corporation, or other business entity to whom the Contract is awarded shall, within ten (10) days
after such award, sign the required Contract with the Owner and provide the necessary, surety
bonds and evidence of insurance as required under the Contract Documents. No Contract shall be
binding on the Owner until it has been approved as to form by the City Attorney, executed for
the Owner by the City Manager, the perfon-nance 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.
(c) 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(c). 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,
(a) If a portion of the Work is covered contrary to the Architect/Engineer's request onto
requirements specifically expressed in the Contract Documents, the Work must, if required in
writing by the Architect/Engineer, be uncovered for the Architect/Engineer's observation and
be replaced at the Contractor's expense without change in the Contract Time.
(b) If a portion of the Work has been covered which the Architect/Engincer 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, replacernent 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.
(a) The Contractor shall promptly correct Work rejected by the Architect/Engineer as failing to
conform to the requirements of the Contract Documents, whether observed before or after
Substantial Completion and whether or not fabricated, installed or completed. The Contractor
shall bear costs of correcting such rejected Work, including additional testing and inspections
and compensation for the Architect/Engineer's services and expenses made necessary thereby.
(b) If any of the Work is found to be defective or nonconibrining with the requirements of the
Contract Documents, the Contractor shall correct it promptly after receipt of written notice
from the Architect/Engineer or the Owner to do so unless the Owner has previously given the
Contractor a written acceptance or waiver of the defect or nonconformity. The Contractor's
obligation to correct defective or nonconforming Work remains in effect for.
(1) one year after the date of Substantial Completion of the Work or designated portion of the
Work;
(2) one year after the date for commencement of warranties established by agreement in
connection with partial occupancy under Subparagraph 9.8(a); or
(3) the stipulated duration of any applicable special warranty required by the Contract
Documents.
(c) The one-year period described in Clauses (b)(1) and (b)(2) shall be extended with respect to
portions of the Work performed, repaired, or corrected after Substantial Completion by the
period of time between Substantial Completion and the actual completion of the Work.
(d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance of
the Work and termination of this Contract. The Owner shall give notice to the Contractor
promptly alter discovery of a defective or nonconfori-ning 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
nonconfon-nities could not have been discovered through reasonable diligence by the Owner or
the Architect/Engineer at the time the Work was performed or at the time of inspection for
certification of Substantial Completion or Final Completion. The one year period also does not
relieve the Contractor from liability for any defects or deficiencies in the Work that may be
discovered after the expiration of the one year correction period.
(e) The Contractor shall remove from the Project site portions of the Work which are not in
accordance with the requirements of the Contract Documents and are neither corrected by the
Contractor nor accepted by the Owner.
(f) If the Contractor fails to correct defective or nonconforming Work within a reasonable time
after notice from the Owner or the Architect/Engineer, the Owner may correct it in accordance
with Paragraph 2.4. If the Contractor does not proceed with correction of defective or
nonconforming Work within a reasonable time fixed by written notice from the
Architect/Engineer, the Owner may remove or replace the defective or nonconformig 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 dainages that should
have been borne by the Contractor, including compensation for the Architect/Engineer's
services and expenses made necessary as a result of the sale. If the proceeds of sale do not
cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the
deficiency. If payments due to the Contractor then or thereafter are not sufficient to cover the
deficiency, the Contractor shall pay the difference to the Owner.
(g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the
Owner or separate mritractors, whether the construction is completed or partially completed,
that is caused by the Contractor's correction or removal of Work which is not in accordance
with the requirements of the Contract Documents.
(h) Nothing contained in this Paragraph 12,2 shall be construed to establish a period of limitation
with respect to other obligations which the Contractor might have under the Contract
Documents. Establishment of the one-year time period as described in Subparagraph 12.2(b)
relates only to the specific obligation of the Contractor to correct the Work, and has no
relationship to the time within which the obligation to comply with the Contract Documents
may be sought to be enforced, nor to the time within which proceedings may be commenced to
establish the Contractor's liability with respect to the Contractor's obligations other than
specifically to correct the Work.
(i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the provisions of
Article 12 to the same extent as Work originally performed or installed.
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 hasbeen finally completed, the final inspection is
made by the Arebitect/Engineer, and final acceptance and final payment is made by the Owner.
I A . I ; i ,• .• A•1 11 1 1
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 ex iration o t e
I'Law-9- ontract Documents shall remain in
effect until the corrections have been properly performed and a letter of release issued.
ilk" 0 04 90 1 Qrly I[/ ON 3VAN d II X111AVAU01 M or@] tKO&I phi
t
,a) Notwithstanding any other provision of these General Conditions, the Work or any portion of
the Work may be ten-ninated immediately by the Owner for any good cause after giving seven
(7) days ad vance written notice and opportunity to cure to the Contractor, including but not
limited to the following causes-
1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of
written notice by the Owner to commence the Work.
(2) A reasonable belief that the progress of the Work being made by the Contractor is
insufficient to complete the Work within the specified time.
(3) Failure or refusal of the Contractor to provide sufficient and proper equipment or
construction forces to properly execute the Work in a timely manner.
(4) A reasonable belief that the Contractor has abandoned the Work.
(5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise
financially unable to carry on the Work.
(6) Failure or refusal on the part of the Contractor to observe any requirements of the Contract
Documents or to comply with any written orders given by the Architect/Engineer or the
Owner as provided for in the Contract Documents.
(7) Failure or refusal of the Contractor to promptly make good any defects in materials or
workmanship, or any defects of any nature, the correction of which has been directed in
writing by the Architect/Engineer.
(8) A reasonable belief by the Owner that collusion exists or has occurred for the purpose of
illegally procuring the Contract or a Subcontractor, or that a fraud is being perpetrated on
the Owner in connection with the construction of Work under the Contract.
(9) Repeated and flagrant violation of safe working procedures.
(10) The filing by the Contractor of litigation against the Owner prior to completion of the
Work.
(b) When the Work or any portion of the Work is terminated for any of the causes itemized above
or for any other cause except termination for convenience pursuant to Subparagraph 13.3(e),
the Contractor shall, as of the date specified by the Owner, discontinue the Work or portion of
the Work as the Owner shall designate, whereupon the surety shall, within twenty (20) days
after the written notice of termination for cause has been served upon the Contractor and the
surety or its authorized agents, assume the obligations of the Contractor for the Work or that
portion of the Work which the Owner has ordered the Contractor to discontinue and may:
(1) perforrn the Work with forces employed by the surety;
(2) with the written consent of the Owner, tender a replacement contractor to take over and
perform the Work, in which event the surety shall be responsible for and pay the amount
of any costs required to be incurred for the completion of the Work that are in excess of
the amount of funds remaining under the Contract as of the time of the termination; or
(3) with the written consent of the Owner, tender and pay to the Owner in settlement the
amount of money necessary to finish the balance of uncompleted Work under the
Contract, correct existing defective or nonconforming Work, and compensate the Owner
for any other loss sustained as a result of Contractor's default.
In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall
assume the Contractor's place in all respects, and the amount of funds remaining unpaid
under the Contract shall be paid by the Owner for all Work performed by the surety or the
replacement contractor in accordance with the terms of the Contract Documents, subject to
any rights of the Owner to deduct any costs, damages, or liquidated or actual damages that
the Owner may have incurred, including but not limited to additional fees and expenses of
the Architect/Engineer and attorneys fees, as a result of such termination.
(c) The balance of the Contract Sum remaining at the time of the Contractor's default and of the
termination shall become due and payable to the surety as the Work progresses, subject to all
of the terms, covenants, and conditions of the Contract Documents. If the 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 ofthe balance of the Contract Sum for the
completion and correction of the Work, and for any other costs, damages, expenses (including
but not limited to additional fees of the Architect/Engineer and attorney's fees), and liquidated
or actual damages incurred as a result of the termination.
(d) The Owner shall not be required to obtain the lowest bid for the Work of completing the
Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from the
Contract Sum shall be the actual cost of such Work. In case the Owner's expense is less than
the sum which would have been payable under the Contract, if the same had been completed
by the Contractor, then the Owner may pay to the Contractor (or the Surety, in the event of a
complete termination for cause) the difference in the cost, provided that the Contractor (or the
Surety) shall not be entitled to any claim for damages or for loss of anticipated profits. In case
such expenses for completion shall exceed the amount which would have been payable under
the Contract ifthe .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 terns of the Contract, and in such manner as
not to hinder or interfere with the performance of workmen employed and provided by the
Owner.
