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FirstAmendmenttoContractɋOrdinanceNo.201610404/05/16JR
ORDINANCE NO. 2O13-ZSS
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC
WORKS CONTRACT FOR CONCRETE REPAIR AND 1NSTALLATION SERVICES
1NCLUDING CURB AND GUTTER REPLACEMENT AND FLAT WORK FOR VARIOUS CITY
OF DENTON DEPARTMENTS; PROVIDING FOR THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5241-AWARDED TO FLOYD
SMITH CONCRETE,INC.1N THE NOT-TO-EXCEED AMOUNT OF $10,000,000).
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
NUMBER �"C.�"f�"1'� �CTO����� AMOUNT
5241 Floyd Smith Concrete, Inc. $10,000,000
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 certiiicate after
notification of the award.
SECTIONITIT3. 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 5241 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 ������w_, day of µ , 2013.
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��MARK �. .I,��.���" �w��aC ��, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND FLOYD SMITH CONCRETE, INC
(RFP 5241)
THIS CONTRACT is made and entered into this 17t" day of September, 2013, by and between Flovd
Smith Concrete, Inc a corporation, whose address is PO BOX 1781, Denton. TX 76202, hereinafter referred to
as "Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home-Rule City,
hereinafter referred to as "City," to be effective upon approval of the Denton City Council and the subsequent
execution of this Contract by the Denton City Manager or his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the mutual benefits
to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Contractor shall provide construction services in accordance with the City's RFP # 5241, RFP for
Concrete Repair and Installation Services, a copy of which is on file at the office of Purchasing Agent and
incorporated herein for all purposes as "Exhibit B". The Contract consists of this written agreement and the
following items which are attached hereto and incorporated herein by reference:
(a)
(b)
(c)
(d)
(e)
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Special Terms and Conditions (Exhibit "A");
City of Denton Request for Proposal # 5241 (Exhibit "B", on file at the Offce of the
Purchasing Agent)
City of Denton Standard Terms and Conditions (Exhibit "C");
Insurance Requirements (Exhibit "D");
Payment and Performance Bond (Exhibit "E");
Conflict of Interest Form (Exhibit "F")
Contractor's Proposal (Exhibit "G");
These documents make up the Contract documents and what is called for by one shall be as binding as if
called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents,
the inconsistency or conflict shall be resolved by giving precedence first to this written Contract, and then to the
contract documents in the sequential order in which they are listed above. These documents shall be referred to
collectively as "Contract Documents."
RFP 5241
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first
above written.
ATTEST:
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By• �, �
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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"CONTRACTOR"
Floyd Smith Concrete, Inc.
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By: � ���� .�� �
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AUTHOi��.���C� SI��fATURE
TYPED NAME: Aiko Smith
TITLE: President
(940) 565-0114
PHONE NUMBER
fscinc 1 @verizon.net
E-MAIL ADDRESS
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
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GEORGE C. CAMP �
BELL
CITY MANAGER
EXHIBIT A
SPECIAL TERMS AND CONDITIONS
Contract Term
The contract term is for a one (1) year period. The City and the Contractor sha11 have the option to renew this
contract for an additional two (2) one-year periods.
The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall
automatically renew each year, from the date of award by City Council, unless either party notifies the other
prior to the scheduled renewal date in accordance with the provision of the section titled "price adjustments", or
the section(s) titled "termination". At the sole option of the City of Denton, the Contract may be further
extended as needed, not to exceed a total of six (6) months.
Total Contract Value
The contact total for services shall not exceed $10,000,000. Pricing shall be per Exhibit G attached.
Price Adjustments
Prices described in the RFP must be firm for a period of one year from date of contract award. Any request for
price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price
Index (PPI)* for ready mix concrete manufacturing (PCU3273203273200) and the PPI for #2 Diesel (PCU)
(�;���o/�� olbfl�s��,;�/�a�Il/����,����� . The price will be increased or decreased based upon the annual
percentage change in the PPI. The maximum escalation will not exceed +/- 8% for any individual year. The
escalation will be determined annually at the renewal date. Should the PPI change exceed a minimum threshold
value of +/-1 %, then the stated eligible bid prices shall be adjusted in accordance with the PPI change not to
exceed the 8% limit per year. The contractor should provide documentation as percentage of each cost
associated with the unit prices quoted for consideration.
Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing
Manager at least 60 days prior to contract expiration of each year. Contractor must also provide supporting
documentation as justification for the request.
Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as
competitive with the general market price at the time, and become effective upon the renewal date of the
contract award or reject the increases within 30 calendar davs after receipt of a properly submitted request. If a
properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract
by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar davs after a
determination has been issued. Pre-price increase prices must be honored on orders dated up to the official date
of the City of Denton approval and/or cancellation.
The request can be sent by e-mail to: �aa����������t�Il�v���������P�°�a�.
Or mail to: Or call:
City of Denton City of Denton Purchasing
Attn: Purchasing Manager (940) 349-7100
RFP # 5241
901 B Texas Street
Denton, Texas 76209
RFP 5241
The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes.
Bonds
The Contractor will be required to sign original contract and submit a blanket performance and payment bond
for $250,000. Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as
amended.
The contractor shall obtain an independent payment and performance bonds for 110 % of the project value for
any single project in excess of $250,000. Any single project in excess of $250,000 will require the following
before a purchase order or notice to proceed is issued:
• Formal proposal of the project cost from the Contractor
• City Council approval
• Separate payment and performance bonds for 110% of the estimated project cost
• Retainage of 5% of the contract value
RFP 5241
EXHIBIT C
CITY OF DENTON GENERAL CONDITIONS FOR BUILDING CONSTRUCTION
ARTICLE 1 GENERAL PROVISIONS
GENERAL DEFINITIONS
1.1 The following definitions apply throughout these General Conditions and to the other Contract
Documents:
a) THE CONTRACT DOCUMENTS
The Contract Documents consist of the formal Building Construction Services Agreement between the
Owner and the Contractor, these General Conditions and other supplementary conditions included by
special provisions or addenda, drawings, specifications, addenda issued prior to execution of the
Contract, other documents listed in the Contract, and Amendments issued after execution of the
Contract. For purposes of these General Conditions, an Amendment is:
(1) a written Supplemental Agreement to the Contract signed by authorized representatives of both
parties;
(2) a Change Order, including Change Orders signed only by the Owner as described in Subparagraph
7.1(b) and Subparagraph 7.1(e); or
(3) a written order for a minor change in the Work issued by the Architect/Engineer as described in
Paragraph 7.3.
The Contract Documents also include bid documents such as the Owner's Instructions to Bidders,
sample forms, the Contractor's Bid Proposal and portions of addenda relating to any of these documents,
and any other documents, exhibits or attachments specifically enumerated in the Building Construction
Services Agreement, but specifically exclude geotechnical and subsurface reports that the Owner may
have provided to the Contractor.
b) THE CONTRACT
The Contract Documents, as defined in Paragraph 1.1, are expressly incorporated into and made a part
of the formal Building Construction Services Agreement between the Owner and the Contractor by
reference in this Paragraph and Paragraph 1.1 (which documents are sometimes also referred to
collectively in these General Conditions as the "Contract"). The Contract Documents represent the entire
and integrated agreement between the Owner and the Contractor and supersede all prior negotiations,
representations or agreements, either written or oral. The terms and conditions of the Contract
Documents may be changed only by an Amendment. The Contract Documents shall not be construed to
create a contractual relationship of any kind:
(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.
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The Architect/Engineer shall, however, be entitled to performance and enforcement of obligations under
the Contract Documents intended to facilitate performance of the Architect/Engineer's duties.
c) THE WORK
The term "Work" means the construction and services required by the Contract Documents, whether
completed or partially completed, and includes all labor, materials, equipment, and services provided or
to be provided by the Contractor, or any Subcontractors, Sub-subcontractors, material suppliers, or any
other entity for whom the Contractor is responsible, to fulfill the Contractor's obligations. The Work
may constitute the whole or a part of the Project.
d) THE PROJECT
The Project is the total construction more particularly described in the Building Construction Services
Agreement, of which the Work performed under the Contract Documents may be the whole or a part of
the Project and which may include construction by the Owner or by separate contractors. All references
in these General Conditions to or concerning the Work or the site of the Work will use the term
"Project," notwithstanding that the Work may only be a part of the Project.
e) THE DRAWINGS
The Drawings (also known as the "Plans") are the graphic and pictorial portions of the Contract
Documents, wherever located and whenever issued, showing the design, location and dimensions of the
Work, generally including plans, elevations, sections, details, schedules, and diagrams.
fj THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written requirements for
materials, equipment, construction systems, standards, and workmanship for the Work, performance of
related services, and other technical requirements.
g) THE PROJECT MANUAL
The Project Manual is the volume or volumes which contain the bidding requirements, sample forms,
General Conditions for Building Construction, special provisions, and Specifications. The Project
Manual may be modified by written addendums issued by the Owner during bidding, in which case the
written addendums become a part of the Project Manual upon their issuance, unless otherwise indicated
by the Owner in writing.
h) ALTERNATE
An Alternate is a variation in the Work on which the Owner requires a price separate from the City
Building General Conditions Base Bid. If an Alternate is accepted by the Owner, the variation will
become a part of the Contract through the execution of a change order or amendment to the Contract and
the Base Bid will be adjusted to include the amount quoted. If an alternate is accepted by the Owner,
and later deleted prior to any Work under the alternate being performed or materials delivered to the
Project site, the Owner will be entitled to a credit in the full value of the alternate as priced in the
Contractor's Bid.
RFP5241
i) BASE BID
The Base Bid is the price quoted for the Work before Alternates are considered.
j) HAZARDOUS SUBSTANCE
The term Hazardous Substance is defined to include the following:
(1) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite,
amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non-friable;
(2) any polychlorinated biphenyls ("PCBs"), or PCB-containing materials, or fluids;
(3) radon;
(4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or
gaseous waste;
(5) any pollutant or contaminant (including but not limited to petroleum, petroleum hydrocarbons,
petroleum products, crude oil or any fractions thereof, any oil or gas exploration or production
waste, any natural gas, synthetic gas or any mixture thereof, lead, or other toxic metals) which in its
condition, concentration or area of release could have a significant effect on human health, the
environment, or natural resources;
(6) any substance that, whether by its nature or its use, is subject to regulation or requires environmental
investigation, monitoring, or remediation under any federal, state, or local environmental laws, rules,
or regulations;
(7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I) (including those
defined by Section 9001(1) of the 1984 Hazardous and Solid Waste Amendments to the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Texas Water Code Annotated
Section 26.344; and Title 30 of the Texas Administrative Code Sections 334.3 and 334.4), whether
empty, filled or partially filled with any substance; and
(8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and toxic
substance as those or similar terms are defined under any federal, state, or local environmental laws,
rules, or regulations.
k) OTHER DEFINITIONS
As used in the Contract Documents, the following additional terms have the following meanings:
(1) "provide" means to furnish, install, fabricate, deliver and erect, including all services, materials,
appurtenances and other expenses to complete in place, ready for operation or use;
(2) "shall" means the action of the party to which reference is being made is mandatory;
(3) "as required" means as prescribed in the Contract Documents; and
(4) "as necessary" means all action essential or needed to complete the work in accordance with the
Contract Documents and applicable laws, ordinances, construction codes, and regulations.
RFP 5241
1.2 EXECUTION, CORRELATION AND INTENT
(a) The Building Construction Services Agreement shall be signed by duly authorized representatives of the
Owner and Contractor as provided in the Agreement.
(b) Execution of the Building Construction Services Agreement by the Contractor is a representation that
the Contractor has visited the site, become familiar with local conditions, including but not limited to
subsurface conditions, under which the Work is to be performed and correlated personal observations
with requirements of the Contract Documents.
(c) The intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Work by the Contractor. The Contract Documents are complementary, and what is
required by one shall be as binding as if required by all; performance by the Contractor shall be required
only to the extent consistent with the Contract Documents and reasonably inferable from them as being
necessary to produce the intended results.
(d) Organization of the Specifications into divisions, sections, and articles, and arrangement of Drawings
shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent
of Work to be performed by any trade.
(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.
(� The Drawings and Specifications are intended to agree with one another, and Work called for by
Drawings and not mentioned in Specifications, or vice versa, shall be furnished as if set forth by both.
Specifications shall govern materials, methods and quality of work. In the event of a conflict on the
Drawings between scale and dimension, figured dimensions shall govern over scale dimensions and
large scale drawings shall govern over small scale drawings. Conflict between two or more dimensions
applying to a common point shall be referred to the Architect/Engineer/Engineer for final adjustment. If
discrepancies or conflicts occur within or between the Drawings and Specifications regarding the Work,
or within or between other Contract Documents, the Contractor shall not perform such Work without
having obtained a clarification from the Architect/Engineer and resolution by the Owner. The Owner's
decision as to the appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings
or the Specifications disagree within themselves or with each other; the Base Bid will be based on the
most expensive combination of quality and quantity of Work indicated.
(g) Deviations from Contract Documents shall be made only after written approval is obtained from
Architect/Engineer and Owner, as provided in Article 7.
(h) The intention of the Contract Documents is to include all materials, labor, tools, equipment, utilities,
appliances, accessories, services, transportation, and supervision required to completely perform the
fabrication, erection and execution of the Work in its final position.
(i) The most recently issued Drawing or Specification takes precedence over previous issues of the same
Drawing or Specification. In the event of a conflict, the order of precedence of interpretation of the
Contract Documents is as follows:
(1) Amendments (see Paragraph 7.2 for order of precedence between Amendments);
RFP 5241
(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.
1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER'S DRAWINGS, SPECIFICATIONS AND
OTHER DOCUMENTS
All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and shall remain
the property of the Owner and are, with the exception of the Contract set for each party, to be returned to the
Owner upon request at the completion of the Work.
1.4 CAPITALIZATION
Terms capitalized in these General Conditions include those which are:
(1) specifically defined in these General Conditions (except the terms defined in Subparagraph 1.1(j), which
terms are of common grammatical usage and are not normally capitalized);
(2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses;
(3) the titles of other documents published or used by the Owner as manuals or official policy statements; or
(4) proper nouns or other words required under standard grammatical rules to be capitalized.
ARTICLE 2 THE OWNER
2.1 DEFINITION OF OWNER
The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in the Building
Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in
number. The term "Owner" means the Owner or the Owner's authorized representatives.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
(a) The Owner shall furnish the most recent survey describing the physical characteristics, legal limits,
utility locations, and a permanent benchmark for the site of the Project. The Owner shall also furnish
any environmental site assessments that may have been given to the Owner or conducted for the
property upon which the Project is to be constructed. THIS INFORMATION IS FURNISHED TO THE
CONTRACTOR ONLY 1N 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 ACCUR.ACY EITHER IN WHOLE,IN PART, IMPLICITLY OR
EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER SHALL HAVE NO LIABILITY FOR
THIS MATERIAL.
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(b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the 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 redeliveries by the Owner to comply with the current schedule.
(d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished electronic copies
of the Drawings and Specifications for bid purposes and one hard copy approved by Building
Inspections upon execution of the Contract. Contractor may obtain additional copies by paying the cost
of additional printing or reproduction.
(e) The obligations described above are in addition to other duties and responsibilities of the Owner
enumerated in the Contract Documents and especially those in respect to Article 6(Construction by
Owner or by Separate Contractors), Article 9(Payments and Completion), and Article 11 (Insurance and
Bonds).
(� 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 fails to correct any portion of the Work which is not in accordance with the requirements
of the Contract Documents as required by Paragraph 12.2 or refuses or fails to carry out all or any part of the
Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to
stop the Work, or any portion of the Work, until the cause for the order has been eliminated. The right of the
Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this
right for the benefit of the Contractor or any other person or entity. The rights of the Owner under this
Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under Paragraph 12.2.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations
of the Contract Documents, and fails or refuses to correct any failure or refusal with diligence and
promptness within fourteen (14) days after receipt of notice from the Owner, the Owner may correct the
Contractor's failure or refusal or cause such failure or refusal to be corrected, without affecting,
superseding, or waiving any other contractual, legal, or equitable remedies the Owner has, including but not
limited to the Owner's termination rights under Article 13. In that case, an appropriate Change Order will be
issued deducting the Owner's cost of correction, including Architect/Engineer's compensation for additional
services and expenses made necessary by the failure or refusal of the Contractor from payments then or
RFP 5241
thereafter due to the Contractor. The cost of correction is subject to verification (but not approval) by the
Architect/Engineer. If payments then or thereafter due the Contractor are not sufficient to cover the cost of
correction, the Contractor shall pay the difference to the Owner.
2.5 NOTICE TO PROCEED
After final execution of the Contract and receipt and approval of the required performance and payment
bonds and evidence of required insurance, the Owner will issue a written notice to proceed with the Work,
including the designated Contract Time within which Substantial Completion of the Work must be
achieved. If the Owner unreasonably delays issuance of a written notice to proceed through no fault of the
Contractor, the Contractor shall be entitled only to an equitable adjustment of the Contract Time, if properly
claimed pursuant to the requirements of Paragraph 4.3; but the Contractor shall not be entitled to any
increase to the Contract Sum whatsoever for this reason.
ARTICLE 3 THE CONTRACTOR
3.1 DEFINITION OF CONTRACTOR
The Contractor is the person or business entity identified as such in the Building Construction Services
Agreement, and is referred to throughout the Contract Documents as if singular in number. The term
"Contractor" means the Contractor or the Contractor's authorized employees or representatives.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
(a) The Contractor shall carefully check, study, and compare the Contract Documents with each other and
shall at once report to the Architect/Engineer in writing any inconsistency, ambiguity, error, omission,
conflict, or discrepancy the Contractor may discover. The Contractor shall also verify all dimensions,
field measurements, and field conditions before laying out the Work. The Contractor will be held
responsible for any subsequent error, omission, conflict, or discrepancy which might have been avoided
by the above-described check, study, comparison, and reporting. In the event the Contractor continues to
work on an item where an inconsistency, ambiguity, error, omission, conflict, or discrepancy exists
without obtaining such clarification or resolution or commences an item of the Work without giving
written notice of an error, omission, conflict, or discrepancy that might have been avoided by the check,
study, and comparison required above, it shall be deemed that the Contractor bid and intended to execute
the more stringent, higher quality, or state of the art requirement, or accepted the condition as is in the
Contract Documents, without any increase to the Contract Sum or Contract Time. The Contractor shall
also be responsible to correct any failure of component parts to coordinate or fit properly into final
position as a result of Contractor's failure to give notice of and obtain a clarification or resolution of any
error, omission, conflict, or discrepancy, without any right to any increase to the Contract Sum or
Contract Time.
(b) The Contractor shall perform the Work in accordance with the Contract Documents and submittals
approved pursuant to Paxagraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
(a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The
Contractor shall be solely responsible for and have control over construction means, methods,
techniques, sequences, and procedures and for coordinating all portions of the Work, unless the Contract
Documents set forth specific instructions concerning these matters.