(e) The right to terminate this Contract for the convenience of the Owner (including but not
limited to nonappropriation of funding) is expressly retailed 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 ofthe 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 cliarges, if any, paid by the Contractor hi 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.
(a) The Work or any portion of the Work may be temporarily suspended by the Owner
immediately upon written notice to the Contractor for any reason, including but not limited to:
(1) the causes described in Clauses 13.1 (a)(]) through (a)(I 0) above;
(2) where other provisions in the Contract Documents require or permit temporary suspension
of the Work;
(3) situations where the Work is threatened by, contributes to, or causes an immediate threat
to public health, safety, or security; or
(4) other unforeseen conditions or circumstances.
(b) The Contractor shall immediately resume the temporarily suspended Work when ordered in
writing by the Owner to do so. The Owner shall not under any circumstances be liable for any
claim of the Contractor arising from a temporary suspension due to a cause described in
Clause (a)(1) above; provided, however, that in the case of a temporary suspension for any of
the reasons described under Clauses (a)(2) through (a)(4), where the Contractor is not a
contributing cause of the suspension under one of those Clauses or where the provision of the
Contract Documents in question specifically provides that the suspension is at no cost to the
Owner, the Owner will make an equitable adjustment for the following items, provided that a
claim is properly made by the Contractor under Subparagraph 4.3 of these General
Conditions:
(1) an equitable extension of the Contract Time, not to exceed the actual delay caused by the
temporary suspension as determined by the Architect/Engineer and the Owner;
(2) an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable
costs of properly protecting any Work that is finished or partially finished during the
period of the temporary suspension (no profit and overhead shall be allowed on top of
these costs); and
(3) if it becomes necessary to move equipment from the Project site and then return it to the
Project site when the Work is ordered to be resumed, an equitable adjustment to the
Contract Sum for the actual, necessary, and reasonable cost of these moves; provided,
however, that no adjustment shall be due if the equipment is moved to another Project
site of the Owner.
(a) This Contract shall be governed by the laws and case decisions of the State of Texas, without
regard to conflict of law or choice of law principles of Texas or of any other state.
(b) This Contract is entered into subject to and controlled by the Charter and ordinances of the
City of Denton and all applicable laws, rules, and regulations of the State of Texas and the
Government of the United States of America. The Contractor shall, during the performance of
the Work, comply with all applicable City codes and ordinances, as amended, and all
applicable State and Federal laws, rules and regulations, as amended.
Ill 11111i1iiii' IMEMM
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 onto 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.
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.
(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.
IN ANY CONTRACT OF I ,, •
No officer or employee of the Owner shall have a financial interest, director 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.
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.
As a condition of this Contract, the Contractor covenants that he will take all necessary actions to
insure that, in connection with any work under this Contract, the Contractor and its Subcontractors
will not discriminate in the treatment or employment of any individual or groups of individuals on
the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job
performance, either directly, indirectlyor 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.
(a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred,
or agreed to confer any benefit on a'City of Denton employee or official that the City of
Denton employee or official is prohibited bylaw from accepting.
(b) For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain
or pecuniary advantage, including benefit to any other person in whose welfare the
beneficiary has a direct or substantial interest, but does not include a contribution or
expenditure made and reported in accordance with law,
(c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove
any employee of the Contractor from the Project who has violated the restrictions of this
Article or any similar State or Federal law, and obtain reimbursement for any expenditures
made to the Contractor as a result of the improper offer, agreement to confer, or confer -ring of
a benefit to a City of Denton employee or official.
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 fora 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.
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.
City of Dentoin
Contract Term
It is the intention of the City of Denton to award a contract for construction of the project as described in the
drawings and specifications. Materials and services undertaken pursuant to this RFP will be required to
commence within fourteen (14) days of delivery of a Notice to Proceed, The services shall be
accomplished per the Scope of Work as identified in Section III, the Procurement Process and Procedures
as outlined in Section 11, and shall conform to the requirements contained in the Technical Specification in
Exhibit 2., and Technical Drawings in Exhibit 3.
The Contract shall commence upon the issuance of a Notice to Proceed by the City of Denton and shall
automatically expire upon completion of the work and acceptance by the City of Denton.
Pricing
Only firm, lump sum pricing with no escalation will be accepted for this project.
Price ,Adjustn'tepts
Price adjustments will not be allowed for this project unless a change in scope is approved that increases
or decreases the amount of work required.
Requests or proposals for changes in scope must be submitted in writing with documentation that
provides justification for the change and supporting evidence that describes the basis for the cost change.
Upon receipt of such request, the City of Denton reserves the right to either: accept the proposed change
as competitive with the general market price at the time and issue appropriate authorizations or reject the
increases within 30 calendar days after receipt of a properly submitted request. No work shall be
undertaken on a proposed change until authorized by the City of Denton in the form of a Purchase Order
change and/or other documentation appropriate to amending the contract.
The request can be sent by e-mail to:
Or mail to:
City of Denton
Attn: Purchasing Manager
RFP # 5687
901 B Texas Street
Denton, Texas 76209
Or call:
City of Denton Purchasing
(940) 349-7100
The City of Denton reserves the right to accept, reject, or negotiate any proposed price changes.
Quaptities
The quantities indicated on the drawings and in the Technical Specification are believed to be accurate
but shall be considered only as estimates. The project requires complete and functional construction of
the substation perimeter fence in accordance with the dimensions presented on the project documents.
Differences between the quantities of material required and the estimated quantities will not be
considered as basis for a change in the price for the project. In submitting a proposal, the proposer is
stating that he has reviewed the project drawings and specifications and understands their intent and has
checked the quantities and dimension and is asserting that the proposal is intended to account for all
conditions and quantities to complete the project as described in the plans and specification.
Substitutions
Substitutions are not ;permitted without the written approval of the City of Denton Purchasing
Department. For substitutions prior to the proposal deadline, this will be accomplished with a submittal
to the Architect/Engineer, and approval by the City representative, and issuance of a written addendum.
For substitutions after contract award, this will be accomplished with a submittal request to the
Architect/Engineer, and approval by the City representative, and issuance of a written contract change
order.
Product Changes burin 1 Contract Tenn
The supplier shall not change specifications during the contract terin without prior approval. Any
deviation in the specifications or change in the product must be approved in advance by the City of
Denton. Notice of a change shall be submitted in writing to the Project' Manager with the RFP number
in the subject line, for review. Products found to have changed specifications without notification, and
acceptance, will be rejected and must be removed from the site at the supplier's expense. Products that
have been installed shall be replaced at the supplier's expense.
Patent Rights
The contractor agrees to indemnify and hold harmless the City from any claim involving patent right
infringement or copyrights on goods supplied.
Asbestos Free Materials
The contractor shall provide asbestos -free materials as represented by the Manufacturer's "Materials
Safety Data Sheets"
Rights to Data. Documents, a��+d Cor p to Software jjovernment It',jttity� +f wnership)
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 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.
Adding New Products or Services to the Contract after Award
Following the Contract award, ADDITIONAL services 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 to provide a proposal on the additional
services and shall submit proposal to the City as instructed. All submitted prices are subject to
negotiation in accordance with Texas Government Code 2254. The City may accept or reject the
proposal, and may issue a separate RFQ for the services requested, after rejecting some, or all, of the
proposal. The 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.
Samples
Respondents must make samples available in accordance with the specification and upon request by the
Cityof Denton prior to award with no costs to the City.
Venue
This agreement shall be governed by the law of the State of Texas and venue for its construction and
enforcement shall lie in the courts of Denton County, Texas.
Silence of S eclficaxtiorts
The apparent silence of these specifications as to any detail or the apparent omission from it of 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.
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
1tI . v a . t tvhd� rtr€ c t cl r d i 3 a and at the Wage Deternunations website v A� L.x o act ° 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".
Special Permitting eguirenients
The awarded contractor shall work with identified City staff to obtain the necessary permits for
construction of the project.
Successful awarded contractor will be required to sign original contract and "submit a performance and
payment bonds for 100 percent of the total proposal submitted 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.
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.
,DAVIS BACON COMPLIANCE REQUIREMENTS
The Contractor shall comply with the requirements of the Davis -Bacon Wage Act and the Wage Rate
Requirements under Section 1606 of the Recovery and Reinvestment Act (the Act) and shall indemnify
the City from =liability for any failure to pay wages in compliance with the Act. The contractor shall
ensure that all laborers and mechanics employed in the performance of the project for which the
assistance is provided, including those employed by subcontractors, are paid wages at rates not less than
those prevailing on similar work in the locality as determined by the Secretary of Labor in accordance
with subchapter IV of chapter 31 of title 40, United States Code (commonly refmed to as the 'Davis -
Bacon Act'). The bidder who is awarded the Contract shall pay the wage rate in effect as of the date the
Contract is awarded. The Contractor shall cooperate with the City by providing information in the form
and frequency requested by the City concerning the type of work performed, the number of hours
worked, and the hourly rates paid for the various types of work performed by all workers on the Project.
The Contractor shall allow City staff to conduct on -site wage interviews and shall post information
concerning the Act as requested by the City.
All contractors and subcontractors must comply with Davis -Bacon Wage Rates and the Wage Rate
Requirements of Section 1606 of the Recovery and Reinvestment Act.
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Note: Where necessary to make the context of these articles applicable to this award, the term
"Contractor" shall mean "Recipient" and the term "Subcontractor" shall mean "Subrecipient or
Subcontractor" per the following definitions.
Recijfienl means the organization, individual, or other entity that receives an award from DOE and is
financially accountable for the use of any DOE funds or property provided for the performance of the
project, and is legally responsible for carrying out the terms and conditions of the award.
Subre,cil,Venf means the legal entity to which a subaward is made and which is accountable to the
recipient for the use of the funds provided. The term may include foreign or international organizations
(such as agencies of the United Nations).
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(a) Definition.—"Sitc of the work"—
(1) Means--
(i) The primary site of the work. The physical place or places where the construction called
for in the award will remain when work on it is completed; and
(ii) The secondary site of the work, if any. Any other site where a significant portion of the
building or work is constructed, provided that such site is —
(A) Located in the United States; and
(B) Established specifically for the performance of the award or project;
(2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile
factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided—
(i) They are dedicated exclusively, or nearly so, to performance of the award or project; and
(ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in
paragraph (a)(l)(i), or the "secondary site of the work" as defined in ,paragraph (a)(1)(ii)
of this definition;
(3) Does not include pennanent home offices, branch plant establishments, fabrication plants, or
tool yards of a Contractor or subcontractor whose locations and continuance in operation are
determined wholly without regard to a particular Federal award or project. In addition,
fabrication plants, batch plants, borrow pits, job headquarters, yards, etc., of a commercial or
material supplier which are established by a supplier of materials for the project 'before
opening of bids and not on the Project site, are not included in the "site of the work." Such
permanent, previously established facilities are not a part of the "site of the work" even if the
operations for a period of time may be dedicated exclusively or nearly so, to the performance
of a award.
(b) (1) All laborers and mechanics employed or working upon the site of the work will be paid
unconditionally and not -less often than once a week, and without subsequent deduction or
rebate on any account (except such payroll deductions as are permitted by regulations issued
by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages
and bona fide fringe benefits (or cash equivalents ,thereof) due at time of payment computed
at rates not less than those contained in the wage determination of the Secretary of Labor
which is attached hereto and made a part hereof, or as may be incorporated for a secondary
site of the work, regardless of any contractual relationship which may be alleged to exist
between the Contractor and such laborers and mechanics. Any wage determination
incorporated for a secondary site of the work shall be effective from the first day on which
work under the award was performed at that site and shall be incorporated without any
adjustment in award price or estimated cost. Laborers employed by the construction
Contractor or construction subcontractor that are transporting portions of the building or
work between the secondary site of the work and the primary site of the work shall be paid in
accordance with the wage determination applicable to the primary site of the work.
(2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under
section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered
wages paid to such laborers or iechanics, subject to the provisions of paragraph (e) of this
article; also, regular contributions made or costs incurred for more than a weekly period (but
not less often than quarterly) under plans, funds, or programs which cover the particular
weekly period, are deemed to be constructively made or incurred during such period.
(3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe
benefits in the wage detennination for the classification of work actually performed, without
regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers
or mechanics perforining work in more than one classification may be compensated at the
rate specified for each classification for the time actually worked therein; provided, that the
employer's payroll records accurately set forth the time spent in each classification in which
work is perfomed.
(4) The wage determination (including any additional classifications and wage rates conformed
under paragraph (c) of this article) and the Davis -Bacon poster (WH-1321) shall be posted at
all times by the Contractor and its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers.
(c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not
listed in the wage determination and which is to be employed under the award shall be
classified in conformance with ;the wage determination. The Contracting Officer shall
approve an additional classification and wage rate and fringe benefits therefore only when all
the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a
classification in the wage determination.
(ii) The classification is utilized in the area by the construction industry.
(iii)The proposed wage rate, including any bona fide fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage detennination.
(2) If the Contractor and the laborers and mechanics to be employed in the classification (if
known), or their representatives and the Contracting Officer agree on the classification and
wage rate (including the amount designated for: fringe benefits, where appropriate), a report
of the action taken shall be sent by the Contracting Officer to the Administrator of the:
Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor
Washington, DC 20210
The Administrator or an authorized representative will approve, modify, or disapprove every
additional classification action within 30 days of receipt and so advise the Contracting
Officer or will notify the Contracting 'Officer within the 30-day period that additional time is
necessary.
(3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or
their representatives, and the Contracting Officer do not agree on the proposed classification
and wage rate (including the amount designated for fringe benefits, where appropriate), the
Contracting Officer shall refer the questions, including the views of all interested parties and
the recoirunendation of the Contracting Officer, to the Administrator of the Wage and Hour
Division for determination. The Administrator, or an authorized representative,will issue a
determination within 30:days of receipt and so advise the Contracting Officer or will notify
the Contracting Officer within the 30-dayperiod that additional time is necessary.
(4) The wage rate (including fringe benefits, where appropriate) determined pursuant - to
subparagraphs (c)(2) and'(c)(3) of this article shall be paid to all workersperforming work in
the classification under this award from the first-day on which work is performed in the
classification.
(d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics
includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay
the benefit as stated in the wage deten-nination or shall pay another bona fide fringe benefit or an
hourly cash equivalent thereoE
(e) If the Contractor does not make payments to a trustee or other third person, the Contractor may
consider as part of the wages of any laborer or mechanic the amount of any costs reasonably
anticipated in providing bona fide fringe benefits under a plan or program; provided, that the
Secretary of Labor has found, upon the written request of the Contractor, that the applicable
standards of the Davis -Bacon Act have been net. The Secretary of Labor may require the
Contractor to set aside in a separate account assets tbr the meeting of obligations under the plan
or program.
Rates of Wages
The unimmum wages to be paid laborers and mechanics under this award involved in performance of
work at the project site, as detennined by the Secretary of Labor to be prevailing for the corresponding
classes of laborers and mechanics employed on projects of a character similar to the contract work in the
pertinent locality, are included as an attachment to this award. These wage rates are minimum rates and
are not intended to represent the actual wage rates that the Contractor may have to pay.
(a) Payrolls and basic records relating thereto shall be maintained by the Contractor during the
course of the work and preserved for a period of 3 years thereafter for all laborers and mechanics
working at the site of the work. Such records shall contain the name, address, and last 4 digits of
the social security number of each such worker, his or her correct classification, hourly rates of
wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or
cash equivalents thereof of the types described in section I(b) (2) (B) of the Davis -Bacon Act),
daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever
the Secretary of Labor has found, under paragraph (d) of the article entitled Davis -Bacon Act,
that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated
in providing benefits under a plan or program described in section I(b)(2)(B) of the Davis -Bacon
Act, the Contractor shall maintain records which show that the commitment to provide such
benefits is enforceable, that the plan or program is financially responsible, and that the plan or
program has been communicated in writing to the laborers or mechanics affected, and records
which show the costs anticipated or the actual cost incurred in providing such benefits.
Contractors employing apprentices or trainees under approved programs shall maintain written
evidence of the registration of apprenticeship programs and certification of trainee programs, the
registration of the apprentices and trainees, and the ratios and wage rates prescribed in the
applicable programs.
(b) (1) The Contractor shall submit weekly for each week in which any award work is performed a copy
of all payrolls to the Contracting Officer. The payrolls submitted shall set out accurately and
completely all of the information required to be maintained under paragraph (a) of this article.