RFP 5241
(b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's
employees, Subcontractors, Sub-subcontractors, and their respective agents and employees, and any
other persons performing portions of the Work under a subcontract with the Contractor or with any
Subcontractor, and all other persons or entities for which the Contractor is legally responsible. All labor
shall be performed by mechanics that are trained and skilled in their respective trades. Standards of work
required throughout shall be of a quality that will bring only first class results. Mechanics whose work is
unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise objectionable shall
be dismissed promptly from the Work and immediately replaced with competent, skilled personnel. Any
part of the Work adversely affected by the acts or omissions of incompetent, unskilled, careless, or
objectionable personnel shall be immediately corrected by the Contractor.
(c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the
Contract Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's
administration of the Contract, or by tests, inspections, or approvals required or performed by persons
other than the Contractor.
(d) The Contractor shall be responsible for inspection of portions of Work already performed under this
Contract to determine that such portions are in proper condition to receive subsequent Work. The
Contractor's responsibility under this paragraph will not in any way eliminate the Architect/Engineer's
responsibility to the Owner under the Architect/Engineer/Owner Agreement.
(e) Any Contractor, Subcontractor, Sub-subcontractor, or separate contractor who commences Work over,
in, or under any surface prepared by the Owner or by any other contractor, subcontractor, sub-
subcontractor or separate contractor without the Contractor having given written notice to the
Architect/Engineer of the existence of any faulty surface or condition in the surface that prevents
achieving the quality of workmanship specified by the Contract Documents and without having obtained
the prior approval of the Architect/Engineer and the Owner to proceed is deemed to have accepted the
surface or condition in the surface as satisfactory at the commencement of such Work. Any
unsatisfactory Work subsequently resulting from such a faulty surface or condition in the surface that
was not pre-approved by the Architect/Engineer or the Owner after notice as provided above may be
rejected and replacement required, without any increase to the Contract Sum or Contract Time.
(� All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing basis by the
Contractor. The Contractor is solely responsible for any errors made in establishing or maintaining
proper grades, lines, levels, or benchmarks. Each Contractor for his own Work shall verify all grades,
lines, levels, and dimensions as indicated on Drawings. He shall report any errors, omissions, conflicts,
or inconsistencies to Architect/Engineer before commencing any Work affected by these conditions.
Contractor shall establish and safeguard benchmarks in at least two widely separated places and, as
Work progresses, establish benchmarks at each level and lay out partitions on rough floor in exact
locations as guides to all trades. The Contractor shall, from the permanent benchmark provided by the
Owner, establish and maintain adequate horizontal and vertical control.
3.4 LABOR AND MATERIALS
(a) Except as is otherwise specifically provided in the Contract Documents as being the responsibility of the
Owner, the Contractor shall provide and pay for labor, materials, equipment, tools, construction
equipment and machinery, water, heat, utilities, transportation, and other facilities and services
necessary for proper execution and completion of the Work, whether temporary or permanent and
whether or not incorporated or to be incorporated in the Work.
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(b) The Contractor shall enforce strict discipline and good order among the Contractor's employees and
other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or
persons not skilled in tasks assigned to them.
(c) The Contractor shall give preference, when qualified labor is available to perform the Work to which the
employment relates, to all labor hired for the Project in the following order:
(1) to bona fide residents of the City of Denton, Texas;
(2) to bona fide residents of the County of Denton, Texas;
(3) to bona fide residents of the State of Texas;
(4) to bona fide residents of the United States.
3.5 WARRANTY
(a) General Warranty. The Contractor warrants to the Owner that all Work shall be accomplished in a good
and workmanlike manner and that all materials and equipment furnished under the Contract will be of
good quality, new (unless otherwise specified), and free from faults or defects, and that the Work will
otherwise conform to the Contract Documents. Work not conforming to these requirements, including
substitutions not properly approved and authorized, will be considered defective or nonconforming. The
Contractor's warranty excludes any remedy for damage or defect caused by abuse, modifications not
executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear
and tear under normal usage. If required by the Architect/Engineer, the Contractor shall furnish
satisfactory evidence as to the kind and quality of materials and equipment. The commencement date,
duration, and other conditions related to the scope of this general warranty are established in
Subparagraphs 9.9 (a) and 12.2(b) of these General Conditions. THE GENERAL WARRANTY
PROVIDED 1N THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT LIMIT OR
DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR PROVIDED BY LAW OR
THE CONTRACT DOCUMENTS AND SUCH WARRANTY SHALL REQUIRE THE
CONTRACTOR TO REPLACE DEFECTIVE MATERIALS AND RE-EXECUTE DEFECTIVE
WORK THAT IS DISCLOSED BY THE OWNER TO THE CONTRACTOR WITHIN A PERIOD OF
ONE (1) YEAR AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A
LATENT DEFECT, WITHIN ONE (1) YEAR AFTER DISCOVERY BY THE OWNER OF THE
LATENT DEFECT.
(b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent to final
payment, the terms and conditions of all special warranties required under the Contract Documents.
3.6 TAXES
The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the provisions of
Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall not be liable for, or pay the
Contractor's cost of, such sales and use 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.
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3.7 PERMITS, FEES AND NOTICES
(a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton Building Permit.
The Contractor and Subcontractors will apply and arrange for the issuance of all other required permits,
and will not be required to pay a fee for any City of Denton permits required for the Project. The Owner
will pay all service extension charges, including tap fees, assessed by the Water Utilities Department.
(b) The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and
lawful orders of governmental entities or agencies applying to performance of the Work.
(c) Except as provided in Subparagraph (d) below, it is not the Contractor's responsibility to ascertain that
the Contract Documents are in accordance with applicable laws, ordinances, construction codes, and
rules and regulations. However, if the Contractor observes that portions of the Contract Documents are
at variance with applicable laws, ordinances, construction codes, rules or regulations, the Contractor
shall promptly notify the Architect/Engineer and the Owner in writing, and necessary changes shall be
accomplished by appropriate Amendment.
(d) If the Contractor performs Work knowing it to be contrary to laws, ordinances, construction codes, or
rules and regulations without notifying the Architect/Engineer and the Owner, the Contractor shall
assume full responsibility for the Work and shall bear the attributable costs of the correction of the Work
and any other Work in place that may be adversely affected by the corrective work.
3.8 ALLOWANCES
(a) The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items
covered by allowances shall be supplied for the amounts identified in the Contract and by persons or
entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities
against which the Contractor makes reasonable objection.
(b) Unless otherwise provided in the Contract Documents:
(1) materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay
in the Work;
(2) the amount of each allowance shall cover the cost to the Contractor of materials and equipment
delivered at the site less all exempted taxes and applicable trade discounts;
(3) the amount of each allowance includes the Contractor's costs for unloading and handling at the site,
labor, installation costs, overhead, profit, and other expenses contemplated for stated allowance
Work;
(4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted
accordingly by Change Order. The amount of the Change Order shall reflect:
(i) the difference between actual costs and the allowances under Clause (b) (2); and
(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.
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3.9 SUPERINTENDENT
The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance
at the Project site during performance of the Work. The superintendent shall represent the Contractor, and
communications given to the superintendent shall be as binding as if given to the Contractor. Important
communications shall be confirmed in writing. Other communications shall be similarly confirmed on
written request in each case. The Owner reserves the right to request that the Contractor replace its
superintendent at any time and the Contractor will replace said superintendent at the Owner's direction.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
(a) The Contractor shall, immediately after award of the Contract and before submittal of the first
Application for Payment, prepare and submit the construction schedule for the Architect/Engineer's and
Owner's information, review, and approval in accordance with the following provisions:
(1) Unless otherwise approved in writing by the Owner, the construction schedule shall not exceed the
Contract Time limits currently in effect under the Contract Documents and shall provide for
expeditious and practicable execution of the Work.
(2) The construction schedule shall include all shop drawing and submittal data requirements, indicating
for each:
(i) the latest date to be submitted by the Contractor; and
(ii) the latest date for approval by the Architect/Engineer.
(3) The construction schedule shall be in the form of a critical path management schedule, and shall
indicate each critical task (the "predecessor") of all the major construction activities of the Work in a
logical and sequential order (the "project network") which requires completion prior to
commencement of the task next following (the "successor"). Each task shall be identified with:
(i) actual work time, exclusive of slack time, for accomplishment;
(ii) the latest start date;
(iii) the latest finish date;
(iv) the amount of float associated with each task;
(v) the amount of labor, material, and equipment associated with each task; and
(vi) the percentage of completion as of the date of the current schedule.
(4) The construction schedule shall be revised and updated monthly to reflect the actual status of the
Work and shall be submitted with each Application for Payment.
(5) On or before the first day of each month, following the date of commencement of the Work as stated
in the notice to proceed, the Contractor shall prepare and submit to the Architect/Engineer and the
Owner an up-to-date status report of the progress of the various construction phases of the Work in
the form of an updated construction schedule. This status report shall consist of a time scale drawing
indicating actual progress of the various phases of the Work and the percentage of completion of the
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entire Work. The original construction schedule shall be updated or changed to indicate any
adjustments to the Contract Time granted by the Owner. The updated schedule must be submitted
with the Contractor's Application for Payment. No application will be certified without a satisfactory
update to the construction schedule.
(6) The construction schedule will also be revised to show the effect of change orders and other events
on Contract Time. No request for an increase in Contract Time will be considered unless it is
accompanied by a schedule revision demonstrating the amount of time related to the cause of the
request. If the Contractor's status schedules reflect that the Contractor has fallen behind the pace
required to complete the Work within the Contract Time, through no fault of the Owner, the
Contractor shall prepare a recovery schedule demonstrating how it intends to bring its progress back
within the Contract Time. This recovery schedule shall be in a form acceptable to the Owner.
(7) Costs incurred by the Contractor in preparing and maintaining the required construction schedule,
any updated schedule, and any recovery schedule required by the Owner will not be paid as an
additional or extra cost and shall be included in the Contract Sum.
(8) The Contract Sum is deemed to be based upon a construction schedule requiring the full Contract
Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A
RESULT OF THE CONTRACTOR BASING HIS BID ON AN EARLY COMPLETION
SCHEDULE, OR AS A RESULT OF DELAYS AND COSTS ATTRIBUTABLE TO
COMPLETION LATER THAN THE PLANNED EARLY COMPLETION DATE.
(b) The Contractor shall also prepare and keep current, for the Architect/Engineer's approval, a
schedule of submittals which is coordinated with the Contractor's construction schedule and
allows the Architect/Engineer reasonable time to review submittals.
(c) The Contractor shall conform to the most recent schedules approved as to form by the
Architect/Engineer and the Owner. Any subsequent revisions made by the Contractor to
schedules in effect shall conform to the provisions of Subparagraph 3.10(a)
(d) If the Work falls behind the approved construction schedule, the Contractor shall take such steps
as may be necessary to improve his progress, and the Architect/Engineer and the Owner may
require him to increase the number of shifts, overtime operations, days of work, or the amount of
construction plant, and to submit for approval revised schedules in the form required above in
order to demonstrate the manner in which the agreed rate of progress will be regained, all
without additional cost to the Owner.
3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE
The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings,
Specifications, addenda, and Amendments in good order and marked currently to record changes and
selections made during construction, and in addition shall maintain at the Project site approved Shop
Drawings, Product Data, Samples, and similar required submittals. These shall be available to the
Architect/Engineer and shall be delivered to the Architect/Engineer for submittal to the Owner upon
completion of the Work.
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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/Engineer is subject to the limitations of
Paragraph 4.2.
(e) The Contractor shall review, approve and submit to the Architect/Engineer Shop Drawings, Product
Data, Samples, and similar submittals required by the Contract Documents with reasonable
promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or
of separate contractors. Submittals made by the Contractor which are not required by the Contract
Documents may be returned without action.
(� The Contractor shall perform no portion of the Work requiring submittal and review of Shop
Drawings, Product Data, Samples, or similar submittals until the respective submittal has been
approved by the Architect/Engineer. Work requiring this submittal and review shall be in accordance
with approved submittals and any identified exceptions noted by the Architect/Engineer.
(g) By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the
Contractor represents that the Contractor has determined and verified materials, iield measurements,
and related field construction criteria, or will do so, and has checked and coordinated the information
contained within submittals with the requirements of the Work and of the Contract Documents. The
Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements
stated in that Paragraph.
(h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes, additions,
deletions or omissions from requirements of the Contract Documents by the Architect/Engineer's
approval of Shop Drawings, Product Data, Samples, or similar submittals unless the Contractor has
specifically informed the Architect/Engineer in writing of such substitutions, changes, additions,
deletions, omissions, or deviations involved in the submittal at the time of submittal and the
Architect/Engineer, subject to a formal Change Order signed by the Owner, Architect/Engineer and
Contractor, has given written approval to the specific substitutions, changes, additions, deletions,
omissions, or deviations. The Contractor shall not be relieved of responsibility for errors or omissions
in Shop Drawings, Product Data, Samples, or similar submittals by the Architect/Engineer's approval
thereof. Further, notwithstanding any approval of a submittal by the Architect/Engineer, the Contractor
shall be responsible for all associated Project costs, including costs of coordination's, modifcations, 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,
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if any, in any and all accommodations associated with such substitutions, changes, additions,
deletions, omissions, or deviations to the requirements of the Contract Documents.
(i) The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product
Data, Samples, or similar submittals, to additional revisions other than those requested by the
Architect/Engineer on previous submittals. In the absence of such written notice, the
Architect/Engineer's approval of a resubmission shall not apply to the additional revisions not
requested.
(j) Informational submittals upon which the Architect/Engineer is not expected to take responsive action
may be so identified in the Contract Documents.
(k) When professional certification of performance criteria of materials, systems, or equipment is required
by the Contract Documents, the Architect/Engineer shall be entitled to rely upon the accuracy and
completeness of such calculations and certifications.
3.13 USE OF THE PROJECT SITE
The Contractor shall confine operations at the Project site to areas permitted by law, ordinances, permits,
and the Contract Documents and shall not unreasonably encumber the Project site with materials or
equipment.
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 iit together properly.
(b) The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed
construction of the Owner or separate contractors by cutting, patching, or otherwise altering the
construction, or by excavating. The Contractor 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 Permit must be obtained from the City of Denton's Facilities Management Department,
869 S. Woodrow Lane, Denton, Texas (940 349-7200) for any temporary operation involving open
flames or producing heat and/or sparks. This includes, but is not limited to: Brazing, Cutting,
Grinding, Soldering, Torch Applied Roofing and Welding.
3.15 CLEANING UP
(a) The Contractor shall keep the Project site and surrounding area free from accumulation of waste
materials or rubbish caused by operations under the Contract. Upon the completion of the Work the
Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the
Contractor's tools, construction equipment, machinery, and surplus materials.
(b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may clean up and
the Owner's cost of cleaning up shall be charged to the Contractor.
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3.16 ACCESS TO WORK
The Contractor shall provide the Owner and the Architect/Engineer access to the Work in preparation and
progress wherever located during the course of construction.
3.17 TESTS AND INSPECTIONS
(a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by
laws, ordinances, rules, regulations, or orders of governmental entities or agencies having jurisdiction
over the Work shall be made at appropriate times. Unless otherwise provided, the Contractor shall
make arrangements for such tests, inspections, and approvals with an independent testing laboratory or
entity acceptable to the Owner or with 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 to be made so the
Architect/Engineer may observe such procedures. The Owner shall bear costs of tests, inspections, or
approvals which become requirements after bids or proposals are received.
(b) If the Architect/Engineer, the Owner or other public authorities having jurisdiction over the Work
determine that portions of the Work require additional testing, inspection or approval not included
under Subparagraph 3.17(a), the Architect/Engineer will, upon written authorization from the Owner,
instruct the Contractor to make arrangements for such additional testing, inspection or approval by an
entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect/Engineer of
when and where tests and inspections are to be made so that the Architect/Engineer may observe such
procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c).
(c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b) reveal
deficiencies or nonconformities in the Work, the Contractor shall bear all costs made necessary to
correct the deficiencies or nonconformities, including those of repeated procedures and compensation
for the Architect/Engineer's services and expenses, if any. The Contractor shall bear the costs of any
subsequent testing, inspection, or approval of the corrected Work.
(d) Required certiiicates of testing, inspection or approval shall, unless otherwise required by the Contract
Documents, be secured by the Contractor and promptly delivered to the Architect/Engineer.
(e) If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract
Documents, the Architect/Engineer will do so promptly and, where practicable, at the normal place of
testing or inspection.
(� Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
3.18 ROYALTIES AND PATENTS
The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL COMPLETELY
DEFEND, INDEMNIFY AND HOLD OWNER AND ARCHITECT/ENGINEER HARMLESS FROM
ANY AND ALL SUITS OR CLAIMS FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS
OF WHETHER OR NOT THE OWNER OR THE ARCHITECT/ENGINEER SPECIFIED A
PARTICULAR DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY
BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY 1NDUCED OR
CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor has reason to believe that a
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particular design, process or product specified infringes a patent, the Contractor shall immediately notify
the Owner and the Architect/Engineer of same.
3.19 INDEMNIFICATION
(a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS
OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT/ENGINEER, HARMLESS
AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, F1NES, PENALTIES, COSTS
AND EXPENSES FOR PERSONAL 1NJURY (INCLUDING DEATH), PROPERTY DAMAGE OR
OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, F1NES, OR
PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT
OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT,
GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE
CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB-
SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR
REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE
CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT;
EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY
TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR FAULT OF THE
OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, OR OF THE
ARCHITECT/ENGINEER, AND IN THE EVENT OF JO1NT AND CONCURRENT NEGLIGENCE
OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE ARCHITECT/ENGINEER,
RESPONSIBILITY AND 1NDEMNITY, IF ANY, SHALL BE APPORTIONED 1N ACCORDANCE
WITH THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND
WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE
PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES
HERETO AND ARE NOT 1NTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL
OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
(b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the
Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts
they may be liable, the indemnification obligation under this Paragraph 3.19 shall not be limited by a
limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a
Subcontractor under workers compensation acts, disability benefit acts or other employee benefit acts.
(c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which could result
to or be created for the Owner, its officers, agents, or employees, or the Architect/Engineer pursuant to
State or Federal laws or regulations relating to pollution of the environment and State or Federal laws or
regulations relating to the occupational safety 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.
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ARTICLE 4 CONTRACT ADMINISTRATION
4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER)
(a) The design professional is the person lawfully licensed to practice architecture or engineering or a firm
or other business entity lawfully practicing architecture/engineering identified as such in the formal
Building Construction Services Agreement and is referred to throughout the Contract Documents as if
singular in number. The term "Architect/Engineer" means the Architect/Engineer or the
Architect/Engineer's authorized representative. The Owner may, at its option, designate a qualified
Owner representative to serve as the Architect/Engineer on the Project instead of an outside firm or
person. In such event, the references in these General Conditions that refer to the Architect/Engineer
shall apply to the Owner-designated Architect/Engineer representative and the Owner-designated
Architect/Engineer representative shall be accorded that same status by the Contractor.
(b) In the event the Architect/Engineer is an outside person or firm and the Architect/Engineer's
employment is terminated, the Owner may, at its option, contract with a new outside Architect/Engineer
to replace the former, or may designate a qualified Owner representative to serve as the
Architect/Engineer. The replacement Architect/Engineer, whether an Owner representative, an
independent Architect/Engineer or any other qualified person or entity, shall be regarded as the
Architect/Engineer for all purposes under the Contract Documents and shall be accorded that same
status by the Contractor. Any dispute in connection with such appointment shall be reviewed and settled
by the Owner, whose decision shall be fnal and binding.