This information may be submitted in any form desired. Optional Form WH-347 (Federal Stock
Number 029-005-00014-1) is available for this purpose and may be purchased from the --
Superintendent of Documents U.S. Government Printing Office Washington, DC 20402
The Prime Contractor is responsible for the submission of copies of payrolls by all
Ems=
(2) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the
Contractor or subcontractor or his or her agent who pays or supervises the payment of the
persons employed under the award and shall certify—
.. • or mechanic (including each helper, apprentice, and trainee) employed on
the award during the payroll period has been paid the full weekly wages earned, without
rebate, either directly or indirectly, and that no deductions have been made either directly or
indirectly from the full wages earned, other than permissible deductions as set forth in the
Regulations, 29 CFR Part 3; and
(iii)That each laborer or mechanic has been paid not less than the applicable wage rates and
fringe benefits or cash equivalents fbr the classification of work performed, as specified in
the applicable wage determination incorporated into the award.
(3) The weekly submission of a properly executed certification set forth on the reverse side
Optional Form WH-347 shall satisfy the requirement for submission of the "Statement
Compliance" required by subparagraph (b)(2) of this article.
(4) The falsification of any of the certifications in this article may subject the Contractor or
subcontractor to civil or criminal prosecution under Section 1001 of Title IS and Section 3729 of
Title 31 of the United States Code.
f
,c) The Contractor or subcontractor shall make the records required under paragraph (a) of this article
available for inspection, copying, or transcription by the Contracting Officer or authorized
representatives of the Contracting Officer or the Department of Labor. The Contractor or
subcontractor shall permit the Contracting Officer or representatives of the Contracting Officer or
the Department of Labor to interview employees during working hours on the job. If the Contractor
or subcontractor fails to submit required records or to make them available, the Contracting Officer
may, after written notice to the Contractor, take such action as may be necessary to cause the
suspension of any further payment. Furthenriore, failure to submit the required records upon request
or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
Withholding of Funds
The Contracting Officer shall, upon his or her own action or upon written request of an authorized
representative of the Department of Labor, withhold or cause to be withheld from the Contractor under
this award or any other Federal award with the same Prime Contractor, or any other federally assisted
award subject to Davis -Bacon prevailing wage requirements, which is held by the same Prime
Contrador, so much of the accrued payments or advances 'as may be considered necessary to pay
laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any
subcontractor the full amount of wages required by the award. In the event of failure to pay any laborer
or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work,
all or pail of the wages required by the award, the Contracting Officer may, after written notice to the
Contractor, take such action as may be necessary to cause the suspension of any further payment,
advance, or guarantee of funds until such violations have ceased.
Apprentices and Trainees
(a) Apprentices.
(1) An apprentice will be permitted to work at less than the predetermined rate for the work they
performed when they are employed—
(i) Pursuant to and individually registered in a bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment and Training Administration, Office of
Apprenticeship and Training, Employer, and Labor Services (OATELS) or with a State
Apprenticeship Agency recognized by the OATELS; or
(ii) In the first 90 days of probationary employment as an apprentice in such an
apprenticeship program, even though not individually registered in the program, if
certified by the OATELS or a State Apprenticeship Agency (where appropriate) to be
eligible for probationary employment as an apprentice.
(2) The allowable ratio of apprentices to journeymen on the job site in any craft classification
shall not be greater than the ratio permitted to the Contractor as to the entire work force
under the registered program.
(3) Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise
employed as stated in paragraph (a)(]) of this article, shall be paid not less than the
applicable wage determination for the classification of work actually performed. In addition,
any apprentice performing work on the job site in excess of the ratio permitted under the
registered program shall be paid not less than the applicable wage rate on the wage
determination for the work actually performed.
(4) Where a contractor is performing construction on a project in`a locality other than that in
which its program is registered, the ratios and wage rates (expressed' in percentages of the
journeyman's hourly rate) specified in the Contractor's or subcontractor's registered program
shall be observed. Every apprentice must be paid at not less than the rate specified in the
registered program for the apprentice's level of progress, expressed as a percentage of the
journeyman hourly rate specified in the applicable wage determination.
(5) Apprentices shall be paid fringe benefits in accordance with the provisions of the
apprenticeship program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the wage determination
for the applicable classification. If the Administrator determines that a different practice
prevails for the applicable apprentice classification, fringes shall be paid in accordance with
that determination.
(6) in the event OATELS, or a State Apprenticeship Agency recognized by OATELS, withdraws
approval pproval of an apprenticestiip program, the Contractor'will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(b) Trainees.
(1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval, evidenced by formal
certification by the U.S. Department of Labor, Employment and Training Administration,
Office of Apprenticeship Training, Employer, and Labor Services (OATELS). The ratio of
trainees to journeymen on the job site shall not be greater than permitted under the plan
approved by OATELS.
(2) Every trainee must be paid at not less than the rate specified in the approved program for the
trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified
in the applicable wage deten-nination. Trainees shall be paid fringe benefits in accordance
with the provisions of the trainee program. If the trainee program does not mention fringe
benefits, trainees shall be paid the full amount of fringe benefits listed in the wage
determination unless the Administrator of the Wage and Hour Division determines that there
is an apprenticeship program associated with the corresponding journeyman wage rate in the
wage determination which provides for less than full fringe benefits for apprentices. Any
employee listed on the payroll at a trainee rate that is not registered and participating in a
training plan approved by the OATELS shall be paid not less than the applicable wage rate in
the wage determination for the classification of work actually performed. In addition, any
trainee performing work on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate in the wage determination for the
work actually performed.
(3) In the event OATELS withdraws approval of a training program the Contractor will no
longer be permitted to utilize trainees at less than the applicable predetermined rate for the
work performed until an acceptable program is approved.
(4) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen
under this article shall be in conformity with the equal employment opportunity
requirements of Executive Order 11246, as amended and 29 CFR Part 30.
The Contractor shall comply with the requirements of 29 CFR Part 3, which are hereby incorporated by
reference in this award.
Subcontracts (Labor Standards)
(a) Definition. "Construction, alteration or repair," as used in this article means all types of work
done by laborers and mechanics employed by the construction Contractor or construction
subcontractor on a particular building or work at the site thereof, including without limitation—
(1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated
off -site;
(2) Painting and decorating;
(3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the
building or work;
(4) Transportation of materials and supplies between the site of the work within the meaning of
paragraphs (a)(1)(i) and (ii) of the "site of the work" as defined in the article entitled Davis
Bacon Act of this award, and a facility which is dedicated to the construction of the building
or work and is deemed pact of the site of the work within the meaning of paragraph (2) of the
"site of work" definition; and
(5) Transportation of portions of the building or work between a secondary site where a
significant portion of the building or work is constructed, which is part of the "site of the
work" definition in paragraph (a) (1) (ii) of the Davis -Bacon Act article, and the physical
place or places where the building or work will remain (paragraph (a) (1) (i) of the Davis
Bacon Act article, in the "site of the work" definition).
(b) The Contractor or subcontractor shall insert in any subcontracts for construction, alterations and
repairs within the United States the articles entitled—
(1) Davis -Bacon Act;
(2) Contract Work Hours and Safety Standards Act -- Overtime Compensation (if the article is
included in this award);
(3) Apprentices and Trainees;
(4) Payrolls and Basic Records;
(5) Compliance with Copeland Act Requirements;
(6) Withholding of Funds;
(7) Subcontracts (Labor Standards);
(8) Contract Termination — Debarment;
(9) Disputes Concerning Labor Standards;
(10) Compliance with Davis -Bacon and Related Act Regulations; and
(11) Certification of Eligibility.
(c) The Prime Contractor shall be responsible for compliance by any subcontractor or lower tier
subcontractor performing construction within the United States with all the award articles cited
in paragraph (b).
(d) (1) Within 14 days after issuance of the award, the Contractor shall deliver to the Contracting
Officer a completed Standard Form (SF) 1413, Statement and Acknowledgment, for each
subcofitract for construction within the United States, including the subcontractor's signed
and dated acknowledgment that the articles set forth in paragraph (b) of this article have
been included in the subcontract.
Within 14 days after the award of any subsequently awarded subcontract the Contractor
shall deliver to the Contracting Officer an updated completed SF 1413 for such additional
subcontract.
(c) The Contractor shall insert the substance of this article, including this paragraph (e) in all
subcontracts for construction within the United States.
Contract Termination -- Debarment
A breach of the award articles entitled Davis -Bacon Act, Contract Work Hours and Safety Standards Act
-- Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with
Copeland Act Requirements, Subcontracts (Labor Standards), Compliance with Davis -Bacon and
Related Act Regulations, or Certification of Eligibility may be grounds for termination of the whole
award or in part for the Recovery Act covered work only, and for debarment as a Contractor and
subcontractor as provided in 29 CFR 5.12.
Compliance with Davis -Bacon and Related Act Regulations
All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and
5 are hereby incorporated by reference in this award.
Disputes Concerning Labor Standards
The United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 procedures for
resolving disputes concerning labor standards requirements. Such disputes shall be resolved in
accordance with those procedures and not the Disputes and Appeals as defined in 10 CFR 600.22.
Disputes within the meaning of this article include disputes between the Contractor (and any of its
subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their
representatives.
Certification of Eligibility
(a) By entering into this award, the Contractor certifies that neither it (nor he or she) nor any person
or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded
Government awards by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(b) No part of this award shall be subcontracted to any person or firm ineligible for award of a
Government award by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(I)-
(c) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
All straight time wage rates, and overtime rates based thereon, for laborers and mechanics engaged in
work under this award must be submitted for approval in writing by the head of the contracting activity
or a representative expressly designated for this purpose, if the straight time wages exceed the rates for
corresponding classifications contained in the applicable Davis-Bac'on Act minimum wage
determination included in the award. Any amount paid by the Contractor to any laborer or mechanic in
excess of the agency approved wage rate shall be at the expense of the Contractor and shall not be
reimbursed by the Government. If the Government refuses to authorize the use of the overtime, the
Contractor is not released from the obligation to pay employees at the required overtime rates for any
overtime actually worked.
BUY AMERICAN ACT COMPLIANCERE WENTS
QUIRF
The Contractor acknowledges to and for the benefit of the City of Denton that it understands the goods
and services under this Agreement are being funded with monies made available by the American
Reinvestment and Recovery Act of 2009 (Recovery Act) (or are being made available for a project being
funded with monies made available by the Recovery Act) and section 1605 of such law contains
provisions commonly known as "Buy American." The Buy American requirement prohibits the use of
Recovery Act funds for a project for the construction, alteration, maintenance, or repair of a public
building or public work unless all of the iron, steel, and manufactured goods used in the project are
produced in the United States ("Buy American requirement") including iron, steel, and manufactured
goods provided by the Contractor pursuant to this Agreement. The Contractor hereby represents and
warrants to and for the benefit of the Department of Energy (DOE) grantee that (a) the Contractor has
reviewed and understands the Buy American requirement, (b) all of the iron, steel, and manufactured
goods used in the project will be and/or have been produced in the United States in a manner that
complies with the Buy American requirement, unless an exception to the requirement is approved, and
(c) the Contractor will provide any further verified information, certification or assurance of compliance
with this paragraph, or information necessary to support an exception to the Buy American requirement,
as may be requested by the DOE grantee or DOE. Notwithstanding any other provision of this
Agreement, any failure to comply with this paragraph by the Contractor shall permit the DOE grantee to
recover as damages against the Contractor any loss, expense or cost (including without limitation
attorney's fees) incurred by the DOE grantee resulting from any such failure (including without
limitation any impairment or loss of funding, whether in whole or in part from DOE). Neither this
paragraph (nor any provision of this Agreement necessary to give this paragraph force or effect) shall be
amended or waived without the prior written consent of the DOE grantee.
9-11--
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS --
SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
(MAY 2009)
1174 137 7 17 7
a. Definitions. As used in this award term and condition--
(1) Manufactured good means a good brought to the construction site for incorporation into the
building or work that has been—
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than
the properties of the individual raw materials.
(2) Public building and public work means a public building of, and a public work of, a
governmental entity (the United States; the District of Columbia-, commonwealths, territories,
and minor outlying islands of the United States; State and local governments; and multi -
State, regional, or interstate entities which have governmental functions). These buildings
and works may include, without limitation, bridges, dams, plants, highways, parkways,
streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators,
railways, airports, tenninals, docks, piers, wharves, ways, lighthouses, buoys, jetties,
breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of
such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent
carbons, and may include other elements.
b. Domestic preference.
(1) This award term and condition implements Section 1605 of the American Recovery and
Reinvestment; Act of 2009 (Recovery Act) (Pub. L. 111--5), by requiring that all 'iron, steel,
and manufactured goods used in the project are produced in the United States except as
provided in paragraph (b)(3) and (b)(4) of this section and condition.
(2) This requirement does not apply to the material listed by the Federal Government as follows:
am
[Award official to list applicable excepted materials or indicate "none"]
(3) The award official may add other iron, steel, and/or manufactured goods to the list in
paragraph (b)(2) of this section and condition if the Federal Government determines that-
(i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable.
The cost of domestic iron, steel, or manufactured goods used in the project is
unreasonable when the cumulative cost of such material will increase the cost of the
overall project by more than 25percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United
States in sufficient and reasonably available quantities and of a satisfactory quality; or
(iii)The application of the restriction of section 1605 of the Recovery Act would be
inconsistent with the public interest.
e. Request for determination of inapplicability of Section 1605 of the Recovery Act.
(1) Any recipient request to use :foreign iron, steel, and/or manufactured goods in accordance
with paragraph (b) (3) of this section shall include adequate information for Federal
Government valuation of the request, including—
(A)A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Tunc of delivery or availability;
(F) Location of the project;
(G)Name and address of the proposed supplier; and
(1I)A detailed justification of the reason for use of foreign iron, steel, avid/or manufactured
goods cited in accordance with paragraph (b) (3) of this section.
(i) A request based on unreasonable cost shall include a reasonable survey of the market
and a completed cost comparison table in the format in paragraph (d) of this section.
(ii) The cost of iron, steel, and/or manufactured goods material shall include all delivery
costs to the construction site and any applicable duty.
List
(iii)Any recipient request for a determination submitted after Recovery Act funds have been
obligated fora project for�eonstruction, alteration, maintenance, or repair shall explain
why the recipient could not reasonably foresee the need for such determinationand
could not have requested the determination before the funds were obligated. If the
recipient does not submit a satisfactory explanation, the award official need not make a
determination.
(2) If the Federal Government determines after funds have been obligated for a project for
construction, alteration, maintenance, or repair that an exception to section 1605 of the
Recovery Act applies, the award official will amend the award to allow use of the foreign
iron, steel, and/or relevant manufactured goods. When the basis for the exception is non -
availability or public interest, the amended award shall reflect 'adjustment of the award
amount, redistribution of budgeted funds, and/or other actions taken to cover costs
associated with acquiring or using the 'foreign iron, steel, and/or relevant manufactured
goods. When the basis for the exception is :the unreasonable cost of the domestic iron,
steel, or manufactured goods, the award official shall adjust the award amount or
redistribute budgeted funds by at least the differential established in 2 CFR 176,110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the
Recovery Act applies, use of foreign iron, steel, and/or , manufactured goods is
noncompliant with section 1605 of the American Recovery and Reinvestment Act.
d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable
cost, the Recipient shall include the following information and any applicable supporting data
based on the survey of suppliers:
r r Ir r r r: r
Cost
Description Unit of Measure Quantity (dollars)*
Item k
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
Item 1:
Foreign steel, iron . or manufactured good
Domestic steel, iron, or manufactured good
name,
address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response;
if oral; attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
EW,
Ffrfl• •�
KNOW ALL MEN BY THESE PRESENTS: That Ljliks Construction, 1,..,LP. whose address is
05,, Denton 525 a Indemnity S, Loop 288, Suite I Texas 76205 hereinafter called Principal, and the Ph i ladel
fn��urance Compjt , a corporation organized and existing under the laws of the State of Texas, and fully
authorized to transact business in the State of Texas, as Surety, are held and firmly bound unto the City of Denton,
a rnunicipal corporation organized and existing under the laws of the State of Texas, hereinafter called Owner, in
the penal sum of FIVE HUNDRED AND TWENTY-TWO THOUSAND, SEVEN HUNDRED AND FORTY
THREE DOLLARS AND NO CENTS ($.5?,? 7,43 00), in lawful money of the United States, to be paid in Denton
County, Texas, for the payment of which sum well and truly to be made, we hereby bind ourselves, our heirs,
executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. This Bond shall
automatically be increased by the amount of any Change Order or Supplemental Agreement, which increases the
Contract price, but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract
price, decrease the penal sum of this Bond.
THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a
certain Contract, identified by Ordinance, with the City of Denton, the Owner, dated the 2 Day (-Yt' Februar , _----'Y ..............
2016, a copy of which is hereto attached and made a part hereof, for the Construction Services stated within
Request for Proposals (RFP) #5866 — Construction of Mayhill Property Renovation Project.