(c) Owner reserves the right to appoint a representative empowered to act for the Owner during the
Construction Phase and to supersede the Architect/Engineer's Construction Phase responsibility.
Similarly, from time to time the Owner may expand or reduce the Owner's delegation of powers to the
Architect/Engineer, with the Owner notifying the Contractor of any such changes. The
Architect/Engineer shall not be construed as a third party beneficiary to the Contract and can in no way
object to any expansion or reduction of powers as set forth in this Subparagraph (c). In no event,
however, shall the Owner have control over charge of, or be responsible for, construction means,
methods, techniques, sequences, or procedures, or for safety precautions or programs in connection with
the Work since these are solely the Contractor's responsibility. The Owner will not be responsible for
the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Owner
will not have control over or charge of and will not be responsible for acts or omissions of Contractor,
Subcontractors, or their agents or employees, or of any other persons performing portions of the Work.
4.2 ARCHITECT/ENGINEER'S RESPONSIBILITIES DURING CONSTRUCTION
(a) The Architect/Engineer will administer the Contract as described in the Contract Documents and in
accordance with the terms of the Architect/Engineer's agreement with the Owner, where applicable,
subject to the direction and approval of the Owner. If requested by the Contractor, the provisions of the
Owner/Architect/Engineer Agreement will be made available to the Contractor.
(b) The Architect/Engineer shall provide, during performance of the Work, adequate and competent
periodic on-site construction observation, periodically visiting the Project site to the extent necessary to
personally familiarize themselves with the progress and quality of the Work, and to determine if the
Work is proceeding in accordance with the Contract Documents. The Architect/Engineer shall not,
however, be required to make continuous on-site inspections to check the Work. Field reports of each
visit shall be prepared by the Architect/Engineer and submitted to the Owner. The Architect/Engineer
shall employ all reasonable measures to safeguard the Owner against defects and nonconformities in the
Work. The Architect/Engineer shall not be responsible for the construction means, methods, techniques,
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sequences of procedures, nor for the safety precautions and programs employed in connection with the
Work. The Architect/Engineer will, however, immediately inform the Owner whenever defects or
nonconformities in the Work are observed, or when any observed actions or omissions are undertaken
by the Contractor or any Subcontractor which are not in the best interests of the Owner or the Project.
(c) The Architect/Engineer and the Owner will not have control over or charge of and will not be
responsible for construction means, methods, techniques, sequences, or procedures, or for safety
precautions and programs in connection with the Work, since these are solely the Contractor's
responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be
responsible for the Contractor's failure to carry out the Work in accordance with the Contract
Documents. The Architect/Engineer and the Owner will not have control over or charge of and will not
be responsible for acts or omissions of the Contractor, Subcontractors, Sub-subcontractors, or their
respective agents or employees, or of any other persons performing portions of the Work for which the
Contractor is responsible.
(d) Except as otherwise provided in the Contract Documents or when direct communications have been
specially authorized, the Owner and Contractor shall endeavor to communicate through the
Architect/Engineer. Communications by and with the Architect/Engineer's consultants shall be through
the Architect/Engineer. Communications by and with Subcontractors and material suppliers shall be
through the Contractor. Communications by and with separate contractors will be through the Owner.
The Contractor shall provide written confirmation of communications made directly with the Owner and
provide copies of such confirmation to the Architect/Engineer.
(e) Based on the Architect/Engineer's observations and evaluations of the Contractor's Applications for
Payment, the Architect/Engineer will review and certify the amounts due the Contractor and will issue
Certificates for Payment in such amounts.
(� The Architect/Engineer and the Owner will each have authority to reject Work which does not conform
to the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable for
implementation of the intent of the Contract Documents, the Architect/Engineer will have authority to
require additional inspection or testing of the Work in accordance with Subparagraphs 3.17(b) and
3.17(c), whether or not such Work is fabricated, installed or completed. However, neither this authority
of the Architect/Engineer nor a decision made in good faith either to exercise or not to exercise such
authority shall give rise to any duty or responsibility of the Architect/Engineer to the Contractor,
Subcontractors, material and equipment suppliers, their agents or employees, or other persons
performing portions of the Work.
(g) The Architect/Engineer will review and approve or take other appropriate action upon the Contractor's
submittals such as Shop Drawings, Product Data, and Samples, but only for the limited purpose of
checking for conformance with information given and the design concept expressed in the Contract
Documents. The Architect/Engineer's action will be taken with such reasonable promptness as to not
delay the Work or the activities of the Owner, Contractor, or separate contractors. Review of such
submittals is not conducted for the purpose of determining the accuracy and completeness of other
details such as dimensions and quantities, or for substantiating instructions for installation or
performance of equipment or systems, all of which remain the responsibility of the Contractor as
required by the Contract Documents. The Architect/Engineer's review of the Contractor's submittals
shall not relieve the Contractor of any obligations under Paragraphs 3.3, 3.5, and 3.12. The
Architect/Engineer's review shall not constitute approval of safety precautions or, unless otherwise
specifically stated in writing by the Architect/Engineer, of any construction means, methods, techniques,
sequences, or procedures. The Architect/Engineer's approval of a specific item shall not indicate
approval of an assembly of which the item is a component.
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(h) The Architect/Engineer will prepare Change Orders and may authorize minor changes in the Work as
provided in Paragraph 7.3.
(i) The Architect/Engineer will conduct inspections to determine the date or dates of Substantial
Completion and the date of final completion, will receive and forward to the Owner for the Owner's
review and records written warranties and related documents required by the Contract and assembled by
the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of
the Contract Documents.
(j) If the Owner and Architect/Engineer agree, the Architect/Engineer will provide one or more Project
representatives to assist in carrying out the Architect/Engineer's responsibilities at the site. The duties,
responsibilities, and limitations of authority of such Project representatives shall be as set forth in an
exhibit to be incorporated into the Contract Documents.
(k) The Architect/Engineer will interpret and make recommendations to the Owner concerning performance
under and requirements of the Contract Documents upon written request of either the Owner or
Contractor. The Architect/Engineer's response to such requests will be made with reasonable
promptness and within any time limits agreed upon. The ArchitectBngineer 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
terms of the Contract Documents. The term also includes all other disputes between the Owner and the
Contractor arising out of or relating to the Project or the Contract Documents, including but not limited
to claims that work was outside the scope of the Contract Documents. The responsibility to substantiate
the Claim and the burden of demonstrating compliance with this provision shall rest with the party
making the Claim. Except where otherwise provided in the Contract Documents, a Claim by the
Contractor, whether for additional compensation, additional time, or other relief, including but not
limited to claims arising from concealed conditions, MUST BE MADE BY WRITTEN NOTICE TO
THE ARCHITECT/ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS AFTER
OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM.
Every Claim of the Contractor, whether for additional compensation, additional time, or other relief,
including but not limited to claims arising from concealed conditions, shall be signed and sworn to by an
authorized corporate officer (if not a corporation, then an official of the company authorized to bind the
Contractor by his signature) of the Contractor, verifying the truth and accuracy of the Claim. THE
CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY
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1N ACCORDANCE WITH THE PROCEDURE AND TIME LIMITS SET OUT 1N THIS
PARAGRAPH.
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between the
Contractor and the Owner relating to the progress or execution of the Work or the interpretation of the
Contract Documents shall be referred to the Architect/Engineer for recommendation to the Owner,
which recommendation the Architect/Engineer will furnish in writing within a reasonable time, provided
proper and adequate substantiation has been received. Failure of the Contractor to submit the Claim to
the Architect/Engineer for rendering of a recommendation to the Owner shall constitute a waiver of the
Claim.
(c) Continuing Contract Performance. Pending final resolution of a claim the Contractor shall proceed
diligently with performance of the Work and the Owner shall continue to make payments in accordance
with the Contract Documents.
(d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time associated
with concealed or unlcnown conditions will normally be considered or allowed; provided, however, that
the Contract Sum or Time may be adjusted by the Owner in such circumstances only if:
(1) a concealed subsurface condition is encountered in the course of performance of the Work;
(2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by
the Contract Documents; or
(3) an unknown physical condition is encountered below the surface of the ground or in an existing
structure which is of an unusual nature and materially different from those ordinarily encountered
and generally recognized as inherent in the character of the Work; and
(4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph
4.3(a) of these General Conditions; and
(5) the Owner and the Architect/Engineer determine that:
(i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect
the portion of the Project site where the condition was discovered; and
(ii) the work caused or required by the concealed or unknown condition at issue can be considered
extra work to the extent that additional new Drawings must be prepared and issued and new
construction beyond the scope of the Contract Documents is required.
(e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE
1NFORMATION AND REPORTS (1NCLUDING BUT NOT LIMITED TO SOILS TESTING
REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS)
PROVIDED BY THE OWNER AND THE ARCHITECT/ENGINEER 1N 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 1N THE PROJECT SITE
INFORMATION AND REPORTS.
(� Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract
Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding to execute the
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Work. Prior notice is not required for claims relating to an emergency endangering life or property
arising under Paragraph 10.3. In addition, the Contractor's request for an increase in the Contract Sum
for any reason (other than work performed under emergency conditions) shall be made far enough in
advance of required work to allow the Owner and the Architect/Engineer a sufficient amount of time,
without adversely affecting the construction schedule, to review the request, prepare and distribute such
additional documents as may be necessary to obtain suitable estimates or proposals and to negotiate,
execute and distribute a Change Order for the required work if the Contractor believes that additional
cost is involved for reasons including but not limited to:
(1) a written interpretation from the Architect/Engineer;
(2) a written order for a minor change in the Work issued by the Architect/Engineer;
(3) failure of payment by the Owner;
(4) termination of the Contract by the Owner;
(5) the Owner's temporary suspension of all or any portion of the Work where the Contractor was not at
fault; or
(6) other reasonable grounds,
(g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to person or
property because of an act or omission of the Owner, or of any of the Owner's officers, employees or
agents, written, sworn-to notice of any claim for damages or injury shall be given as provided in
Subparagraph 4.3(a). The notice shall provide sufiicient detail to enable the Architect/Engineer and the
Owner to investigate the matter.
(h) Subcontractor Pass-Through Claims. In the event that any Subcontractor of the Contractor asserts a
claim to the Contractor that the Contractor seeks to pass through to the Owner under the Contract
Documents, any entitlement of the Contractor to submit and assert the claim against the Owner shall be
subject to:
(1) the requirements of Paragraph 4.3 of these General Conditions; and
(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:
(i) The Contractor shall either (A) have direct legal liability as a matter of contract, common law, or
statutory law to the Subcontractor for the claim that the Subcontractor is asserting or (B) the
Contractor shall have entered into a written liquidating agreement with the Subcontractor, under
which agreement the Contractor has agreed to be legally responsible to the Subcontractor for pursing
the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor
any amount that may be recovered, less Contractor's included markup (subject to the limits in the
Contract Documents for any markup). The liability or responsibilities shall be identified in writing
by the Contractor to the Owner at the time such claim is submitted to Owner, and a copy of any
liquidating agreement shall be included by the Contractor in the claim submittal materials.
(ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its submittal to Owner
and shall have independently evaluated such claim in good faith to determine the extent to which the
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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, if any, of the Contractor to
additional compensation for any acceleration shall be subject to the terms of this Subparagraph
(i).
(2) In the event that the Contractor is otherwise entitled to an extension of Contract Time and has
properly initiated a Claim for a time extension in accordance with Subparagraph 4.3(a) above,
the Owner shall have the right, in the Owner's sole discretion, to deny all, or any part, of the
Claim for extension of Contract Time by giving written notice to the Contractor provided within
fourteen (14) days after receipt of the Contractor's Claim. If the Owner denies the Contractor's
claim for an extension of Contract Time under this Clause (i)(2), either in whole or in part, the
Contractor shall proceed to prosecute the Work in such a manner as to achieve Substantial
Completion on or before the then existing Scheduled Completion Date.
(3) If the Contractor would have been entitled to a time extension for a reason specifically allowed
under the Contract Documents, for an amount of time that would have justified approval by the
Owner if not for the need and right to accelerate, the Contractor may initiate a Claim for
acceleration costs pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs
properly initiated by the Contractor under Subparagraph 4.3(a) above shall be limited to those
reasonable and documented direct costs of labor, materials, equipment, and supervision solely
and directly attributable to the actual acceleration activity necessary to bring the Work back
within the then existing approved construction schedule. These direct costs include the premium
portion of overtime pay, additional crew, shift, or equipment costs if requested in advance by the
Contractor and approved in writing by the Owner. A percentage markup for the prorated cost of
premium on the existing performance and payment bonds and required insurance, not to exceed
5%, will be allowed on the claimed acceleration costs. NO OTHER MARKUP FOR PROFIT,
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OVERHEAD (1NCLUDING BUT NOT LIMITED TO HOME OFFICE OVERHEAD) OR
ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The
Owner shall not be liable for any costs related to an acceleration claim other than those described
in this Clause (i)(3).
(i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver of claims by
the Owner except those arising from:
(1) claims, security interests, purported liens, or other attempted encumbrances arising out of the
Contract and remaining unsettled;
(2) defective or nonconforming Work appearing after Substantial Completion;
(3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion; or
(4) the terms of general and special warranties required by the Contract Documents or allowed or
implied by law.
(k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES AS A
PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS OR IN ANY
SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE 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.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS OF SUBCONTRACTOR
(a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform a portion of
the Work at the Project site or to supply materials or equipment to the Contractor by purchase or lease
for use in performance of or incorporation into the Work. The term "Subcontractor" is referred to
throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized
representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or
subcontractors of a separate contractor.
(b) A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to
perform a portion of the Work at the Project site or to supply materials or equipment to the
Subcontractor or another Sub-subcontractor by purchase or lease for use in performance of or
incorporation into the Work. The term "Sub-subcontractor" is referred to throughout the Contract
Documents as if singular in number and means a Sub-subcontractor or an authorized representative of
the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
(a) Immediately after the award of the Contract by the Owner, and before the Building Construction
Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish to the
Architect/Engineer in writing, for acceptance by the Owner and the Architect/Engineer, a list of the
names, addresses, telephone numbers, M/WBE certification numbers (where applicable), and type of
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work of the Subcontractors (including those who are to furnish materials or equipment fabricated to a
special design), proposed for the principal portions of the Work, including furnishings when made a part
of the Contract. The Contractor shall immediately notify the Owner in writing of any changes in the list
as they occur. The Architect/Engineer will promptly reply to the Contractor in writing stating whether or
not the Owner or the Architect/Engineer, after due investigation, has reasonable objection to any such
proposed person or entity. Failure of the Owner or Architect/Engineer to reply promptly shall constitute
notice of no reasonable objection.
(b) The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect/Engineer has made reasonable and timely objection.
(c) Architect/Engineer's and Owner's approval of or obj ection to any Subcontractor or of a particular
process or material will not relieve the Contractor of his responsibility for performance of Work as
called for under the Contract Documents, and shall not provide a basis for any claim for additional time
or money on the part of the Contractor. Approval shall not be construed to create any contractual
relationship between the Subcontractor and either the Owner or Architect/Engineer. In no event shall the
Contract Sum be increased as a result of the rejection of any Subcontractor.
(d) The Contractor shall not change a Subcontractor previously selected if the Owner or Architect/Engineer
makes reasonable objection to such change.
5.3 SUBCONTRACTUAL RELATIONS
(a) By appropriate agreement, written where legally required for validity, the Contractor shall require each
Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the
Contractor by the terms of the Contract Documents (including but not limited to these General
Conditions), and to assume toward the Contractor all the obligations and responsibilities which the
Contractor, by the Contract Documents, assumes toward the Owner and the Architect/Engineer. Each
subcontract agreement shall preserve and protect the rights of the Owner and the Architect/Engineer
under the Contract Documents (including but not limited to these General Conditions) with respect to
the Work to be performed by the Subcontractor so that subcontracting will not prejudice the rights of the
Owner and the Architect/Engineer. Where appropriate, the Contractor shall require each Subcontractor
to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each
proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract
Documents to which the Subcontractor is to be bound. Subcontractors shall similarly make copies of
applicable portions of such Documents available to their respective proposed Sub-subcontractors.
(b) The Contractor is solely responsible for making payments properly to the Contractor's Subcontractors
on the Project. During performance of the Work, the Contractor shall comply with the following
additional rules regarding Subcontractor payments:
(1) The Contractor shall submit, beginning with the Second Application and Certificate for Payment, a
Subcontractor Payment Report (the "Report") with each Application and Certificate for Payment.
The Report shall show all payments made to date by the Contractor (plus existing retainage) to each
Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by
the Owner. As an alternative to the Report, the Contractor may furnish Affdavits 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.
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(2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute or other
problem with performance, the Contractor shall note the amount withheld and that payment is in
dispute. The Owner may require the Contractor to document and verify the dispute or other problem
in question.
(3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to
Paragraph 9.5(a) of the General Conditions, should it appear from the Report, statements of payment
received or other information furnished to the Owner that:
(i) the Report has not been properly completed;
(ii) the Contractor has knowingly provided false information regarding payment of any
Subcontractor; or
(iii) the Contractor has otherwise failed to make payments properly to any Subcontractor.
(4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR
ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT OF THE OWNER'S
OR ARCHITECT/ENGINEER'S ENFORCEMENT OF THIS SUBPARAGRAPH 5.3(b). NO
PROVISION OF THIS SUBPARAGRAPH OR ANY OF THE CONTRACT DOCUMENTS
SHALL BE CONSTRUED TO CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR
IMPLIED, BETWEEN ANY SUBCONTRACTOR AND EITHER THE OWNER OR THE
ARCHITECT/ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY
SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY
BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE CONTRACTOR.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall, if
requested in writing by the Owner, within fifteen (15) days after the date notice of termination is sent,
deliver and assign to Owner, or any person or entity acting on the Owner's behalf, any or all subcontracts
made by Contractor in the performance of the Work, and deliver to the Owner true and correct originals
and copies of the subcontract documents. In the event assignment is not requested by the Owner,
Contractor shall terminate all subcontracts to the extent that Owner has not directed assignment of same
and to the extent that they relate to the performance of Work terminated by the notice of termination.
ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE
CONTRACTS
(a) The Owner reserves the right to perform construction or operations related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the Project or
other construction or operations on the Project site under Conditions of the Contract identical or
substantially similar to these General Conditions, including those portions related to insurance and
waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such
action by the Owner, the Contractor shall make a claim as provided elsewhere in and in accordance with
the Contract Documents.
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(b) When separate contracts are awarded for different portions of the Project or other construction or
operations on the Project site, the term "Contractor" in the Contract Documents in each case shall mean
the Contractor who executes each separate Building Construction Services Agreement with the Owner.