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill all of the
undertakings, covenants, terms, conditions and agreements of said Contract in accordance with the Plans,
Specifications and Contract Documents during the original term thereof and any extension thereof which may be
granted by the Owner, with or without notice to the Surety, and during the life of any guaranty or warranty
required under this Contract, and shall also well and truly perform and fulfill all the undertakings, covenants,
terms, conditions and agreements of any and all duly authorized modifications of said Contract that may hereafter
be made, notice of which modifications to the Surety being hereby waived; and, if the Principal shall repair and/or
replace all defects due to faulty materials and workmanship that appear within a period of two (2) years from the
date of final completion and final acceptance of the Work by the Owner; and, if the Principal shall fully indemnify
and save harmless the Owner from all costs and damages which Owner may suffer by reason of failure to so
[merform herein and shall fully reimburse and repay Owner all outlay and expense which the Owner may incur in
making good any default or deficiency, then this obligation shall be void; otherwise, it shall remain in full force
and effect.
PROVIDED FURTHER, that if any legal action be filed upon this Bond, exclusive venue shall lie in
Denton County, State of Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that
no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed
thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its
obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or
addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications,
Drawings, etc.
This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as
amended, and any other applicable statutes of the State of Texas.
The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in
Denton County to whom any requisite notices may be delivered and on whom service of process may be had in
matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated
Civil Statutes of the State of Texas.
IN WITNESS WHEREOF, this instrument is executed in (3LThree copies, each one of which shall be
deemed an original, this the 18th day of February2016 .
BY:
SECRETARY J
Ey"Will
B Y:
Trena- e— Donavan, 11 vvitrress
The Resident Agent of the Surety in Denton County,
PRINCIPAL
Li ks C Aruction, LLP.
BY:
PR t,S1, I. ; NT
SURETY
Philadelphia Indemnity Insurance Company
BY:
Br dy K. Cox
Texas for delivery of notice and set -vice of the process is:
NAME: William D. Baldwin
STREETADDRESS: 5930 Preston View Blvd., Suite 200, Dallas, TX 75240
(NOTE: Date of Performance Bond must be date of Contract. If Resident Agent is not a corporation, gi
a person's name.) I
a
Mr."tial)MOMIX
KNOW ALL MEN BY THESE PRESENTS: That Unks QAISULICti011. 1,LP. whose address is
L, A . ......... ... .....
525 S. 1-oop 288, Sulte 105, Denton, Texas 762.05[icreinafter called Principal, and the Plillad ell
1WqM_nJ'1yJ ns,ti.rance Coilipapy, a corporation organized and existing under the laws of the State of Texas,
and fully authorized to transact business in the State of Texas, as Surety, are held and firmly bound unto
the City of Denton, a municipal corporation organized and existing under the laws of the State of Texas,
hereinafter called Owner, in the penal sum of FIVE HUNDRED AND TWENTY-TWO THOUSAND,
SEVEN HUNDRED AND FORTY THREE DOLLARS AND NO CENTS ($,. ?2_7 in lawful
money of the United States, to be paid in Denton, County, Texas, for the payment of which sum well and
truly to be made, we hereby bind ourselves, our heirs, executors, administrators, successors, and assigns,
jointly and severally, firmly by these presents. This Bond shall automatically be increased by the amount
of any Change Order or Supplemental Agreement which increases the Contract price, but in no event
shall a Change Order or Supplemental Agreement which reduces the Contract price decrease the penal
sum of this Bond.
M=1610 MAMMME
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties and make
rk
material in the prosecution of the Work provided for in said Contract and any and all duly authorized
Linodifications of said Contract that may hereafter be made, notice of which modifications to the Surety
being hereby expressly waived, then this obligation shall be void; otherwise it shall remain in full force
and effect.
PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive venue shall lie in
Denton County, Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipula�tes and 0
agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the JW
in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed
thereunder, or to the Plans, Specifications, Drawings, etc. I
This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as
amended, and any other applicable statutes of the State of Texas.
The undersigned and designated agent is hereby designated by the Surety herein as the Resident
Agent in Denton County to whom any requisite notices may be delivered and on whom service of process
may be had in matters arising out of such surety, as provided by Article 7.19-1 of the Insurance Code,
Vernon's Annotated Civil Statutes of the State of Texas.
IN WITNESS WHEREOF, this instrument is executed in t3L][hree copies, each one of which
shall be deemed an original, this the 18th day of _Lebrua., 2016 -
BY:
SECRETARY J
ATTEST:
BY:
renae Donovan, Witness
M
Philadelphia Indemnity Inwance Com any
BY: A -,r Bradydy K. Cox
-
The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the
process is:
NAME: William D. Baldwin
STREET ADDRESS: 5930 Preston View Blvd., Suite 200, Dallas, TX 75240
(NOTE: Date of Payment Bond must be date of Contract. If Resident Agent is not a corporation, give a
person's name)
IMPORTANT NOTICE
To obtain information or make a complaint: You may
call the Surety's toll free telephone number for
information or to make a complaint at:
You may also write Philadelphia Indemnity Insurance
Company at:
One Bala Plaza, Suite 100
Bala Cynwyd, PA 19004
Senior i `n
Director of Surety I
You may contact the Texas Department of Insurance
to obtain information on companies, coverage, rights
or complaints at
,
You may write the Texas Department of Insurance
at:
x 1149104
Austin, TX 78714-9104
-171
Ott / ,tdi,st .,4,
Email: rtsi stair �tdi ti.
PREMIUM OR CLAI I UTE Should you have
a dispute concerning your premium or about a claim,
you should contact the Surety fiat. If the dispute is
not resolved, you may contact the Texas Department
of insurance.
ATTACH THIS NOTICE TO YOUR BOND, This
notice is for information only and does not become a
part or condition of the attached document.
ADVISO IMPORTANTE
Para opener inform cion o pare sorneter Cana queja,
Usteri puede ilamar al numero de teleforio gratis de
Dare inf formcion para soi eter n queja al,
Listed tanbien puede escribir a Philadelphia
Indemnity Insurance Company:
One Bala Plaza, Suite 100
Bala Cynwyd, PA 190:04
Attention, Senior Vice President and
Director of Surety
cede comunicarse con el Departamento de
eguros de Texas Para o tener in orr acion acerc
e companias, coberturas, derechos o quejas al:
Puede escrlbir al Departmento de Seguros de Texas,
149104
Austin, 78714-9104
1 7-171
Email: ConsumorProtfiqjjCtrig tate.tx.us
DISPUTAS SOBRE PRIMAS 7 E «; Si
tierce una disputa concerniente a su prima o a un
reclarno, dabs cor unlcarse con el Surety primero, Si
no se resuelve la disputa, puede entonces
comunicarrse con el de ar amento (T" I),
UNA ESTE AVISO A SU FIANZA DE T
Este aviso es solo para proposito de informacion y
no se conviertee en parts o con icion del docurnento
a junto.
o",,
PHILADELPHIA INDEMNITY INSURANCE COMPANY
One Bala Plaza, Suite 100
Bata Cynwyd, PA 19004
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS: that PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint: Willi mtn 1). Ilalt1xvin liliine Allen Brenm Ilamlt161- I4--1
E okiwitm Miclnmel 13, Hill, Monica Cmmmimos. Brady K. Cox & Ross Frenfel (of Roldwitm-Cox Agency LLC
Its true and lawful Attorney(s) in fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings
obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed S25.I1114,111111
This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of
PHILADELPHIA INDEMNITY INSURANCE COMPANY at a meeting duly called the I"day of July, 2011.
(Seal)
RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the
Company to: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to
execute on behalf of the Company bonds and undertakings, contracts of indemnity and
other writings obligatory in the nature thereof and to attach the seal of the Company
thereto; and (2) to remove, at any time, any such Attorney -in -Fact and revoke the
authority given. And, be it
FURTHER
RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any
such Power of Attorney or certificate relating thereto by facsimile, and any such Power of
Attorney so executed and certified by facsimile signatures and facsimile seal shall be
valid and binding upon the Company in the future with the respect to any bond or
undertaking to which it is attached.
Robert D. O'Leary Jr., President & CEO
Philadelphia Indemnity Insurance Company
On this 7`h day of February 2013, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that
he is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; ANY; that the seal affixed to said instrument is the
Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed.