(c) The Owner shall provide for coordination of the activities of the Owner's own forces and of each
separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor
shall participate with other separate contractors and the Owner in reviewing their construction schedules
when directed to do so. The Contractor shall, with the approval of the Owner, make any revisions to the
construction schedule deemed necessary after a joint review and mutual agreement. The construction
schedules shall then constitute the schedules to be used by the Contractor, separate contractors, and the
Owner until subsequently revised by mutual agreement or by written Change Order. If the Contractor
believes it is entitled to an adjustment of the Contract Sum under the circumstances, the Contractor shall
submit a written proposal for a Change Order pursuant to Article 7 of the General Conditions. In the
event the Contractor's Change Order proposal is denied by the Owner, the Contractor must submit any
Claim pursuant to Paragraph 4.3 of the General Conditions.
(d) Unless otherwise provided in the Contract Documents, when the Owner performs construction or
operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject
to the same obligations and to have the same rights which apply to the Contractor under these General
Conditions, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10,
11 and 12.
6.2 MUTUAL RESPONSIBILITY
(a) The Contractor shall afford the Owner and separate contractors' reasonable opportunity for access to and
storage of their materials and equipment and the performance of their activities and shall coordinate the
Contractor's construction and operations with the separate contractors as required by the Contract
Documents.
(b) If part of the Contractor's Work depends for proper execution or results upon construction or operations
by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the
Work, promptly report to the Architect/Engineer apparent discrepancies or defects in the other
construction that would render it unsuitable for proper execution and results. Failure of the Contractor to
so report shall constitute an acknowledgment that the Owner's or separate contractors completed or
partially completed construction is fit and proper to receive the Contractor's Work, except as to defects
not then reasonably discoverable.
(c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor due to the fault
or negligence of a separate contractor or through failure of a separate contractor to carry out the
directions of the Owner or the Architect/Engineer. Should any interference occur between the Contractor
and a separate contractor, the Architect/Engineer or the Owner may furnish the Contractor with written
instructions designating priority of effort or change in methods, whereupon the Contractor shall
immediately comply with such direction. In such event, the Contractor shall be entitled to an extension
of the Contract Time only for unavoidable delays verified by the Architect/Engineer; no increase in the
Contract Sum, however, shall be due to the Contractor.
(d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or
partially completed construction or to property of the Owner or separate contractors as provided in
Subparagraph 10.2(e).
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(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.
( fl The Owner and each separate contractor shall have the same responsibilities for cutting and patching as
are described for the Contractor in Paragraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under
their respective contracts for maintaining the Project site and surrounding area free from waste materials and
rubbish as described in Paragraph 3.15, the Owner may clean up and allocate the cost among those
responsible as the Architect/Engineer recommends to be just.
ARTICLE 7 AMENDMENTS
7.1 CHANGE ORDERS
(a) A Change Order is a written order to the Contractor, signed by the Owner and the Architect/Engineer,
issued after execution of the Contract, authorizing a change in the Work, an adjustment in the Contract
Sum, or an adjustment to the Contract Time, consistent with other applicable provisions of this Contract.
The Owner, without invalidating the Contract and without requiring notice of any kind to the sureties,
may order changes to the scope of Work under the Contract by additions, deletions, or other revisions,
the Contract Sum and Contract Time to be adjusted consistent with other applicable provisions of this
Contract. All Change Orders shall be executed on a Change Order form approved by the Owner and the
Owner's City Attorney.
(b) In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change Orders to
verify and confirm the terms and conditions established by Change Order; however, should the
Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the
change directed by the Owner and the Architect/Engineer to the best of his ability in accordance with the
provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of
the changes approved, including the adjustment in the Contract Sum or the Contract Time. EACH
CHANGE ORDER SHALL BE SPECIFIC AND F1NAL AS TO PRICES AND EXTENSIONS OF
TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE
ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR CHANGES
IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER. The execution of a Change
Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the
ordered changes in the Work. The Contractor forever releases any claim against the Owner for
additional time or compensation for matters relating to or arising out of or resulting from the Work
included within or affected by the executed Change Order. This release applies to claims related to the
cumulative impact of all Change Orders and to any claim related to the effect of a change on other
Work.
(c) No extra work (except under emergency conditions) or changes shall be made nor shall any
substitutions, changes or additions to or omissions or deviations from the requirements of the Drawings
and Specifications be made unless pursuant to a written Change Order signed by the Owner and the
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Architect/Engineer, it being expressly understood that the Owner shall not be liable for the cost of extra
work or any substitution, change, addition, omission or deviation from the requirements of the Drawings
or Specifications unless the same shall have been authorized in writing by the Owner and the
Architect/Engineer in a written change order or other Amendment. The provisions of this Paragraph 7.1
shall control in the event of any inconsistency between such provisions and the other provisions of this
Article 7. See Subparagraph 10.3(a) of the General Conditions for Change Orders under emergency
conditions.
(d) The method of determining the cost or credit to the Owner for any change in the Work shall be one of
the following:
(1) mutual acceptance of a not-to-exceed lump sum amount properly itemized and supported by
sufficient substantiating data to permit evaluation;
(2) unit prices stated in the Contract Documents or subsequently agreed upon;
(3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or
percentage fee; or
(4) the force account method provided in Subparagraph 7.1(e)
(e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1), (d) (2),
or (d) (3), or if the parties agree to a method but cannot agree to a final dollar figure, or if the Contractor
for whatever reason refuses to sign the Change Order in question, the Contractor, provided he receives a
written order signed by the Owner, shall promptly proceed with the Work involved. The cost of the
Work involved shall then be calculated on the basis of the reasonable jobsite expenditures and savings of
those performing the Work attributable to the changes, including a reasonable allowance for overhead
and profit, such allowance in any case never to exceed 15%. In such case, the Contractor shall keep an
itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate
supporting data as the Architect/Engineer and Owner may prescribe. Sworn copies of the itemized
accounting shall be delivered to the Architect/Engineer each day during the performance of force
account work, with copies to the Owner.
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
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(5) additional costs of supervision and field office personnel directly attributable to the changed Work.
Pending final determination of cost to the Owner, payment of undisputed amounts on force account
shall be included on the Architect/Engineer's Certificate of Payment as work is completed.
(� 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 (� shall also apply to the negotiation and execution of Supplemental
Agreements.
7.3 MINOR CHANGES IN THE WORK
The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work
not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent
with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be
binding on the Owner and the Contractor. The Contractor shall carry out such written orders promptly.
These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time.
Contractor shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3 unless
the Contractor submits its change proposal, prior to complying with the minor change ordered and in no
event later than ten (10) working days from the date the minor change was ordered, to the Owner for
approval.
7.4 TIME REQUIRED TO PROCESS AMENDMENTS
(a) All of the Contractor's responses to proposal requests shall be accompanied by a complete, itemized
breakdown of costs. Responses to proposal requests shall be submitted sufficiently in advance of the
required work to allow the Owner and the Architect/Engineer a minimum of thirty (30) calendar days
after receipt by the Architect/Engineer to review the itemized breakdown and to prepare or distribute
additional documents as may be necessary. All of the Contractor's responses to proposal requests shall
include a statement that the cost described in the response represents the complete, total and final cost
and additional Contract Time associated with the extra work, change, addition to, omission, deviation,
substitution, or other grounds for seeking extra compensation under the Contract Documents, without
reservation or further recourse.
(b) All Amendments require approval by either the City Council or, where authorized by the state law and
City ordinance, by the City Manager pursuant to Administrative Action. The approval process requires a
minimum of forty-five (45) calendar days after submission to the Owner in final form with all
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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 1NCREASE IN THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS A
RESULT OF THIS PROCESS. Pending the approval described above, the Contractor will proceed with
the work under a pending Amendment only if directed in writing by the Owner.
ARTICLE 8 CONTRACT TIME
8.1 DEFINITIONS
(a) Unless otherwise provided, the Contract Time is the period of time, including authorized adjustments,
allotted in the Contract Documents for Substantial Completion of the Work.
(b) The date of commencement of the Work is the date established in the notice to proceed from the Owner.
The date of commencement shall not be postponed by the failure of the Contractor, or of persons or
entities for whom the Contractor is responsible to act promptly to commence the Work. If the Owner
unreasonably delays the issuance of the notice to proceed through no fault of the Contractor, the
Contractor shall be entitled only to an equitable extension of the Contract Time; the Contract Sum shall
remain unchanged.
(c) The date of Substantial Completion is the date certified by the Architect/Engineer in accordance with
Paragraph 9.7.
(d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning and ending at
12:00 midnight, unless otherwise specifically defined by special provision.
8.2 PROGRESS AND COMPLETION
(a) Time limits stated in the Contract Documents are of the essence of the Contract. By executing the
Building Construction Services Agreement, the Contractor confirms that the Contract Time is a
reasonable period for performing the Work.
(b) The Contractor shall not knowingly, except by agreement with or instruction of the Owner in writing,
prematurely commence operations on the Project site or elsewhere prior to the effective date of
insurance to be furnished by the Contractor as required by Article 11. The date of commencement of the
Work shall not be changed by the effective date of insurance required by Article 11.
(c) Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces, materials, and
equipment, and shall achieve Substantial Completion within the Contract Time. If the Contractor fails or
refuses to complete the Work within the Contract Time as specified in the Bid Proposal form, the
Building Construction Services Agreement, or in any proper extension of the Contract Time granted by
the Owner, then the 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 difiiculty 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
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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 to 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 Sum. The Owner shall be the sole judge as to whether or not the Work has been Substantially
Completed within the calendar days allotted, which shall include the original Contract Time and any
proper extension of the Contract Time granted in writing by the Owner. Should the 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.
8.3 DELAYS AND EXTENSIONS OF TIME
(a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the Owner or
Architect/Engineer, or of an employee of either, or of a separate contractor employed by the Owner, or
by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable
casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending
a claim, or by other causes which the Architect/Engineer determines may justify delay, then the Contract
Time shall be extended by Change Order for such reasonable time as the Architect/Engineer and Owner
may determine.
(b) Claims relating to Contract Time and time extensions shall be made in accordance with the applicable
provisions of Paragraph 4.3.
(c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT
DOCUMENTS, 1NCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE
MADE TO THE CONTRACT SUM AND THE CONTRACTOR SHALL NOT BE ENTITLED TO
CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING
OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR
1NTERFERENCE, 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.
(� The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend the Work, in
whole or in part, for such period or periods as the Architect/Engineer deems necessary due to unusual or
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severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due
to failure on the part of the Contractor to correct conditions considered unsafe for workmen or the
general public. If it should become necessary to stop the Work for an indefinite period, the Contractor
shall store all materials in such a manner that they will not obstruct or impede the public unnecessarily
or become damaged in any way, and shall take every precaution to prevent damage or deterioration of
the Work performed. In cases of suspension of the Work under this Subparagraph, the Contractor shall
also provide suitable drainage about the Work and erect temporary structures where necessary. The
Contractor shall not suspend the Work in whole or in part without written authority from the
Architect/Engineer or the Owner, and shall resume the Work promptly when notified by the
Architect/Engineer or the Owner to resume operations.
(g) In the event of a delay that is the responsibility of the Contractor or any of the Subcontractors, for which
the Contractor is not entitled to a time extension under the provisions of this Contract, the Owner may
direct that the Work be accelerated by means of overtime, additional crews or additional shifts, or
resequencing. This acceleration shall be at no cost to the Owner and will continue until the Contract
Time is restored. In the event of a delay for which the Contractor is entitled to a time extension, as
determined by the Architect/Engineer, Owner may similarly direct acceleration and the Contractor
agrees to perform same on the basis that the Contractor will be reimbursed only to the extent described
in Subparagraph 4.3(i). THE CONTRACTOR EXPRESSLY WAIVES ANY OTHER
COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR
PRODUCTIVITY OR EFFICIENCY.
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum is stated in the Building Construction Services Agreement and, including authorized
adjustments, is the total amount of compensation payable by the Owner to the Contractor for the
performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
Before the first Application for Payment, the Contractor shall submit to the Architect/Engineer a schedule of
values allocated to various portions of the Work, prepared in such form and supported by such data to
substantiate its accuracy as the Architect/Engineer may require. This schedule, when approved by the
Architect/Engineer and the Owner, shall be used as a basis for the Contractor's Application for Payment.
The schedule of values shall follow the trade division of the Specifications. Contractor's Application for
Payment shall be filed on the current version of AIA Form G702 (Application and Certificate for Payment),
as approved by the Owner.
9.3 APPLICATIONS FOR PAYMENT
(a) At least ten (10) days before the date established for each progress payment, the Contractor shall submit
to the Architect/Engineer an itemized Application for Payment for Work completed in accordance with
the schedule of values. The Application shall be notarized, if required, and supported by data
substantiating the Contractor's right to payment as the Owner or Architect/Engineer may require,
including but not limited to copies of requisitions from Subcontractors and material suppliers, and
reflecting the applicable retainage as required in the Contract Documents. Contractor's Application for
Payment shall also provide other supporting documentation as the Owner or the other applicable
provisions of the Contract Documents may require.
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(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:
(i) the Owner has given prior approval of such off-site storage in writing;
(ii) 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
(iii) the materials or equipment stored off-site will be incorporated into the Work within thirty (30) days
after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR THE
CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS
EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING.
(d) The Contractor warrants that title to all Work covered by an Application for Payment will pass to the
Owner no later than the time of payment. The Contractor further warrants that upon submittal of an
Application for Payment all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall be free and clear of liens, claims, security interests or
encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities
making a claim by reason of having provided labor, materials, and equipment relating to the Work.
(e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an approved
schedule for delivery to the Project site shall be classified as an"early delivery." All early delivery
materials or equipment must have the express written permission of the Owner to be stored on the
Project site. If any unauthorized early delivery occurs, Contractor shall, at Contractor's expense or at the
expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the
Project site and stored off-site until required at the Project site. All costs of labor, transportation and
storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized
early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole
expense, and amounts may be withheld from the Contractor's Application for Payment to reimburse the
Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT
BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY
MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR
THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as
early delivery will not be approved for payment as stored materials prior to thirty (30) days before the
incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date
is expressly approved in writing by the Owner.
(� If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are not
furnished by the Contractor, no payment applied for will be payable under the Contract until the Work
has been Finally Completed and accepted.
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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
m:
(1) City of Denton General Conditions for Building Construction.
(2) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA Form
G702 (Application and Certiiicate for Payment) as approved by the Owner.
(3) 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:
(i) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work;
(ii) reviewed construction means, methods, techniques, sequences or procedures;
(iii) 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
(iv) made examination to ascertain how or for what purpose the Contractor has used money
previously paid on account of the Contract Sum.
(4) Whenever the Application for Payment for Work done since the last previous Application for
Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a percentage of the
Application, less applicable retainage, to the Contractor within thirty (30) days following Owner's
receipt and approval of the Certificate for Payment certified by the Architect/Engineer. The
Application may include acceptable nonperishable materials delivered to the Work or stored as
provided for in Paragraph 9.3(c) and the payment will be allowed on the net invoice value, less taxes
and applicable retainage.
(5) 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/Engineer, and final
acceptance of the Work by the Owner. Unless otherwise required by state law, the retainage
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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.
(6) No progress payments shall be made on contracts where performance and payment bonds are not
required or furnished. In such instances, payment for the Work performed will be made upon final
completion and acceptance by the Owner of all Work.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
(a) The Architect/Engineer or the Owner may decide not to certify payment and may withhold a Certificate
for Payment in whole or in part, to the extent reasonably necessary to protect the Owner's interest, if in
the Architect/Engineer's or Owner's opinion the representations to the Owner required by Subparagraph
9.4(b) cannot be made. If the Architect/Engineer or the Owner is unable to certify payment in the
amount of the Application, the Architect/Engineer or the Owner will notify the Contractor as provided in
Subparagraph 9.4(a). If the Contractor and Architect/Engineer or the Owner cannot agree on a revised
amount, the Architect/Engineer will promptly issue a Certificate for Payment for the amount for which
the Architect/Engineer is able to make the required representations to the Owner. The
Architect/Engineer or the Owner may also decide not to certify payment or, because of subsequently
discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for
Payment previously issued to such extent as may be necessary, in the Architect/Engineer's or Owner's
opinion, to protect the Owner from loss because of:
(1) defective or nonconforming Work not remedied;
(2) third party claims filed or reasonable evidence indicating probable filing of such claims;
(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 terms of the Contract Documents or otherwise and
regardless of whether or not the debt due to the Owner has been reduced to judgment by a court.
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9.6 PROGRESS PAYMENTS
(a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make payment in the
manner and within the time provided in the Contract Documents, and shall so notify the
Architect/Engineer. The Owner shall not be liable for interest on any late or delayed progress payment
or final payment caused by any claim or dispute, any discrepancy in quantities, any failure to provide
supporting documentation or other information required with the Application for Payment or as a
precondition to payment under the Contract Documents, or due to any payment the Owner or the
Architect/Engineer has a right to withhold or not certify under the Contract Documents. Notwithstanding
the foregoing, the Owner may refuse to make payment on any Certificate for Payment (including,
without limitation, the final Certificate for Payment) for any default under the Contract Documents,
including but not limited to those defaults set forth in Subparagraph 9.5(a), Clauses (1) through (7). The
Owner shall not be deemed in default by reason of withholding payment while any Contractor default
remains uncured.
(b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of
the amount paid to the Contractor on account of each Subcontractor's portion of the Work, the amount
to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the
Contractor on account of such Subcontractors portion of the Work. The Contractor shall, by appropriate
agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors
in similar manner.
(c) The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information regarding
percentages of completion or amounts applied for by the Contractor and action taken thereon by the
Architect/Engineer and the Owner on account of portions of the Work done by such Subcontractor.
(d) Neither the Owner nor the Architect/Engineer shall have an obligation to pay or to see to the payment of
money to a Subcontractor except as may otherwise be required by law. That obligation belongs to the
Contractor or, in the event of the Contractor's failure to pay a Subcontractor, to the Surety on the
Payment Bond as required under Paragraph 11.3.
(e) Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs
9.6(b), (c), and (d).
(� A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the
Owner shall not constitute acceptance of Work not performed in accordance with the Contract
Documents.
9.7 SUBSTANTIAL COMPLETION
(a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date certifed
by the Architect/Engineer when construction is sufficiently completed in accordance with the City Of
Denton General Conditions For Building Construction.
(1) the Contract Documents such that the Owner may beneficially occupy and use the Work, or
designated portions of the Work, for the purposes for which it is intended and only trivial and
insignificant items remain which do not affect the Work as a whole.
(2) 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
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Contractor shall proceed promptly to complete and correct items on the list (hereinafter called the
"punch list"). Failure to include an item on the punch list does not alter the responsibility of the
Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the
punch list, the Architect/Engineer will make an inspection to determine whether the Work, or
designated portion of the Work, is Substantially Complete. If the Architect/Engineer's inspection
discloses any item, whether or not included on the punch list, which is not in accordance with the
requirements of the Contract Documents and which renders the Work inspected not Substantially
Complete the Contractor shall, before issuance of the Certificate of Substantial Completion,
complete or correct the item upon notification by the Architect/Engineer. The Contractor shall then
submit a request for another inspection by the Architect/Engineer to determine Substantial
Completion. When the Work or designated portion of the Work is Substantially Complete, the
Architect/Engineer will prepare a Certificate of Substantial Completion which shall establish the
date of Substantial Completion, shall establish responsibilities of the Owner and the Contractor for
security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time
within which the Contractor shall finish all items on the punch list accompanying the Certificate.