=PORATK
ME
La"MMOwT
ft CON
201
Notary Public:
residing at: Bala Cvnwvd. PA
(Notary Seal)
My commission expires: March 22. 2016
I, Craig P, Keller, Executive Vice President, Chief Financial Officer and Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do herby certify that
the foregoing resolution of the Board of Directors and this Power of Attorney issued pursuant thereto are true and correct and are still in full force and effect I do
further certify that Robert D, O'Leary Jr., who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly
elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY,
In Testimony Whereof I have subscribed my name and affixed the facsimile seat of each Company this 1 day of Feb ]a" 20
Craig P Keller, Executive Vice President, Chief Financial Officer & Secretary
PHILADELPHIA INDEMNITY INSURANCE COMPANY
tbit G
Insur ance Rggo!*rements
INSURANCEi • D
• I •' i •
Respondent's attention is directed to the insurance requirements below. ,Ii is highly recommended that
respondents confer iiith their respective insurance carriers or brokers to determine in advance of
Proposal/Bid submission the availability of insurance certificates and endorsements cis prescribed and
provided herein. If an apparent lose 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 dirty to
maintain throughout the course gfthis contract.
1 1 !
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, Ilse minimum insurance coverage as indicated hereinafter.
As soon as, practicable after notification of contract award, Contractor shall file with the Purchasing
Department satiact►;rrt' ccrtifrcates of insurance, 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, Contractorsare strongly advised to make such
requests prior to proposal/bid opening, since the insurance requirements may not be modified or
waived after,propesaaid opening unless a <written exception has been submitted with the proposizaid.
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 conoply with the
following general specifications, and shall be maintained in _compliance with these general
specifications throughout the duration of lite Contract, or longer, if so tooted.
• 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.
•. Any deductibles or self -insured retentions shall be declared in the proposal. If requested by the
City, the insurer shall reduce or eliminate such deductibles or self -insured retentions with respect
to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and defense
expenses.
Liability policies shall be endorsed to provide the following:
Name as additional insured the City of Denton, its Officials, Agents, ;Employees and
volunteers.
That such insurance is primary to any other insurance available to the additional insured
with respect to claims covered under the policy and that this insurance applies separately
to each insured against whom claim is made or suit is brought. The inclusion of more
than one insured shall not operate to increase the insurer's limit of liability.
• Cancellation: City requires 30 day written notice should any of the policies described on the
certificate be cancelled or materially changed before the expiration date.
• 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.
0 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, terininate this agreement effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIRE MENTS:
AM 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 lite Contract, or longer, if so noted.
[XI 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:
0 Coverage A steal I include premises, operations, products, and completed operations,
independent contractors, contractual liability covering this contract and broad form
property damage coverage.
0 Coverage B shall include personal injury.
a 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 policywill 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 Worker's Compensation insurance whick in ad•ition 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 Insure
For building or construction projects, the Contractor shall comply with the provisions of
Attachment I in accordance with §406.096 of the Texas Labor Code and rule 28TAC I 10. 110 of
the Texas Worker's Compensation Commission
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 $500,000.0,0 combined bodily injury and
property damage per occurrence with a $I,,00Q 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 SI&Q0 000,00, per claim with re.5pect to
negligent acts, errors or omissions in connection with professional services is required under this
Agreement.
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.
Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the
promises, 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.
[X] Workers' Compensation Coverage for Building or Construction Projects for
Governmental Entities
Certificate of coverage ("certificate") -A copy of a certificate of insurance, a
certificate of authority to self -insure issued by the commission, or a coverage
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory
workers' compensation insurance coverage for the person's or entity's employees
providing services on a project, for the duration of the project.
Duration of the project - includes the time from the beginning of the work on the
project until the contractor's/person's work on the project has been completed and
accepted by the governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) - includes all
persons or entities performing all or part of the services the contractor has
undertaken to perform on the project, regardless of whether that person contracted
directly with the contractor and regardless of whether that person has employees.
This includes, without limitation, independent contractors, subcontractors, leasing
companies, motor carriers; owner -operators, employees of any such entity, -or
employees of any entity which furnishes persons to provide services on the project.
"Services" include, without limitation, providing, hauling, or delivering equipment or
materials, or providing labor, transportation, or other service related to a project.
"Services" does not include activities unrelated to the project, such as food/beverage
vendors, office supply deliveries, and delivery of portable toilets.'
B. The contractor shall provide coverage, based on proper reporting of classification
codes and payroll ahnounts and filing of any overage agreements, which meets the
statutory requirementsof Texas Labor Code, Section 401.011(44) for all employees
of the Contractor providing services on the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental entity
prior to being awarded the contract.
D. If the coverage period shown on the contractor's current certificate of coverage ends
during the duration of the project, the contractor must, prior to the end of the
coverage period, file a new certificate of coverage with the governmental entity
showing that coverage has been extended.
E. The contractor shall obtain from each person providing services on a project, and
provide to the governmental entity:
1. a certificate of coverage, prior to that person beginning work on the project, so
the governmental entity will have on file certificates of coverage showing
coverage for all persons providing services on the project; and
2. no later than seven days after receipt by the contractor, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project.
F. The contractor, shall retain all required certificates of coverage for the duration of the
project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail or
personal delivery, within 10 days after the contractor knew or should have known, of
any change that materially affects the provision of coverage of any person providing
services on the project.
H. The contractor shall post on each project site a notice, in the text, form and manner
prescribed by the Texas Workers' Compensation Commission, informing all persons
providing services on the project that they are required to be covered, and stating
how a person may verify coverage and report lack of coverage.
The contractor shall contractually require each person with whom it contracts to
provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and payroll
amounts and filing of any coverage agreements, which meets the statutory'
requirements of Texas Labor Code, Section 401.011(44) for all of its employees
providing services on the project, for the duration of the project;
2. provide to the contractor, prior to that person beginning work on the project, a
certificate of coverage showing that coverage is being provided for all employees
of the person providing services on the project, for the duration of the project;
3, provide the contractor, prior to the end of the coverage period, a new certificate of
coverage showuig extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
4. obtain from each other person with whom it contracts, and provide to the
contractor:
a. a certificate of coverage, prior to the other person beginning work on the
project; and
b. a new -certificate of coverage showing extension of coverage, prior to the end
of the coverage period, if the coverage period shown on the current certificate
of coverage ends duruig the duration of the project;
5. retain all required certificates of coverage on file for the duration of the project
and for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the person knew or should have known, of any change that
materially affects the provisionof coverage of any person providing services on
the project; and
7. Contractually require each person with whom it contracts, to perform as required
by paragraphs (1) - (7), with the certificates of coverage to be provided to the
person for whom they are providing services.
J. By signing this contract or providing, or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all employees
of the contractor who will provide services on the project will be covered by
workers' compensation coverage for the duration of the project, that the coverage
will be based.. on; proper reporting of classification codes and payroll amounts, and
that all coverage agreements will be filed with the appropriate insurance carrier or, in
the case of 'a self -insured, with the commission's Division of ` Self -Insurance
Regulation. Providing false or misleading information may subject the contractor to
administrative penalties, criminal penalties, civil penalties, or other civil actions.
K. The contractor's failure to comply with any of these provisions is a breach of
contract by the contractor which entitles the governmental entity :to declare the
contract void if the contractor does not remedy the breach within ten days after
receipt of notice of breach from the governmental entity.
Imm
Cily of Denton
RFP FOR MAYHILL PROPERTY RENOVATION
ATTACHMENT A-13USINESS OVE RVIEW QUESTIONNAIRE AND
FORMS
1. Contractor legal name and address (I'or contracting purposes):
Links Construction, LI-C
NEf ,r
3. Organization Class (circle):
Corporation
6. Historically Underutilized Business: No
Individual Association
7. Does YOU any have an established physical presciice in the Stale of Texas, or the City of
Denton e -'No,inv0iich? Yes, its Denton Texas
S. Please provide a detailed listing of all products andlor services that your company provides.
Links serves clients in all industries Including restaurant, retail, industrial Manufacturing,
municipal, education, health services, office. warehouse, multi-famly residential and transportation.
Repeat clients and design build projects make up a vast majority of our business and Links associates
have proven themselves over and over by building trusting relationships with clients. The listof
testimonials are long and Impressive and reinforces the fact that ensuring a project is built, with
exceeding workmanship and on schedule is critical to our company. We are committed to being on time
and on budget, not most of the time, but always, We are committed to quality construction, at a very
personal level, as a reflection of the company and all of the Links associates. We understand the
importance of turning our business relationships into personal friendships, which demands performance
at the highest level. We expect the best from our trade contractomand demand that they pelorm at
the same high standards we set for ourselves. We will not accept late, over -budget, lack of
communication or poor quality; and set our goal at making the building experience with Links
Construction fantastic. We exPect It to be rewarding and enjoyable for all parties involved,
9. Has vour company filed or been named in any litigation involving your company and the Owner on
a contract mithin the last five years under your current company name or any other company name?