(3) 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.
(4) 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 11.2(e) and
authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may
commence whether or not the portion is Substantially Complete, provided the Owner and Contractor
have accepted in writing the responsibilities assigned to each of them for payments, retainage if any,
security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing
concerning the period for correction of the Work and commencement of warranties required by the
Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor
shall prepare and submit a list to the Architect/Engineer as provided under Subparagraph 9.7(a)(2).
Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of
the progress of the Work shall be determined by written agreement between the Owner and Contractor
or, if no agreement is reached, by decision of the Architect/Engineer.
(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.
9.9 FINAL COMPLETION AND FINAL PAYMENT
(a) Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon
receipt of a final Application for Payment, the Architect/Engineer, accompanied by the Owner's
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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 far Payment will
constitute a further representation that conditions listed in Subparagraph 9.9(b) as a condition precedent
to the Contractor's being entitled to final payment have been fulfilled. Owner will normally make final
payment within thirty (30) days after Owner's receipt and approval of the final Certificate for Payment.
Warranties required by the Contract Documents shall commence on the date of Substantial Completion
of the Work, unless otherwise provided by separate agreement between the Owner and the Contractor.
(b) Neither final payment nor any remaining retained percentage shall become due until the Contractor
submits to the Architect/Engineer:
(1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with
the Work for which the Owner or the Owner's property might be responsible or encumbered (less
amounts withheld by Owner) have been paid or otherwise satisfied;
(2) a certificate evidencing that insurance required by the Contract Documents to remain in force after
final payment is currently in effect and will not be cancelled or allowed to expire until at least thirty
(30) days prior written notice has been given to the Owner;
(3) a written statement that the Contractor knows of no substantial reason that the insurance will not be
renewable to cover the period required by the Contract Documents;
(4) a consent of surety to final payment; and
(5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as
receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the
Contract, to the extent and in such form as may be designated by the Owner.
(c) As a precondition to final payment by the Owner under this Contract, the Contractor's affidavit under
Clause (b)(1) shall state that the Contractor has paid each of his subcontractors, laborers or materialmen
in full for all labor and materials provided to him for the Work under this Contract. In the event the
Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Contractor shall
state in the affidavit the amount owed and the name of each subcontractor, laborer or materialmen to
whom such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE REQUIRED TO
EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF F1NAL PAYMENT AND RELEASE AS A
PRECONDITION TO RECEIPT OF FINAL PAYMENT.
(d) If, after Substantial Completion of the Work, final completion of the Work is materially delayed through
no fault of the Contractor or by issuance of Change Orders affecting final completion and the
Architect/Engineer confirms the delay, the Owner shall, upon application by the Contractor and
certification by the Architect/Engineer, and without terminating the Contract, make payment of the
balance due for that portion of the Work fully completed and accepted. If the remaining balance for
Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if
bonds have been furnished, the written consent of surety to payment of the balance due for that portion
of the Work fully completed and accepted shall be submitted by the Contractor to the Architect/Engineer
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prior to certification of payment. Payment shall be made under terms and conditions governing fnal
payment, except that it shall not constitute a waiver of claims.
(e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete release of
the Owner from all claims or liabilities under the Contract, for anything done or furnished or relating to
the Work or the Project, or for any act or neglect of the Owner relating to or connected with the Work or
the Project.
ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL
COMPLIANCE
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Contract, and will comply with all applicable City,
County, State and Federal health and safety regulations.
10.2 SAFETY OF PERSONS AND PROPERTY
(a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to
prevent damage, injury or loss to:
(1) employees on the Work and other persons who may be affected thereby;
(2) the Work and materials and equipment to be incorporated therein, whether in storage on or off the
site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-
subcontractors; and
(3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements,
roadways, structures and utilities not designated for removal, relocation or replacement in the course
of construction.
(b) The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and
lawful orders of public authorities bearing on safety of persons or property or their protection from
damage, injury or loss.
(c) The Contractor shall erect and maintain, as required by existing conditions and performance of the
Contract, reasonable safeguards for safety and protection, including posting danger signs and other
warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent
sites and utilities.
(d) When use or storage of explosives or other hazardous materials or equipment or unusual methods are
necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such
activities under supervision of properly qualified personnel.
(e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner shall have the
right to pre-approve the use of any explosives on the Project; the Contractor shall not assume in its bid
that permission to use explosives will be granted. The Owner shall NOT be liable for any claim for
additional time or compensation as a result of the Owner's denial of permission to use explosives. Where
use of explosives is permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY
RESPONSIBLE for the determination as to whether explosives shall actually be used, and for any result
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from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD
COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the Architect/Engineer
against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death),
property damage or other harm for which recovery of damages is sought, suffered by any person or
persons, as the result of the use, handling or storage of the explosives by the Contractor or any
Subcontractor, REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS
NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR 1NJURY WAS
CONTRIBUTED TO 1N ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS
OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE
ARCHITECT/ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR
REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this Contract, this
paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this
Contract and is not intended to create or grant any rights, contractual or otherwise, to or for any other
person or entity. The Contractor shall furnish the Owner and the Architect/Engineer with evidence of
insurance sufficient to cover possible damage or injury, which insurance shall either include the Owner
and the Architect/Engineer as additional insureds or be sufficiently broad in coverage as to fully protect
the Owner and the Architect/Engineer. All explosives shall be stored in a safe and secure manner, under
the care of a competent watchman at all times, and all storage places shall be marked clearly
"DANGEROUS-EXPLOSIVES." The method of storing and handling explosives and highly flammable
materials shall conform to Federal and State laws, City of Denton ordinances, and the City of Denton
Fire Department regulations. The Contractor shall notify any telecommunications and public utility
company and any private property owners having structures in the proximity of the Project Site of the
Contractor's intention to use explosives, and such notice shall be given sufficiently in advance to enable
the telecommunications and public utility companies and private property owners to take such steps as
they may deem necessary to protect their property from injury. The notice shall not relieve the
Contractor of any responsibility for damage resulting from any blasting operations.
(� The Contractor shall promptly remedy damage and loss (other than damage or loss insured under
property insurance required by the Contract Documents) to property referred to in Clauses 10.2(a)(2)
and 10.2(a)(3) caused in whole or in part by the Contractor, a Subcontractor, or anyone directly or
indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the
Contractor is responsible under Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to
acts or omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed by
either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault
or negligence of the Contractor or any of its Subcontractors. The foregoing obligations of the Contractor
are in addition to the Contractor's obligations under Paragraph 3.19. 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 permit any part of the Work or the Project site to be loaded so as to
endanger its safety.
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10.3 EMERGENCIES
In an emergency affecting safety, health, or security of persons or property, the Contractor shall act, at the
Contractor's discretion, to prevent threatened damage, injury, or loss. Additional compensation or
extension of time claimed by the Contractor on account of an emergency shall be determined as provided
in Paragraph 4.3 and Article 7.
10.4 PUBLIC CONVENIENCE AND SAFETY
(a) The Contractor shall place materials stored about the Work and shall conduct the Work at all times in
a manner that causes no greater obstruction to the public than is considered necessary by the Owner.
Sidewalks or streets shall not be obstructed, except by special permission of the Owner. The materials
excavated and the construction materials or plant used in the performance of the Work shall be placed
in a manner that does not endanger the Work or prevent free access to all fire hydrants, water mains
and appurtenances, water valves, gas valves, manholes for the telephone, telegraph signal or electric
conduits, wastewater mains and appurtenances, and fire alarm or police call boxes in the vicinity.
(b) The Owner reserves the right to remedy any neglect on the part of the Contractor in regard to public
convenience and safety which may come to the Owner's attention, after twenty-four (24) hours notice
in writing to the Contractor. In case of an emergency, the Owner shall have the right to immediately
remedy any neglect without notice. In either case, the cost of any work done by the Owner to remedy
the Contractor's neglect shall be deducted from the Contract Sum. The Contractor shall notify the City
Traffic Control Department when any street is to be closed or obstructed. The notice shall, in the case
of major thoroughfares or street upon which transit lines operate, be forty-eight (48) hours in advance.
The Owner reserves the right to postpone or prohibit any closure or obstruction of any streets or
thoroughfares to the extent necessary for the safety and benefit of the traveling public. The Contractor
shall, when directed by the Architect/Engineer or the Owner, keep any street or streets in condition for
unobstructed use by City departments. When the Contractor is required to construct temporary bridges
or make other arrangements for crossing over ditches or around structures, the Contractor's
responsibility for accidents shall include the roadway approaches as well as the crossing structures.
10.5 BARRICADES, LIGHTS AND WATCHMEN
If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall, at the
Contractor's own cost and expense, furnish, erect and maintain sufficient barricades, fences, lights and
danger signals, shall provide sufficient watchmen, and shall take such other precautionary measures as are
necessary for the protection of persons or property and of the Work. All barricades shall be painted in a
color that will be visible at night, shall indicate in bold letters thereon the Contractor's name and shall be
illuminated by lights from sunset to sunrise. The term "lights," as used in this Paragraph, shall mean
flares, flashers, or other illuminated devices. A sufficient number of barricades with adequate markings
and directional devices shall also be erected to keep vehicles from being driven on or into any Work under
construction. The Contractor will be held responsible for all damage to the Work due to failure of
barricades, signs, lights and watchmen to protect the Work. Whenever evidence is found of such damage,
the Architect/Engineer may order the damaged portion immediately removed and replaced by the
Contractor at Contractor's cost and expense. The Contractor's responsibility for maintenance of barricades,
signs, and lights, and for providing watchmen, shall not cease until the Project has been finally accepted
by the Owner.
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10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED
In case it is necessary to change or move the property of the Owner or of any telecommunications or
public utility, such property shall not be removed or interfered with until ordered to do so by the
Architect/Engineer. The right is reserved to the owner of any public or private utilities to enter upon the
Project site for the purpose of making such changes or repairs of their property that may become necessary
during the performance of the Work. The Owner reserves the right of entry upon the Project site for any
purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and
for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall
conform to the Contractor's current and approved schedule for the performance of the Work, provided that
proper notification of schedule requirements has been given to the Owner by the Contractor.
10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS
When existing storm sewers or drains have to be taken up or removed, the Contractor shall at his own
expense provide and maintain temporary outlets and connections for all public and private storm sewers
and drains. The Contractor shall also take care of all storm sewage and drainage which will be received
from these storm drains and sewers; for this purpose, the Contractor shall provide and maintain, at the
Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The
Contractor shall, at the Contractor's own expense, construct such troughs, pipes, or other structures
necessary and shall be prepared at all times to dispose of storm drainage and sewage received from these
temporary connections until such time as the permanent connections are built and in service. The existing
storm sewers and connections shall be kept in service and maintained under the Contract, except where
specified or ordered to be abandoned by the Architect/Engineer. All storm water and sewage shall be
disposed of in a satisfactory manner so that no nuisance is created and that the Work under construction
will be adequately protected.
10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER;
ELECTRICITY FOR THE PROJECT
(a) When the Contractor desires to use the Owner's water in connection with the Work, the Contractor shall
make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be
responsible for the cost of the water the Contractor uses. Where meters are used, the charge will be at
the regular established rate; where no meters are used, the charge will be as prescribed by City
ordinance, or where no ordinance applies, payment shall be based on estimates made by the Denton
Water Utilities Department.
(b) The Contractor shall make complete and satisfactory arrangements for electricity and metered electrical
connections with the Owner or with Denton Municipal Electric in the event that separately metered
electrical connections are required for the Project. The Contractor shall pay for all electricity used in the
performance of the Work through separate metered electrical connections obtained by the Contractor
through the City of Denton.
10.9 USE OF FIRE HYDRANTS
The Contractor, Subcontractors, and any other person working on the Project shall not open, turn off,
interfere with, attach any pipe or hose to, or connect anything with any fire hydrant, stop valve, or stop
cock, or tap any water main belonging to the Owner, unless duly authorized to do so by the Denton Water
Utilities Department in accordance with the Denton City Code.
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10.10 ENVIRONMENTAL COMPLIANCE
(a) The Contractor and its Subcontractors are deemed to have made themselves familiar with and at all
times shall comply with all applicable federal, state or local laws, rules, regulations, ordinances, and
rules of common law now in effect (including any amendments now in effect), relating to the
environment, Hazardous Substances or exposure to Hazardous Substances, including but not limited
to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C.A. §§ 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the
Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control
Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe
Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any current judicial or administrative
interpretation of these laws, rules, regulations, ordinances, or rules of common law, including but not
limited to any judicial or administrative order, consent decree, or judgment affecting the Project.
(b) In the event the Contractor encounters on the site materials reasonably believed to be a Hazardous
Substance that have not been rendered harmless, and removal of such materials is not a part of the
scope of Work required under the Contract Documents, the Contractor shall immediately stop Work
in the affected area and report in writing the facts of such encounter to the Architect/Engineer and
the Owner. Work in the affected area shall not thereafter be resumed except by written order of the
Owner unless and until the material is determined not to be a Hazardous Substance or the Hazardous
Substance is remediated. The Owner may choose to remediate the Hazardous Substance with a
separate contractor or through a Change Order with the Contractor. If the Owner determines that the
Hazardous Substance exists in the affected area due to the fault or negligence of the Contractor or
any of its Subcontractors, the Contractor shall be responsible for remediating the condition at the
sole expense of the Contractor in accordance with the Contractor's APPROVED Spill Remediation
Plan. An extension of the Contract Time for any delay in the progress schedule caused as a result of
the discovery and remediation of a Hazardous Substance may be granted by the Owner only if all
remaining Work on the Project must be suspended and the delay cannot be made up elsewhere in the
progress schedule. Any request for an extension of the Contract Time related to the discovery and
remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8.
(c) The Contractor shall be responsible for identification, abatement, cleanup, control, removal,
remediation, and disposal of any Hazardous Substance brought into or upon the site by the
Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and all permits
necessary for the legal and proper handling, transportation, and disposal of the Hazardous Substance
and shall, prior to undertaking any abatement, cleanup, control, removal, remediation, and disposal,
notify the Owner and the Architect/Engineer so that they may observe the activities; provided,
however, that it shall be the Contractor's sole responsibility to comply with all applicable laws,
rules, regulations, or ordinances governing the activities.
(d) Spill Prevention Plan. At least seventy-two (72) hours prior to commencing performance of any of
the Work at the Project site, the Contractor shall submit to the Owner for review and approval a Spill
Prevention and Response Plan (SPRP) meeting the requirements of federal and state law, rules, and
regulations. The SPRP shall be specially designed for the Contractor's planned work methods and
procedures. The SPRP shall be designed to complement all applicable safety standards, fire
prevention regulations, and pollution prevention policies and procedures. The SPRP shall include
estimates of the quantity and rate of flow should equipment fail, and detail containment or
diversionary structures to prevent spills from leaving the site or migrating into adjacent properties or
navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable
twenty-four (24) hour emergency phone numbers, including without limitation that of the Owner's
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Project Manager or other designated representative. The Contractor shall not commence any field
work prior to approval of such plan by the Owner. The following additional rules shall apply with
respect to spills caused by the Contractor or a Subcontractor:
(1) The Contractor shall immediately report any spill or release at the Project site, whether or not it
is associated with this Contract, to the Owner's Project Manager or other designated
representative. Thereafter, within two (2) working days after the occurrence of such event, the
Contractor shall submit a written report describing such event in a degree of detail reasonably
acceptable to the Owner.
(2) The Contractor shall immediately respond in accordance with the SPRP in the event of a spill.
(3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas Commission
on Environmental Quality (TCEQ) regulations and any other applicable federal, state, or local
laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those
transporters and disposal facilities that are approved in advance in writing by the Owner. A copy
of all transport manifests for the spilled materials shall be obtained and retained in the
Contractor's records for reference purposes, to be provided upon request of the
Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the
matter. ALL COSTS OF COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED
MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF THE CONTR.ACTOR.
(4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental
discharge or release.
(e) Clean Air Management Plan. The Contractor shall comply with the Clean Air Management Plan
submitted to and approved by the Owner during the contractor selection process. The Owner
reserves the right, at the Contractor's sole expense, to require the removal or retroiitting of any
equipment used in the course of construction that does not comply with the Plan submitted to and
approved by the Owner.
(� The Contractor shall deposit surplus or waste excavation or other materials removed as part of the
Work at a legal disposal site in accordance with all applicable state, federal, and local laws, rules,
regulations, and ordinances. The Contractor shall submit to the Owner for review and approval all
planned disposal sites or proposed uses for the surplus or waste excavation or other materials prior to
removal of any excavation or other material from the Project site. A copy of all transport manifests
for surplus or waste excavation or other materials shall be obtained and retained in the Contractor's
records for reference purposes, to be provided upon request to the Architect/Engineer, the Owner, or
any governmental regulatory agency with jurisdiction over the matter.
(g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ for
construction of the Project under regulations contained in 40 CFR Part 122, as amended, pursuant to
the Clean Water Act, 33 U.S.C.A. §§1251 et seq. These regulations require the filing of a notice of
intent to obtain and abide by the general storm water permit for construction activities promulgated
by EPA, including but not limited to cleaning, grading, and excavation that disturb the applicable
amount of total land area. In addition, the Contractor shall comply with all regulations of the Owner
relating to storm water and storm water runoff management at the Project site pursuant to Chapter
19, Article IX, Denton City Code, as amended.
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(h) The Contractor shall not install any materials in the performance of the Work that contain asbestos
or asbestos-related material such as hydrated mineral silicate, including chrysolite, amosite,
crocidolite, tremolite, anthophylite or actinolite, whether friable or non-friable.
(i) The Owner reserves the right in its sole option to exercise the following remedies (without waiving
the right to pursue the imposition of any civil or criminal fines or penalties that may be imposed
under state, federal, or local laws or ordinances), at no additional cost to the Owner and without an
extension of the Contract Time, in the event the Contractor fails or refuses after seven (7) days
advance written notice from the Owner to comply with the provisions of this Paragraph 10.10, the
terms of the SPRP, the terms of the Clean Air Management Plan, any storm water permit or other
environmental permit issued in connection with the Work, or any applicable environmental law, rule,
regulation, or ordinance:
(1) suspend all or any portion of the Work until the noncompliance is corrected, or until a detailed
plan to achieve compliance within a reasonably prompt period of time is prepared by the
Contractor and approved by the Owner;
(2) if the Contractor fails to properly address the noncompliance within the time stipulated by the
Owner, perform the necessary remediation or correction work and backcharge the Contractor for
the cost of the remediation or correction; or
(3) terminate the Contract for cause as provided in Article 13.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR'S INSURANCE
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
11.2 PROPERTY INSURANCE
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
11.3 `UMBRELLA' LIABILITY INSURANCE
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS
Contractors shall refer to Attachment A for all City of Denton insurance requirements.
11.5 PERFORMANCE AND PAYMENT BONDS
(a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and delivery
of the Construction Services Agreement, furnish and file with the Owner in the amounts required in this
Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which surety bonds shall be in
accordance with the Charter of the City of Denton and the provisions of Chapter 2253, Texas
Government Code, as amended; each bond shall be signed by the Contractor, as Principal, and by an
established bonding company, as surety, meeting the requirements of Subparagraph 11.3(c) and
approved by the Owner. The surety bonds shall be accompanied by an appropriate Power-of-Attorney
clearly establishing the extent and limitations of the authority of each signer to so sign:
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(1) Performance Bond. A good and sufficient bond in an amount equal to $250,000 guaranteeing the
full and faithful execution of the Work and performance of the Contract in accordance with Plans,
Specifications and all other Contract Documents, including any Amendments thereof, for the
protection of the Owner. This bond shall also provide for the repair and maintenance of all defects
due to faulty materials and workmanship that appear within a period of two (2) year from the date of
final completion and acceptance of the improvements by the Owner or lesser or longer periods as
may be otherwise designated in the Contract Documents.
(2) Payment Bond. A good and sufficient bond in an amount equal to$250,000, guaranteeing the full
and prompt payment of all claimants supplying labor or materials in the prosecution of the Work
provided for in the Contract Documents and any Amendments thereto, and for the use and protection
of each claimant.
(b) If the a single project sum, including Owner-accepted alternates and allowances, if any, is greater than
$250,000, Performance and Payment Bonds in 110% of the Contract Sum are mandatory and shall be
provided by the Contractor
(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 performance and payment bonds and evidence of insurance have been furnished as
required by the Contract Documents, and the fully executed contract has been delivered to the
Contractor.
(e) The failure of the Contractor to execute the Contract or deliver the required statutory bonds and
evidence of insurance within ten (10) days after the Contract is awarded or as soon thereafter as the
Owner can assemble and deliver the Contract shall constitute a material breach of the Contractor's bid
proposal and the Owner may rescind the Contract award and collect or retain the proceeds of the bid
security. By reason of the uncertainty of the market prices or materials and labor, and it being
impracticable and difficult to determine accurately the amount of damages occurring to the Owner by
reason of the Contractor's failure to execute and furnish the statutory bonds and to sign the Contract
within ten (10) days, the filing of a bid proposal with the accompanying bid security will be considered
as an acceptance of this Subparagraph 11.3(e). In the event the Owner should re-advertise for bids, the
defaulting Contractor shall not be eligible to bid, and the lowest responsible bid obtained in the re-
advertisement shall be the bid referred to in this Paragraph.
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ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK
12.1 UNCOVERING OF WORK
(a) If a portion of the Work is covered contrary to the Architect/Engineer's request or to requirements
specifically expressed in the Contract Documents, the Work must, if required in writing by the
Architect/Engineer, be uncovered for the Architect/Engineer's observation and be replaced at the
Contractor's expense without change in the Contract Time.
(b) If a portion of the Work has been covered which the Architect/Engineer has not specifically requested
to observe prior to it being covered, the Architect/Engineer may request to see such Work and it shall
be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of
uncovering and replacement shall, by appropriate Change Order, be charged to the Owner. If any
Work is not in accordance with the Contract Documents, the Contractor shall pay the costs of
uncovering, repair, replacement unless the condition was caused by the Owner or a separate contractor
in which event the Owner shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
(a) The Contractor shall promptly correct Work rejected by the Architect/Engineer as failing to conform
to the requirements of the Contract Documents, whether observed before or after Substantial
Completion and whether or not fabricated, installed or completed. The Contractor shall bear costs of
correcting such rejected Work, including additional testing and inspections and compensation for the
Architect/Engineer's services and expenses made necessary thereby.
(b) If any of the Work is found to be defective or nonconforming with the requirements of the Contract
Documents, the Contractor shall correct it promptly after receipt of written notice from the
Architect/Engineer or the Owner to do so unless the Owner has previously given the Contractor a
written acceptance or waiver of the defect or nonconformity. The Contractor's obligation to correct
defective or nonconforming Work remains in effect for:
(1) one year after the date of Substantial Completion of the Work or designated portion of the Work;
(2) one year after the date for commencement of warranties established by agreement in connection
with partial occupancy under Subparagraph 9.8(a); or
(3) the stipulated duration of any applicable special warranty required by the Contract Documents.
(c) The one-year period described in Clauses (b)(1) and (b)(2) shall be extended with respect to portions
of the Work performed, repaired, or corrected after Substantial Completion by the period of time
between Substantial Completion and the actual completion of the Work.
(d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance of the Work
and termination of this Contract. The Owner shall give notice to the Contractor promptly after
discovery of a defective or nonconforming condition in the Work. The one-year period stated in
Clauses (b)(1) and (b)(2) does not limit the ability of the Owner to require the Contractor to correct
latent defects or nonconformities in the Work, which defects or nonconformities could not have been
discovered through reasonable diligence by the Owner or the Architect/Engineer at the time the Work
was performed or at the time of inspection for certification of Substantial Completion or Final
Completion. The one year period also does not relieve the Contractor from liability for any defects or
deficiencies in the Work that may be discovered after the expiration of the one year correction period.
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(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.
(� If the Contractor fails to correct defective or nonconforming Work within a reasonable time after
notice from the Owner or the Architect/Engineer, the Owner may correct it in accordance with
Paragraph 2.4. If the Contractor does not proceed with correction of defective or nonconforming Work
within a reasonable time fixed by written notice from the Architect/Engineer, the Owner may remove
or replace the defective or nonconforming Work and store the salvageable materials or equipment at
the Contractor's expense. If the Contractor does not pay costs of removal and storage within ten days
after written notice, the Owner may, upon ten (10) additional days written notice, sell the materials and
equipment at auction or at private sale and shall account for the proceeds after deducting costs and
damages that should have been borne by the Contractor, including compensation for the
Architect/Engineer's services and expenses made necessary as a result of the sale. If the proceeds of
sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by
the deficiency. If payments due to the Contractor then or thereafter are not sufficient to cover the
deficiency, the Contractor shall pay the difference to the Owner.
(g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the Owner or
separate contractors, whether the construction is completed or partially completed, that is caused by
the Contractor's correction or removal of Work which is not in accordance with the requirements of
the Contract Documents.
(h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with
respect to other obligations which the Contractor might have under the Contract Documents.
Establishment of the one-year time period as described in Subparagraph 12.2(b) relates only to the
specific obligation of the Contractor to correct the Work, and has no relationship to the time within
which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the
time within which proceedings may be commenced to establish the Contractor's liability with respect
to the Contractor's obligations other than specifically to correct the Work.
(i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the provisions of Article
12 to the same extent as Work originally performed or installed.
12.3 ACCEPTANCE OF NONCONFORMING WORK
The Owner may, in the Owner's sole discretion, accept Work which is not in accordance with the
requirements of the Contract Documents instead of requiring its removal and correction, in which case the
Contract Sum will be reduced as appropriate and equitable. The adjustment will be accomplished whether
or not final payment has been made.
ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY SUSPENSION
13.1 FINAL COMPLETION OF CONTRACT
The Contract will be considered completed, except as provided in any warranty or maintenance
stipulations, bond, or by law, when all the Work has been finally completed, the final inspection is made by
the Architect/Engineer, and final acceptance and final payment is made by the Owner.
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13.2 WARRANTY FULFILLMENT
Prior to the expiration of the specified warranty period provided for in the Contract Documents, the
Architect/Engineer will make a detailed inspection of the Work and will advise the Contractor and the
Contractor's Surety of the items that require correction. The Architect/Engineer will make a subsequent
inspection and if the corrections have been properly performed, the Architect/Engineer will issue a letter of
release on the maintenance stipulations to the Contractor and the Surety. If for any reason the Contractor
has not made the required corrections before the expiration of the warranty period, the warranty provisions
as provided for in the Contract Documents shall remain in effect until the corrections have been properly
performed and a letter of release issued.
13.3 TERMINATION BY THE OWNER FOR CAUSE
(a) Notwithstanding any other provision of these General Conditions, the Work or any portion of the
Work may be terminated immediately by the Owner for any good cause after giving seven (7) days
advance written notice and opportunity to cure to the Contractor, including but not limited to the
following causes:
(1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of written
notice by the Owner to commence the Work.
(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
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Owner shall designate, whereupon the surety shall, within fifteen (15) days after the written notice of
termination for cause has been served upon the Contractor and the surety or its authorized agents,
assume the obligations of the Contractor for the Work or that portion of the Work which the Owner
has ordered the Contractor to discontinue and may:
(1) perform the Work with forces employed by the surety;
(2) with the written consent of the Owner, tender a replacement contractor to take over and perform
the Work, in which event the surety shall be responsible for and pay the amount of any costs
required to be incurred for the completion of the Work that are 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 of the balance of the Contract Sum for the completion
and correction of the Work, and for any other costs, damages, expenses (including but not limited to
additional fees of the Architect/Engineer and attorney's fees), and liquidated or actual damages
incurred as a result of the termination.
(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 if the same had been completed by the
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Contractor, then the Contractor and his Sureties shall pay the amount of the excess to the Owner on
notice from the Owner for excess due. When only a particular part of the Work is being carried on by
the Owner by contract or otherwise under the provisions of this Subparagraph, the Contractor shall
continue the remainder of the Work in conformity with the terms of the Contract, and in such manner
as not to hinder or interfere with the performance of workmen employed and provided by the Owner.
(e) The right to terminate this Contract for the convenience of the Owner (including but not limited to
nonappropriation of funding) is expressly retained by the Owner. In the event of termination for
convenience, the Owner shall deliver at least ten (10) days advance written notice of termination for
convenience to the Contractor. Upon the Contractor's receipt of such written notice, the Contractor
shall cease the performance of the Work and shall take reasonable and appropriate action to secure
and protect the Work in place. The Contractor shall then be reimbursed by the Owner in accordance
with the terms and provisions of the Contract Documents, not to exceed actual labor costs incurred,
materials stored at the Project site or away from the Project site as approved by the Owner but not yet
paid for, plus actual, reasonable, and documented termination charges, if any, paid by the Contractor
in connection with the Work in place which is completed and in conformance with the Contract
Documents to the date of termination for convenience. No amount shall ever be due to the Contractor
for lost or anticipated profits.
13.4 TEMPORARY SUSPENSION OF THE WORK
(a) The Work or any portion of the Work may be temporarily suspended by the Owner immediately upon
written notice to the Contractor for any reason, including but not limited to:
(1) the causes described in Clauses 13.1(a)(1) through (a)(10) above;
(2) where other provisions in the Contract Documents require or permit temporary suspension of the
Work;
(3) situations where the Work is threatened by, contributes to, or causes an immediate threat to public
health, safety, or security; or
(4) other unforeseen conditions or circumstances.
(b) The Contractor shall immediately resume the temporarily suspended Work when ordered in writing
by the Owner to do so. The Owner shall not under any circumstances be liable for any claim of the
Contractor arising from a temporary suspension due to a 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
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(3) if it becomes necessary to move equipment from the Project site and then return it to the Project
site when the Work is ordered to be resumed, an equitable adjustment to the Contract Sum for
the actual, necessary, and reasonable cost of these moves; provided, however, that no adjustment
shall be due if the equipment is moved to another Project site of the Owner.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS
(a) This Contract shall be governed by the laws and case decisions of the State of Texas, without regard
to conflict of law or choice of law principles of Texas or of any other state.
(b) This Contract is entered into subject to and controlled by the Charter and ordinances of the City of
Denton and all applicable laws, rules, and regulations of the State of Texas and the Government of
the United States of America. The Contractor shall, during the performance of the Work, comply with
all applicable City codes and ordinances, as amended, and all applicable State and Federal laws, rules
and regulations, as amended.
14.2 SUCCESSORS AND ASSIGNS
The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal
representatives to the promises, covenants, terms, conditions, and obligations contained in the Contract
Documents. The Contractor shall not assign, transfer, or convey its interest or rights in the Contract, in part
or as a whole, without written consent of the Owner. If the Contractor attempts to make an assignment,
transfer, or conveyance without the Owner's written consent, the Contractor shall nevertheless remain
legally responsible for all obligations under the Contract Documents. The Owner shall not assign any
portion of the Contract Sum due or to become due under this Contract without the written consent of the
Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract
Documents, or other operation of law.
14.3 WRITTEN NOTICE
Except as otherwise provided in Article 16, any notice, payment, statement, or demand required or
permitted to be given under this Contract by either party to the other may be effected by personal delivery
in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an
officer, partner, or other designated representative of either party. Mailed notices shall be addressed to the
parties at an address designated by each party, but each party may change its address by written notice in
accordance with this section. Mailed notices shall be deemed communicated as of three (3) days after
mailing.
14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER
(a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and
remedies available to the Owner under the Contract Documents shall be in addition to, and not a limitation
of, any duties, obligations, rights, and remedies otherwise imposed or made available by law.
(b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under
the Contract Documents, nor shall any action or failure to act by the Owner constitute approval of or
acquiescence in a breach of the Contract by Contractor, except as may be speciiically agreed in writing by
Change Order or Supplemental Agreement.
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14.5 INTEREST
The Owner shall not be liable for interest on any progress or final payment to be made under the Contract
Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter
2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions.
14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN
ANY CONTRACT OF THE OWNER
No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with
the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land,
materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of
this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall
thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied,
of the person, persons, partnership, company, firm, association or corporation contracting with the Owner
shall render the Contract involved voidable by the Owner's City Manager or City Council.
14.7 VENUE
This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to
enforce this Contract, exclusive venue shall lie in Denton County, Texas.
14.8 INDEPENDENT CONTRACTOR
In performing the Work under this Contract, the relationship between the Owner and the Contractor is that
of an independent contractor. The Contractor shall exercise independent judgment in performing the Work
and is solely responsible for setting working hours, scheduling or prioritizing the Work flow and
determining the means and methods of performing the Work, subject only to the requirements of the
Contract Documents. No term or provision of this Contract shall be construed as making the Contractor an
agent, servant, or employee of the Owner, or making the Contractor or any of the Contractor's employees,
agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's compensation,
which the Owner provides to its employees.
14.9 NONDISCRIMINATION
As a condition of this Contract, the Contractor covenants that he will take all necessary actions to insure
that, in connection with any work under this Contract, the Contractor and its Subcontractors will not
discriminate in the treatment or employment of any individual or groups of individuals on the grounds of
race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly,
indirectly or through contractual or other arrangements. The Contractor shall also comply with all
applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213, as amended.
In this regard, the Contractor shall keep, retain and safeguard all records relating to his Contract or Work
performed thereunder for a minimum period of three (3) years from final Contract completion, with full
access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating
compliance with this and other provisions of the Contract.
14.10 GIFTS TO PUBLIC SERVANTS
(a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred, or
agreed to confer any benefit on a City of Denton employee or official that the City of Denton
employee or official is prohibited by law from accepting.
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EXHIBIT E
PERFORMANCE BOND
STATE OF TEXAS
COUNTY OF DENTON § �
Bond No. 4392194
KNOW ALL MEN BY THESE PRESENTS: That F�a`a �,�,N ��tt�l,�� ("��d���'�t��di�:�;" i�'1�c�ti� address is _PO Box
1781, Denton,�TX 76202 hereinafter called Principal, and SureTec Insurance �C.;`c�i�°r���rr�;;°"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 frmly bound unto the City of Denton, a municipal corporation organized and existing
under the law of the Sta of Texas, hereinafter called Owner, in the penal sum of Two Hundred fifty thousand
DOLLARS"�250 00 , in lawful money of the United S�tates, 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 �;���c:IwN��r��� Number 2013-255 , with the City of Denton, the Owner, dated the 17
day of September A.D. �„�„1�:�','°�� copy of wh�p�,l� is hereto attached and made a part hereof, for RFP # 5241
� ��i��,��t�,�d�c,����i;r° �zr���3 iri����l�r�lm�����...���.v�s��s� �„
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 modifcations of said Contract that may hereafter
be made, notice of which modifications to the Surety being hereby waived; and, if the Principal shall repair and/or
replace all defects due to faulty materials and workmanship that appear within a period of two (2) years from the
date of final completion and final acceptance of the Work by the Owner; and, if the Principal shall fully indemnify
and save harmless the Owner from all costs and damages which Owner may suffer by reason of failure to so
perform herein and shall fully reimburse and repay Owner all outlay and expense which the Owner may incur in
making good any default or defciency, then this obligation shall be void; otherwise, it shall remain in full force
and effect.
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PROVIDED FURTHER, that if any legal action be filed upon this Bond, exclusive venue shall lie in
Denton County, State of Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that
no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed
thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its
obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or
addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications,
Drawings, etc.
This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as
amended, and any other applicable statutes of the State of Texas.
The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in
Denton County to whom any requisite notices may be delivered and on whom service of process may be had in
matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated
Civil Statutes of the State of Texas.
IN WITNESS WHEREOF, this iN��;t���is�t�r��,,,�� executed in four copies, each one of which shall be deemed
an original, this the 17 day of September, '���i 1�,��"'`��
AT'I
I�
ATTEST:
�. +,� I � , , 4
� � � � �„� �^�' �
BY: __ �.. W .._ �°,�....�� .:. 4 ,.nnm,......_
�
PRINCIPAL
1� ��a�ci ar���i�� �°��rF��b l��c�.
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BY: �� � � � �,..a� �� � �� � ,
PRESIDENT
SURETY
�
�g��°�,�Q"��;...l�s������.c;.rwt���wa�r�.
� �„,� 1
�
BY. ,���'� �� ��`� �,�� � �,���' ��,��
(Angela :�;cnt ` ���c} .�..1i''T� '�J�sY-IN-FACT
The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process is:
NAME: Agents Alliance Services, Ltd.
STREET ADDRESS: 510 N. I-35 E. Denton, TX 76205
(NOTE: Date of Performance Bond must be date of Contract. If Resident Agent is not a corporation, give
a person's name.)
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��,��'`��nm�G����� ��
��d� ���'„'�s���
PoA �r, 4221565
SureTec Insurance Company
LIMITED POWER OF ATTORNEY
gnow All Men by These Presents, That SURETEC INSURANCE COMPANY ���a� "Company"), a corporation duly organized and
existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents
make, constitute and appoint
Jeffrey P. King, Becky McKnight, James E. King, Angela Kendrick„""`'�. C�reg Sidwell, Erin Atkins
its true and lawful Attorney-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute, aclrnowledge
and deliver any and all bonds, reco�izances, undertakings or other instruments or contracts of suretyship to include waivers to the
conditions of contracts and consents of surety for: p�r
One Million Five Hundred Thousand Dollars and no/100 ($1,500,000.00) �a�
and to bind the Company thereby as fully and to the same extent as if such bond were signed by the President, sealed with the corporate
sea] of the Company and duly attested by its Secretary, hereby rarifying and confirming all that the said Attorney-in-Fact may do in the
premises. Said appomtment shall continue in force until �2i3? _„ _____ and is made under and by authority of the following
. . . /2015„
resolutions of the Board of D'uectors of the SureTec Insurance Company:
Be it Resolved, that the President, any Vice-President, any Assistant Vice-President, any Secretary or any Assistant Secretary shall be and is
hereby vested with full power and authority to appoint any one or more suitable persons as Attomey(s)-in-Fact to represent and act for and on
behalf of the Company subject to the following provisions:
Attorney-rn-Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, aclrnowledge and
deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and al]
notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such
Attomey-in-Fact sha�l be bmding upon the Company as if signed by the President and sealed and effected by the Corporate Secretary.