If so provide details of the issues and resolution if available, Include lawsuits where Owner was
involved.
MM
RFP 5866 -Main DOCLIMeIll Page 12 of 24
Cily of Denim
RFP FOR MAYHILL PROPERTY RENOVA-HON
0,HaVe You ever dtfaulted tin or filifled to complete a contract under yom current company ntane or
ally other cornpally nalm? 11' so. where and NvIly? Give name and teleplimienumber ofowner.
No
.1-lave you ever had a contract terminated bythe Owner? If so, where and why? Give name and
telephone number (s) of Owner (s).
IM
'?Vr-1M7,1rjA IFTIrpm-rimplemented all hmployee Health and Safety Program compliant with 29 CIF
1910 "General Industry Staridards" and/or 29 C
apply to your Company's customary activities? FR 1926 "General Construction Standards" as the
IMP://WxvvN,.Qsha.goa.srch,seamit—fonii?o—doe—tvpc=STAND& ARDSp tome le
=I&p_keyvaluc=1926 I _ — I
WM
A.Resident/Non- Resident Bidder Determination:
Texas Governmeni Code Section 2252-002: Non-resident bidders. Texas law prollibils cities
and ()tber L4VATITIMMARI I'llils from awarding contracts to a non-resident Kirin unless <the
amount of such a bid is lower than the lowest bid by a Texas, resIdent, by the amount the
Texas resident would be required to underbid in the non-resident bidders' state. In order to
make this determination, please provide the awil of-,
a. Responding firms principle place ofbusiness:
Links Construction
525 S. Loop 288, Suite 105
Denton, TX 776205
b. Company�s majority owner principle place of business:
M91 . MAE"
Loop 288, Suite 105
Denton, TX 7620-5
c. Ultimate Parent Company's principle place of business:
M.
RrP 5866 - Win Documeni Page 13 of 24
cjtv or Denton
RFP FOR MAYH11,CPROPERTY RENOVATION
�e detAjJE"# ort the evaluatip,
Need more details regarding evaluation criteria, not included in RFP Packet
15,Provide delnil.,g nn hn%v firr ef— — ---- %,.- -- -,,, . .
aThe details must be completed on this form, and shall not point to another document
in the respondent's proposal.
b. Sign below and return for with final submission.
M
City of Denton
q11
Any exceptions taken to this solicitation (including term-,% and conditions in Exhibit
General Provisions and Terms and Conditions) musl be itemized on the lines below. Additional
pages may be added as needed. If there are no exceptions, please sign where indicated at the
bottom of the page.
Teabove exceptions (and any additional pages identified) are the ONLY exceptions to the
specifications. General Provisions and Terms and Conditions in Exhibit 2, and sample contract to
this solicitation. I understand that the. City may not accept additional exceptions produced after
final submission of t is prop0 sa
Daic
No Exceptions are taken to this.solicitation or the General Provisions and Terms
and Conditions in Exhibit 2,
RFP 5866 - Main Documem PaV 15 of 24
ATTACHMENT D-REFERENCES
Please list three (3) Government references, other than the City of Denton, who can verify 0ic quality of service
your company provides. The City prefers customers of similar size and scope of work- to this solicitation.
REFERENCE ONE
GOVrRNMENT/COMPANY NAME: City of Ft. Worth
LOCATION: 6400 Pecan Vallev Dr. FtWorth 1 1 'CL Go r
CONTACT PERSON AND TITLE: Nanev Bunton. CFW Parks and Communitv Services Dem
TELEPHONE NUMB!"ADC IQ 1 7, In) 1,1771
SCOPE OF WORK:_, 000 C !b I-,L ous
CONTRACT PERIOD: 513113- 712li13"
R EFERENCE TWO
GOVERNMENTICOMPANY NAME: City of Frisco. TX
LOCATION: 9004 Dallas Parkwav, Frisco. TX
CONTACTPERSON AND TITLE: Ben !jrezjna.,Ag1. to the City Manager,—__
TELEPHONE NUMBER: -- (940) 453-34 77
SCOPE OF WORK: Frisco DiscovervCenter
CONTRACT PERIOD: 2121114 — 6114114
REFERENCE THREE
GOVERN M ENTICOM PAN Y NAME: City of I-lackberTy, TX
LOCATION:—_,_, 119 N1qykvcL11 Rd n ckbcrrv.,TX'
CONTACT PERSON AND TITLE: Brenda Lewallen. Cit-y-Manager
TELEPHONE NUMBER- 1977120-1991-
SCOPE OF WORK: Completed view ground up city hall building
CONTRACT PERIOD: 8/11-4/12
RFP 5866 - Main Document Page 19 of 24
City of Denton
RFP FOR MAY14ILL PROPERTY MOVATION
ATTACHMENT E-CONFLICT OF INTEREST QUESTIONNAIRE
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or otlier nerson doing business wills local eciveilottirntal ouli(v N/A
as defined by Section 176.001(1-a) with a local god the person meets requirements under Section 176,006(a).
By law this qupstionnaire must lot! filed with the records administrator ofthe local government entity not later than the 7th business day after
the date the person becomes awarc of facts that require the statement to fie Filed. Ye.v Sectit)n 176,006, Local Government Code.
Class C. misdemeanor.
of person whu hat a business relailonship widi local governmental entity.
Check this box if you are riling an update to A timlouitly filed quest ionma ire.
(1'fte low fit; laSre that )"Llu file an Ul)dalcdcoitipltqcdqtt"i(kikimim with Ilse uppT(,priine filing outhorityr" lincr titan day atfwl ux
Ckoo 014,10tiitinAlly fi!!±Atic Sti00,oftorV h&WICS InCtAnpIcte Cit maCCUrraivj
Name of local government officer with whom filer has an employment or buqnek% relationship.
Na ttle 01`0171cer
'11iis dvciion, 61cm 3 including subfiarts A. 11, (,& D). must be completed for each officer with whoni the filer bos an employineni or other business relationship its
defined by Section 176.0010-a). Local (4werrinient Code. Attach additional paptes its t1ii., I-onli CIO as nccess4m -
A. Is Hie Inca] governivicrit officer named in this sizefion receivirip or likely to receive ja\i,.j.Ac income, other than Investment income. from the filer of the
questionniiii-0
= Yes EINo
B. Is the filet of the questionnaire receiving or fikel) to receive lau.ble incortiv., otlier thaii investractil income, from or at the direction of the local
government officer vained in ihk section AND the toNgbie inviant: N not received from tire local goveninicnial cilliky?
= Yes 0 No
C Is the filer of This questionnaire empiriyed bN a corporation or other business viiiii), with respect to %Yhich the local gaverrin-writ officer serves as oil
of'ricer or director. or holds an m%nci-trip of 10 liercent or more'?
F] Yes EINo
1). Describe cach affiliation or business relationship.
I hair no conflict of Interest to dkckisc.
Signature orprsanti doin business wviiii, tit go% emmenu i it C111 1%
RFP 5866 - Main Document
L7L
Date
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
loft
Complete Nos, 1- 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos. 1, 2, 3, 5. and 6 if there are no interested parties,
CERTIFICATION OF FILING
1 Name of business entity filing form, and the city, state and country of the business entity's place
Certificate Number:
of business.
2016-13251
Links Construction
Denton, TX United States
Date Filed:
2 Name of governmenta entity or state agency Dial is a party to the contract for w ticit tile form is
02/1512016
being flied',
City of Denton
Date Acknowledged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the goods or services to be provided under the contract.
RFP 5866
MayhIll Property Renovation 651 Mayhill Road
4
Name of Interested Party City, State, Country (place of business)
Nature of Interest (check applicable)
..........
Controlling Intermediary
5 Check only if there is NO Interested Party.
6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct.
BARBARA K. STARR
, s Notary Public, State off Texas
Comm. Expires 11 -26-2018
ID -
Nolafy 515375
— thoriz JaJJr , t uttiorizedaoentof�,,niratil�ngbusin�essentity
AFFIX NOTARY STAMP I SEAL ABOVE
Sworn to and subscribed before me, by the said )el 0* this the
day of
20_L(.p , to certify which, wit -s my hand and seal of office.
Ta of offs ad stem i Printed name of officer administering oath
Title of officer administering oath
Forms provided by Texas Ethics Comniisi,'11-011 www.ethics,state.tx.us
Vprcinn %ii n 1A0AA