Be iC �ca���d��a�, i�tc^�� 'G�'ru �A�;��at'�a'c�; �rf` �ra� s�a�9�r�rori�cr� r��"���s;�^ �ra�9 seal of the Company heretofore or hereafter affixed to any power of attomey or
any �,�w�a�p������; ��;���,r��� ��y�;n����� �� ���,����x�p�„ �b'a�� �a�y ��„w'r��:r ���'�attomey or certificate bearing facsimile signature or facsimile seal shal] be valid
and l�pabr�a�p� r�g�ca�ro C�� �"a��zr��+,or:ay wvG�� a`c�w�ai;�6 lc� ��rs� k��.ar�� �a�' uzndertaldng to which it is attached. (Adopted at a meeting held on 20�' of April,
1999.)
In Witness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its President, and its coiporate seal
to be hereto affixed this 21 st day of Mazch, A.D. 2013
, �� ���M,� SURETEC �i'��1���,�N�°� COMPANY
� �y�anr���;� � �,.�-� ��
� � ���
� � � � ,, � �� BY � �� •�.,.�g � __..��_��......, ,,..,
t
��� Jnhn }�, �s Jr, �resident
State of Texas ss; �� �., � ��.:' °��
County af Harris " M." �+"
���,�ke����>,�nr�����
On this 21st day of March, A.D. 2013 before me personally came John Knox Jr., to me known, who, being by me duly swom, did depose and say, that he
resides in Houston, Texas, that he is President of SURETEC INSURANCE COMPANY, the company described in and which executed the above
instrument; that he lrnows the seal of said Company; that the seal �xed to said instrument is such corporate seal; that it was so affixed by order of the
Boazd of Directors of said Compaziy; and that he signed his name thereto by like order.
, � M,w� � JACOUELYN MALDONADO �
r����� , Notary Public
'�'�� Stale o1 Texas
� rea y� My Comm. Exp. 511812017 '
� �m���� .
� �/ '�,��'�...
......._... � �mm..._.._ ._.....�..m_. —._.,
� ��w�;�� �:#�'n Maldonado, Notary Public
My commission expires May 18, 2017
I, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy
of a Power of Attomey, executed by said Company, which is still in full force and effect; and furthermore, the resolutions of the Board of Directors, set
out m the Power of Attorne are m full force and effect.
%� � . �
• I ` y of ' U ' ' "��� � �,,,.m., � � � � "�"�_ro A.D.
Y �
Given under my hand and the seal of said Company at Houston, Texas this da �_u��"�� ', .
��� �,,��
_ �� "� �.� ..�--
. Sr�� t Beaty, Assistant e s�N°�ttaz�
Any Instrument issued in excess of the penalty stated above is totally void and wlthout any valldity.
For verlflcatlon of the authority of this power you may call (713) 812-0800 any business day between 8:00 am and 5:00 pm CS7.
,� �yuq;�
A���
EXHIBIT E
PAYMENT BOND
STATE OF TEXAS
COUNTY OF DENTON
Bond No. 4392194
KNOW ALL MEN BY THESE PRESENTS: That Flovd Smith Concrete, Inc.'!whose add ss is
PO Box 1781, Denton, TX 76202, hereinafter called Principal, and SureTec Insurance Compan , 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, and
unto all persons, firms, and corporations who may furnish materials for, or perform labor upon, the
building or i�����r��°v� ������k;� ��r�,r��ir����'t��° referred to, in the penal sum of Two Hundred Fifty Thousand
DO�C�L,���,�.�� "�����t����� �°i��� 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 Ordinaryce Number 2013-255, with the City of Denton, the Owner,
dated the 17 day of September A.D.2013 �a copy of whi�h is hereto attached and made a part hereof, for
RFP 5241 Concrete Re�air and Installation Services. �
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties and make
prompt payment to all persons, firms, subcontractors, corporations and claimants supplying labor and/or
material in the prosecution of the Work provided for in said Contract and any and all duly authorized
modifications of said Contract that may hereafter be made, notice of which modifications to the Surety
being hereby expressly waived, then this obligation shall be void; otherwise it shall remain in full force
and effect.
PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive venue shall lie in
Denton County, Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and
agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work
to be performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall
in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed
thereunder, or to the Plans, Specifications, Drawings, etc.
RFP 5241
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 four copies, each one of which shall be
deemed an original, this the 17 day of September, 2013.
ATTEST:
r� �� �
BY: . "� � .��
w � . ,�. � � .. . �...
�F.0 I� �T�T�."� �. �
ATTEST:
"�,� � �� � ���� �'
BY:. �,�r. � .�"�"..�� �� �,�� ........
PRINCIPAL
I l�a„��.1 �a���J�:�lt � �����rc:�t w [���,. �
;
—
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�,� �
.
BY; "� ,� ,� ,�,�
w �..._ ��� �
� ]'�tl��:I.C�1a�l�'
SURETY:
'����r�, P c�c� l�� i¢�m�+��;,� ��r t�a��i�°� �� ��"�
� ��
BY: ' ,�m �i�` � ���� � ;;,�f''� ,�%� ,�u,
�����,�N� M���� �� ��i��%'� A"�" Oi��ri.�"4��-IN-FACT
The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the
process is:
NAME: A�ents Alliance Services, Ltd.
STREET ADDRESS: 510 N. I-35 E. Denton. TX 76205
(NOTE: Date of Payment Bond must be date of Contract. If Resident Agent is not a corporation, give a
person's name.)
RFP 5241
PoA ��, 4221565
SureTec Insurance Company
LIMIT�D POWER p�' ,��"T"���T'.��"
gnow Al! Men by These Presents, That SURETEC INSURANCE CO�!'wt�a�a�"���'�9�� "'`����a��z��,�"), a corporation duly organized and
existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents
make, constitute and appoint
Jeffrey P. King, Becky McKnight, James E. King, Angela Kendric�°;�,�. Greg Sidwell, Erin Atkins
its �ue and lawful Attomey-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute, aclmowledge
and deliver any and all bonds, reco�izances, undertakings or other instruments or contracts of suretyship to include waivers to the
conditions of contracts and consents of surety for:
One Million Five Hundred Thousand Dollars and no/100 ($1,500,000.00) N�,�"�r�'A„�
and to bind the Company thereby as fully and to the same extent as if such bond were signed by the President, sealed with the corporate
seal of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said Attorney-in-Fact may do in the
premises. Said appointment shall continue in force until �zisu2o�s___ and is made under and by au.thority of the following
resolutions of the .Board of Directors of the SureTec Insurance Company:
Be i� Resolved, that the President, any Vice-President, any Assistant Vice-President, any Secretary or any Assistant Secretary shall be and is
hereby vested with full power and authority to appoint any one or more suitable persons as Attorney(s)-in-Fact to represent and act for and on
behalf of the Company subject to the following provisions:
Attorney-in-Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, aclrnowledge and
deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all
notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such
,�t�aaro��:y-mrw-�'s�ct �C7��.� ta� ��ia�dsn� up�a�ra ���. ��wrzx�r�z�y �� d�"�u��t�.� 4�'p tlroa �"r���c9�Mc�t ��dd sealed and effected by the Corporate Secretary.
,F3� �1'i 1���w�K.rl���c�, ���R��a &�s��� �i�;�watkr���'� �d� n��►"�,y �u�C9satc�r,��� �"iiia���a" �iti�r� sr�'a'al ��� �8'ua.� i�aa��m��xa� heretofore or hereafter affixed to any power of attorney or
�say �„�,r�j�"t���an y�l�ta.�a�„ �1a�t•��ca 9,ay i��si���ll�.a ��zc� �sa� �crrva�a^ a�tr����ta,�aanc�� �a� �;�x-9t�i����: bearing facsimile signature or facsimile seal shall be valid
��a�2��1 i�a���i����„����a�air �I��� �.a�da��°a��aan,y �a���i'� �����a�:w� �� ���y ����'�� �� �����'����w�&'��'� "�''�a�";� Mt is attached. (Adopted at a meeting held on 20�' ofApril,
1999.) •
In Witness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be si�ed by its President, and its corporate seal
to be hereto affixed this 21 st day of March, A.D. 2013
���,� � � ��q��µ�
SURETEC INSURANCE COMPANY
���r � � �..
"��"�W �" "� ,�`��� By� John �� Jr� 'reside.�.___..�....�._�.,�.
�
��� � ��� �
nt
State of Texas ss; �� ., � •' ^�,�
County of Harris ��, ".......,,,,,�,• �"�
�nupu���vrrv,w'd'""��
On this 21st day of March, A.D. 2013 before me personally came John Knox Jr., to me known, who, being by me duly swom, did depose and say, that he
resides in Houston, Texas, that he is President of SURETEC INSURANCE COMPANY, the company described in and which executed the above
instrument; that he lrnows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the
Board of D'uectors of said Company; and that he signed his name thereto by like order,.
�„�� n� JACOUELYN MALDONADO '
Notary Public
Stete otTexas
�"'�"y� My Comm. Ex 5118I2017
��.'�'�"^"� P•
���
�„� �r"�/ ^ ��
�Jacr� �t^'�„y�� Maldonado, Notary Public �
My commission expires May 18, 2017
I, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a trve and correct copy
of a Power of Attorney, executed by said Company, which is still in ful] force and effect; and furthermore, the resolutions of the Board of Directors, set
out in the Power of Attomey aze in full force and effect.
I � �
Given under my hand and the sea] of said Company at Houston, Texas this ���_„_„__„ day of .� ���,����m��y,�m �,�,,� �� �" .� �'��m A.D.
�; � V ��
,� � � �
�.... ....— ��� � _�� ^W �.. .... � ..,...��..___
, �rc�a��; Beaty, Assistant w°"����CaM�ry
Any instrument issued in excess of the penalty stated above Is totally vofd and without any valldity.
For verlflcatlon of the authority of this power you may call (713) 812-0800 any business day between 8:00 am and 5:00 pm CST,
���
u
��
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��,a'�����'
� DATE (MMIDD/YYYY)
�"'�'�"� � CERTIFICATE OF LIABILITY INSURANCE g/2�/2013
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
..PRODUCER ...�;C?�'"GA�'� �a��I;1'1: .�... NledCl
NAduY�: "�
Agents Alliance Services, Ltd ������ , (940)382-9691 ��� �� �9ao>Za3-ioso
Ramey King Insurance ���� �. �����r�.m��a��� r�r�a�g���r�,g, com
'rJ 1 O N. I35 E INSURER�S) AFFORDING COVERAGE �� NAIC #
�NSl1RE�? Q�, •PAQTZ ...�,,. _. .. ___�__ .. ..�,
Denton TX 76205 suran�e �'�18333
ess Indemnit�v In
iNSUReo �NSUReR e DeAOSitors Insurance Com�anv 42587
Floyd Smith Concrete, Inc„�,w�
"`� �i�� � ��� iNSUReRCNetherlands ��4171
� � � � � ....... . . ... � . ______ _ �
P.O. Box 1781 �'�
ry� ............,,,,,,....�....�.. � ___-
� � �NSURer� q •
W� � ����� INSl1RER, E_ ,
� , .,,,�,,,,,,, . ,,,,,,,.. ...,.,,,,,,,.�... ,,,,,,,,,,,,, ,,,,,,,,��.... _.
Denton TX %62�2-1%81 INSl1RERF�
__.._.., ..
COVERAGES CERTIFICATE NUMBER:CL1392513516 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCWSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR �,,,,........m,,,.. ., ........ ..... .. ... ..�1�V�7�. �'�k.,�,�,,,, I���,9i."'^,� �K� is�Yi.R�`!"��Ip, . ............................� .,.............,.,.,�.
L7R ' TYPE OF tN� .b'�,MSCE�. iticR wvn POLICY NUMBER �.Mp}�EdEMI�lYYY4" iutlh9d'�1��+1!'Y'YV��� �LIMITS
� GENERAL LIABILITY """� EACH OCCURRENCE S 1, OOO , OOO �^"� ���
., �MAU� �l`7 F2ENTED � ���
X�.COMMERCIALGENERALLIABILITY , „��� ��k3F,MI4Fql, a.orr rwnrwl $ ZOO OOO
���.. P+ � CLAIMS-MADE � OCCUR ��� BP40499i�p �� 9/28/2013 .9/28/2014 � MED EXP (Any one person) $ 15 000
___ ....... ......................... .a,..eeeeeeee� ,,..m.m...,
PERSONAL & ADV INJURY $ 1� OOO � OOO
_ .....................................eeeeeeeeeeeee..., .,�,� �, ,,,,,,,,, ,
GENERAL AGGREGATE $ 2� OOO � OOO �«^^°°�
�' �' ��.�,"�Ii LIMIT �M# h�LIC���PER � PRODUCTS -COMP/OP AGG $ 2� OOO � OOO
��'.�1"l ���f�"��'�
. . _w... .,..., ........�.,.�...
tl M�C�, $
����� NN'�bI.1C:"Y' d.M'�G°�'J
AUTOMOBILE ILN�kE�Ik�FTY`°� �� Meirv Sirv �� �u�nrr $ 1, 000 . 000 ^°„`��
�ALLOWNED � SCHEDULED �CPBAPD7215769495 �/28/2013 9/28/2014 ��p ��
n) 8
B. X ANY AUTO �� � � ,��""� f�1DILY INJURY (Per perso .
_,,,,,„ AUTOS . ,,, AUTOS
'` BO ILY INJURY (Per accident) $
�„_.m, . e .. .. ...,...
NON-OWNED FF2(7NEFCI�Y� CYAMHG� $
HIRED AUTOS _ ,,,, AUTOS �P ^ ��
__��. .,...:.: � ..�_ � ��,. ...,,,,
. Exoerience Mod Factor � $
UMBRELLA LIAB OCCUR EACH OCCURRENCE $
,..,..m..... .�m.........a ....______.._.._.. .,�..,.m..,.,,�...........�.� ..............
EXCESS LIAB CLAIMS-MADE' AGGREGATE $
., ,. ., „�. .. m. .., _...,. mmmmmm.m _ � ..,...
f1Ff1 RFTFNTIQt� A $
(J WORKERS COMPENSATION, �' Y/ N X Tnav i in�� ��-
AND EMPLOYERS' LIABILIN � � �� , ,�� ��A,niTC . a
.,�
OFFICER/MEIMBER/EXCLUDED7 ECUTIVE N � A {��°'� s II- L EACH ACCIDENT $ 1 QQO 000 '�
C4049965 ^�" �/28/2013 9/28/2014 � �^
(Mandetory In NH) E.L. DISEASE - EA EMPLOYEF $ 1, 000 , 000
Ifyes, desoribe under __.....�. ..a.a. ___...�.,.� ___—,,,...�� �„ym,�
D_ESCRIPTIQN OF OPERATION$ below E.L. DISEASE - POLICY LIMIT $ 1. OOO ; OOO
...... ..�.,m,..,m„ .. — ------- ,..... ..� _ ......... ......�
A Equipment Floater sP4049968 J�28/2013 9/28/2014 RentedlLeased Equipment Limit $100 � �0�'
Deductible $ 5 � � ''����...
DESCRIPTION OF OPERATIONS / LOCATIONS I VEPId�0.E;3 �N��ay�h ���1RD 107, Addltlonal Remarks Schedule, If more space Is requlred)
The insured's general liaba,]..��,�* ,�b�.a„��r includes forms 22-132 (04/11) and 22-133 (O1/08) - Blanket
Additional Insured Contract�a��s�e'`'�lac� insured's auto liability policy includes form AC O1 02TX 03 10- i
Blanket Additional Insured.4°"'��xt� �ta�t�r�ad's general liability policy includes form 22-126 (O1/08) - Waiver i
of ��,�nsfer of Rights of Recovery Against Others To Us - qPhen Required in a Contract or Agreement with
You,�•s�'��"he insured's commercial auto policy iaeludes form AC O1 OlA 03 10 - Blanket Waiver of Subrogation`„�°"�'�����
The insured's wo���rs compensation policy includes form WC 42 03 04A - Blanket Waiver as required by
written contract':""���ease refer to the forms attached with the certificate of insurance for reference.
(940)349-7302
City of Denton �•m'����
901 B Texas Street
Denton, TX 76201
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
,to�°'°��� ` ���� ���
Jeff Ring/RT.M
ACORD 25 (2010/05) O 1988-2010 ACORD CORPORATION. All rights reserved.
INS025 ��n�nnFi n� Thn A( A{7�1 n�mc �nrl Innn ��c �cnic4ornri ma�4c nf Af'(11�1'1
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US - WHEN REQUIRED IN A
CONTRACT OR AGREEMENT WITH YOU
This endorsemer�t modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV — COMMERCIAL
GENERAL LIABILITY CONDITIONS) is amended by the addition of the following:
We waive any right of recovery we may have against a person or organ¢ation because of payments +n� make for injury or damage
arising out of your ongoing operations or "your work" done under a cor�tract with that person or organization and included in the
"products-completed operations hazard" provided:
1. You and that person or organization have agreed in writing in a contract or agreement that you waive such rights against that person
or organization; and
2. The injury or damage occurs subsequent to the execution of the written contract or agreement.
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
22-126 (01/08) Page 1 of 1
'� 1 � �. � � . � •
Pollcy Number: WC 4049965
Coverage Is Provided In THE NETHERLANDS INSURANCE C�MPANY-A STOCK COMPANY
Named Insured: Agent:
FLOYD SIIIIITH CONCRETE INC AGENTS ALLIANCE SERVICES LTD
Agent Code: 4286962 Agent Phone: (940)-382-9691
TEXAS WAIVER OF OUR RIGHT TO REC�VER FROM OTHERS
ENDORSEMENT
This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of the
Information Page.
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not
enforce our right against the person or organization named in the Schedule, but this waiver applies only with
respect to bodily injury arisin0 out of the oper2tions described in the Schedule where you are required by a written
contract to obtain this waiver from us.
This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule.
The premium for this endorsement is shown in the Schedule.
Schedule
1. ( ) Specific Waiver
Name of person or organization
(� Alankat Waivwr
Any person or organization for whom the Named Insured has agreed by written contract to furnish this
waiver.
2. Operations:
PAVING CONTRACTOR
WC 42 03 04A (01100)
INSURED COPY
09f28/2013 4049965 NTCODMMF309 PGDMO60D J17123 AG3FPPN 00000131 Page 33
THIS ENDORSEMENT CHANGES THE PQLICY. PLEASE READ IT CAREFULLY,
ADDITIQNAL INSURED - OWNERS, LESSEES aR
GONTRACTORS - AUTOMATIC STATUS WHEN REQUIRED IN
CONSTRUCTION AGREEMENT WITH YOU
This endorsement modiFies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. Paragraph 2. under Section II — Who Is An Insured is amended to include as an insured any person pr
organization whom you have agreed to add as an additional insured in a written cantract or written
agreement. Such person or organizatian is an additional insured but only with respect to liability for "bodily
injur�', "property damage" or °personal and advertising injur�' caused, in whole or in part, by:
1. Your aCtS or 4missions or the acts or omissions of those acting on your behalf in the performance of your
ongoing operations for the additional insured that are the subject of the written contract or written
agreement provided that the "bodily injury" or "property damage" occurs, or the "personal and advertising
injur�' is committed, subsequent to the signing of such written contract or written agreement.
A person's or organization's status as an additional insured under this endorsement ends when:
a. All work, including materials, parts or equipment furnished in connection with such work, on the
project (other than service, maintenance or repairs) to be pertormed by or on behalf of the additional
insured(s} at the location of the co�ered operations has been completed; or
b. That portion of "your work" out of which the injury or damage arises has been put to its intended use
by any person or organization other than another contractor or subcontractor engaged in performing
operations for a principal as a part of the same project.
The insurance pravided by this endorsement applies only if the written contract or written agreement is
signed prior to the "bodily injur}�' or "property damage".
We have no duty ta defend an additional insured under this endorsement until we recei�e written notice of
a"suit" by the additional insured as required in Paragraph b. of Condition 2. Duties In the Everrt Of
Occurrence, Oiiense, Glairn Qr Suit under Section IV — Commercial General Liability Conditions.
B. With respect to the insurance provided by this endorsement, the following are added to Paragraph 2.
Exclusions under Section I— Coverage A— Bodily Injury And Property Damage Liability:
This insurance does not apply to:
1. "Bodily injury" or "property damage" arising from the sole negligence of the additional insured.
2. �Bodily injury" or �property damage" that occurs priqr to you commencing operatiflns at the location where
such °bodily injury" or "property damage" occurs.
3. "Bodily InJury", "property damage" or "personal and ad�ertlsing inJury" arising out of the rendering of, or
the failure to render, any professional architectural, engineering or surveying services, including:
a. The preparing, appraving, or failing to prepare or approve, maps, shop drawings, opinions, reports,
sur�eys, field orders, change orders or drawings and specifications; or
b. Supervisory, inspection, architectural or engineering activities.
4. �Bodily injur�' or "property damage" occurring after:
a. All work, including materials, pa�ts or equipment furnished in connection with such work, on the
project (other than service, maintenance or repairs) to be performed by or on behalf of the additional
insured(s) at the location of the covered operations has been completed; or
b. That portion of "your work" out of which the injury or damage arises has been put to its intended use
by any person ar organization othsr than another contractor or subcontractar engaged in performing
operations for a principal as a part of the same project,
5. Any person or organization specifically designated as an additional insured for ongaing operations by a
separate Additional Insured — Owners, Lessees Or Contractors endorsement issued by us and made a
part of this palicy.
� 2011 Liber[y Mutual Insurance Company. All rights reserved.
Includes copyrighted material oi Insurance 5ervices Oiiice Inc., with its permission.
22-132 {04111) Page 1 of 2
INSURED COPY
09128/2011 d049968 NN170307 2809 PGDM080D J27b97 AC3FPPN OOOOD041 Pa9e 41
C. The limits of insurance applicable to the additional insured are those specified in a written contract or written
agreement or the limits of insurance as stated in the Declarations oF this palicy and defined in Section III —
Limits Of Insurance of this policy, whichever are less. Tnese limits are inclusive of and not in addition to the
limits of Insurance available under this policy.
D. With respect to the coverage afforded by this endorsement, Section IV — Commercial General Liability
Gonditions is amended as follows:
1. The follawing is added to Paragraph 2. Duties In The Event Of Occurrence, Claim Or Suit:
An additional insured under this endorsement will as saon as practicable:
a. Gi�e written notice of an �occurrence" or an offense, that may result in a claim or "suit" under this
insurance ta us;
b. Tender defanse and indemnity of any claim or °suiY' to all insurers whom also ha�e insurance
available to the additional insured; and
c. Agree to make available any other insurance which the additional insure�l has for a loss we cover
under this Coverage Part.
d. We have no duty to defend or indemnify an additional insured under this endorsement until we
receive written notice of a"suiY' by the additional insured.
2. Condition 4. Other Insurance of Section IV — Commerci�l General Liability Conditions is amended as
fol lows:
s. The following is added to Paragraph a. Primary Insurence:
If an additional insured's policy has an Other Insurance provision making its policy excess, and you
have agreed in a written contract ar written agreement to provide the additional insured coverage on
a primary and noncontribut�ry basis, this policy shall be primary and we will not seek contribution
from the additional insured's policy for damages we co�er.
b. The follawing is added to Paragraph b. Excess Insurance:
When a written contract or written agreement, other than a premises lease, facilities rental cantract or
agreement, an equiprnent rental or lease contract or agreement, or permit issued by a state or
political subdivision between yau and an additional insured does not require this insurance to be
primary or primary and non-contributory, this insurance is excess over any other insurance for which
the additional insured is designated as a Named Insured.
Regardless of the written agreement between you and an additional insured, this insurance is excess
o�er any other insurance whether primary, excess, contingent ar on any other basis for which the
additional insured has been added as an additional insured on other policies.
(� 2011 Liberty Mutual Insurance Company. All righis reservad.
Includes copyrighted material 01 Insurance Services 011ice Inc., with i1s permission.
22-132 {04/11)
INSURED G�PY
09/28l2011 4049968 NN170307 2809 PGDM080D J27597
Page 2 of 2
AC3FPPN OD000042 Pa9e 42
COMMERCIAL AUTO
AC 01 01 A 0310
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESS AUTO ADVANTAGE ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
A. NEWLY ACQUIRED OR FORMED ENTITIES
The Named Insured shown in the Declarations
is amended to include any organization you
newly acquire or form, other than a partnership,
joint verrture, or limited liability company, and
over which you maintain ownership or majority
(more than 50%) interest; if there is no other
similar insurance available to that organization,
Covera�e under this provision is afforded until
the 180h day after you acquire or form the or-
ganization or the end of the policy period, whi-
chever is later.
B. TEMPORARY SUBSTITUTE AUTOS —
PHYSICAL DAMAGE COVERAGE
The following is added to paragraph C. Certain
Trailers, Mobile Equipmerit And Temporary
Substitute Autos of the — COVERED AUTOS
SECTION:
If Physical Damage Coverage is provided by
this Coverage Form, the following types of
vehicles are also covered "autos" for Physi-
cal Damage Coverage:
Any "auto" you do not own while used with
the permission of its owner as a temporary
substitute for a covered "auto" you own that
is out of service because of its:
a. Breakdown;
b. Repair;
c. Servicing;
d. "Loss' ; or
e. Destruction
The coverage that applies is the same as
the coverage provided for the vehicle being
replaced.
C. EMPLOYEES AS INSUREDS — NONOWNED
AUTOS
d. Any "employee" of yours is an "insured"
while using a covered "auto" you don't
own, hire or borrow in your business or
your personal affairs.
D. SUPPLEMENTARY PAYMENTS — BAIL
BONDS
Paragraph A.2.a. (2) of the LIABILITY
COVERAGE SECTION is revised as follows:
(2) Up to $2,500 for cost of bail bonds (in-
cluding bonds for related traffic law vi-
olations) required because of an "acci-
dent" we cover. We do not have to
furnish these bonds.
E. SUPPLEMENTARY PAYMENTS — LOSS OF
EARNINGS
Paragraph A.2.a.(4) of the LIABILITY
COVERAGE SECTION is revised as follows:
(4) All reasonable expenses incurred by the "in-
sured" at our request, including actual loss
of earnings up to $500 a day because of
time off from work.
F. FELLOW EMPLOYEE — OFFICERS,
MANAGERS, AND SUPERVISORS
Paragraph B.S.A. Fellow Employee in the
LIABILITY COVERAGE SECTION is replaced
as follows;
A. "Bodily injury" to any fellow "employee" of
the "insured" arising out of and in the course
of the fellow "employee's" employment or
while performing duties related to the con-
duct of your business. This exclusion does
not apply to an "insured" who occupies a
position as an officer, manager, or supervi-
so r.
G. PERSONAL EFFECTS AND PROPERTY OF
OTHERS EXTENSION
The following is added to paragraph A.1. Who Is 1. Paragraph B.6. Care, Custody or Control oF
An Insured of the LIABILITY COVERAGE the LIABILITY COVERAGE SECTION, does
SECTION: not apply to "property damage" to property,
other than your property, up to an amount
AC 01 01A 0310 Includes copyrighted material of Insurance Services Office, Inc. Page 1 of 3
with its permission
AC 01 01A 0310
not exceeding $25Q in any one "accidenY'.
Coverage is excess over arry other valid and
collectible insurance.
2. The following paragraph is added to A.4.
Coverage Extensions of the — PHYSICAL
DAMAGE COVERAGE SECTI�N:
c. We will pay up to $500 for your property
that is lost or damaged as a result of a
covered "loss", without applying a de-
ductible. Coverage is excess over any
other valid and collectible insurance.
H. HIRED AUTO PHYSICAL DAMAGE
If covered "auto" designation symbols 1,8,61 or
68 apply to Liability Coverage and if at least one
"auto" you own is covered by this policy for
Comprehensive, Specified Causes of Loss, or
Collision coverages, then the Physical Damage
coverages provided are extended to "autos" you
lease, hire, rent or borrow without a driver; and
provisions in the Business Auto Coverage Form
applicable to Hired Auto Physical Damage ap-
ply. The deductible will be equal to the largest
deductible applicable to arry owned "auto" for
that coverage. Any Comprehensive deductible
does not apply to fire or lightning.
EXPANDED TOWING C�VERAGE
We will pay up to:
1. $10D for a covered "auto" you own of the
private passenger rype, or
2. $250 for a covered "auto" you own that is
not of the private passenger type,
for towing and labor costs incurred each time
the covered "auto" is disabled. However, the la-
bor must be performed at the place oF disable-
ment.
This coverage applies only for an "auto" covered
on this policy for Comprehensive or Specified
Causes of Loss Coverage and Collision Cove-
rages.
J. AUTO LOAN OR LEASE COVERAGE
1. In the event of a total "loss" to a covered
"auto", we will pay arry unpaid amount due
on the loan or lease, including up to a max-
imum of $500 for early termination fees or
penalties, for your covered "auto" less:
a. The amount paid under the - PHYSICAL
DAMAGE COVERAGE SECTION of this
policy; and
b. Arry:
1) Overdue lease/loan payments at the
time of the "loss";
2) Financial penalties imposed under a
lease for excessive use, abnormal
wear and tear or high mileage;
3} Security deposits not refunded by a
lessor;
4} Costs of extended warranties, Cre-
dit Life insurance, Health, Accider�t,
or Disabiliry insurance purchased
with the lease; and
5) Carry-over balances from previous
leases.
2. This coverage only applies to a"loss" which
is also covered under this policy for Com-
prehensive, Specified Causes of Loss, or
Collision coverage.
3. Coverage does not apply to any unpaid
amount due on a loan for which the covered
"auto" is not the sole collateral.
K. RENTAL REIMBURSEMENT COVERAGE
1. This coverage applies only to a covered "au-
to" for which Physical Damage Coverage is
provided on this policy.
2. We will pay for rental reimbursement ex-
penses incurred by you for the rental of an
"auto" because of "loss" to a covered "auto".
Payment applies in addition to the otherwise
applicable amount of each coverage you
have on a covered "auto." No deductibles
apply to this coverage.
3. We will pay only for those expenses in-
curred during the policy period beginning 24
hours after the "loss" and ending, regardless
of the policy's expiration, with the lesser of
the following number of days:
a. The number of days reasonably re-
quired to repair or replace the covered
"auto". If "loss" is caused by theft, this
number of days is added to the number
of days it takes to locate the covered
"auto" and return it to you.
b. The number of days shown in the Sche-
dule.
4. Our payment is limited to the lesser of the
following amounts:
1. Necessary and actual expenses in-
curred.
2. $75 for any one day or for a maximum
of 30 days.
5. This coverage does not apply while there
are spare or reserve "autos" available to you
for your operations.
Page 2 of 3 Includes copyrighted material of Insurance Services OfFce, Inc AC 01 01A 0310
with its permission.
6. If "loss" results from the total theft of a cov-
ered "auto" of the private passenger type,
we will pay under this coverage only that
amount of your rental reimbursement ex-
penses which is not already provided for
under the PHYSICAL DAMAGE
COVERAGE Coverage Extension.
7. Coverag� does not apply to any covered
"auto" for which coverage is provided by en-
dorsement form CA9923 on this policy.
L. EXPANDED TRANSPORTATION EXPENSE
Paragraph A.4.a. of the PHYSICAL DAMAGE
COVERAGE SECTION is replaced by the fol-
lowing:
We will pay up to $50 per day to a maximum of
$1000 for temporary transportation expense in-
curred by you because of the total theft of a
covered "auto" of the private passenger type.
We will only pay for those covered "autos" for
which you carry Comprehensive or Specified
Causes of Loss Coverage. We will pay for tem-
porary transportation expenses incurred during
the period beginning 48 hours after the theft and
ending, regardless of the policy's expiration,
when the covered "auto" is returned to us or we
pay for its "loss".
M. EXTRA EXPENSE — STOLEN AUTOS
The following paragraph is added to Section
A.4, of the — PHYSICAL DAMAGE COVERAGE
SECTION:
c. We will pay for up to $5,000 for the expense
of returning a stolen covered "auto" to you.
We will pay only for those covered "autos"
for which you carry Comprehensive or Spe-
cified Causes of Loss Coverage
N. NEW VEHICLE REPLACEMENT COST
The following is added to paragraph C Limit of
Insurance of the PHYSICAL DAMAGE
COVERAGE SECTION:
AC 01 01 A 0310
5. The provisions of paragraphs 1.and 3. do
not apply to a covered "auto" of the private
passenger type or a vehicle with a gross ve-
hicle weight of 20,000 pounds or less which
is a new vehicle
In the event of a total "loss" to your new ve-
hicle to which this coverage applies, we will
pay at your option:
a. The verifiable new vehicle purchase
price you paid for your damaged ve-
hicle, not including any insurance or
warranties purchased;
b. If it is available, the purchase price, as
negotiated by us, of a new vehicle of the
same make, model, and equipment or
the most similar model available, not in-
cluding any furnishings, parts, or equip-
ment not installed by the manufacturer
or manufacturers' dealership; or .
c. The market value of your damaged ve-
hicle, not including any furnishings,
parts, or equipmerit not installed by the
manufacturer or manufacturer's dealer-
ship.
We will not pay for initiation or set up costs
associated with loans or leases
In this endorsement, a new �ehicle means
an "auto" of which you are the original owner
that has not been previously titled and which
you purchased less than 365 days before
the date of the "loss".
O. BLANKET WAIVER OF SUBROC3ATION
The following is added to paragraph 5. Transfer
of Rights Of Recovery Against �thers To Us of
— BUSINESS AUTO and MOTOR CARRIER
CONDITIONS SECTIONS:
We waive any right of recovery we may have
against any person or organization to the extent
required of you by a written contract executed
prior to any "accident" because of payments we
make for damages under this coverage form.
All terms and conditions of this policy apply unless modified bythis endorsement.
AC 01 01A 0310 Includes copyrighted material of Insurance Services Office, Inc., Page 3 of 3
with its permission
COMMERCIAL AUTO
AC 01 02TX 0310
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESS AUTO EXTENSION END�RSEMENT
TEXAS
This endorsement modifies insurance provided under the following:
BUSINESS AUT� COVERAGE FORM
M�TOR CARRIER COVERAGE FORM
A. CHANGES FOR TRAILERS AND FARM
EQUIPMENT
1. Under the COVERED AUTOS SECTION,
the following are added to Paragraph C.
Certain Trailers, Mobile Equipment and
Temporary Substitute Autos:
4'Trailers" designed to be towed by a private
passenger type "auto" or a pickup, panel
truck or van if not used for business purpos-
es, other than farming or ranching.
5. Farm wagons or farm implements while be-
ing towed by a covered "auto".
B. CHANGES FOR ADDITIONAL NEINLY
ACQUIRED VEHICLES
2. Paragraph B.2 of the COVERED AUTOS
SECTION is replaced by the following:
2. If Symbol(s) 7 or 67 is entered next to a
coverage in Item Two of the Declara-
tions, an "auto" you acquire will be a
covered "auto" for that coverage only if:
a. We already cover at least one "auto"
you own for that coverage or it rep-
laces an "auto" you previously
owned that had that coverage; and
b. You tell us within 30 days after you
acquire it that you want us to cover
it for that coverage.
The most we will pay for Physical Damage
Coverage for "loss" under this Coverage Ex-
tension is $100,000 per "auto", subject to
the largest deductible applicable to any "au-
to" for that Coverage.
C. BLANKET ADDITIONAL INSURED
Any person or organization which you have
agreed to name as an additional insured in a
written coritract, executed prior to an acci-
dent, other than a contract for the lease or
rer�al of a vehicle is an "insured" for Liability
Coverage, but only to the extent that person
or organization qualifies as an "insured" un-
der the Who Is An Insured Provision con-
tained in the LIABILITY COVERAGE
SECTION of the Coverage Form
D. REPLACED EXCLUSIONS
The Expected or Intended Injury Exclusion
in the LIABILITY COVERAGE SECTION is
replaced by the following:
Expected or Intended Injury
"Bodily injury" or "property damage" which is
expected or intended by the "insured". This
exclusion applies even if the resulting "bodi-
ly injury" or "property damage":
a. is of a different kind, quality or degree
an initially expected or intended; or
b. is sustained by a different person, entity,
real property, or personal property than
that initially expected or intended.
E. ADDITIONAL EXCLUSIONS
The following exclusions are added to the
LIABILITY COVERAGE SECTION:
Damage to Named Insured's Property
AC 01 02TX 03 10 Includes copyrighted material of Insurance Services Office, Inc., Page 1 of 4
with its permisslon.
Arry claim or "suit" for "property damage" by a. Resulting from the providing or the fail-
you or on your behalf against any other per- ure to provide any medical or other pro-
son or eritity that is also a Named Insured fessional services.
under this policy. b. Resulting from food or drink furnished
Abuse or Molestation with these services.
"Bodily injury" or "property damage" arising
out of:
a. The actual or threatened abuse or
molestation by anyone or any person
while in the care, custody or control of
any "insured", or
b. The negligent:
1) Employment;
2) Irnrestigation;
3) Supervision;
4) Reporting to the proper authorities,
or failure to so report; or
5) Retention;
of a person for whom any "insured" is or
ever was legally responsible and whose
conduct would be excluded by Para-
graph a. above.
Abuse means an act which is committed
with the intent to cause harm.
Explosives
"Bodily injury" or "property damage" caused
by the explosion of explosives you make,
sell or transport.
Rolling Stores
If a covered "auto" is a rolling store, "bodily
injury" or "property damage" resulting from
the handling, use or condition of any item
the "insured" makes, sells or distributes if
the injury or damage occurs after the "in-
sured" has given up possession of the item.
Wrong Deli�ery of Liquid Products
"Bodily injury" or "properly damage" result-
ing from the delivery of arry liquid into the
wrong receptacle or to the wrong address,
or from the delivery of one liquid for another,
if the "bodily injur}r' or "property damage"
occurs after the delivery has been com-
pleted.
Delivery is considered completed even if fur-
ther service or maintenance work, or correc-
tion, repair or replacement is required be-
cause of wrong delivery.
Professional Services
"Bodily injury":
"Bodily injury" or "property damage" result-
ing from the handling of corpses.
F. MOTOR HOME CONTENTS COVERAGE
1. For a covered "auto" that is a motor home
the following exclusions are added to the
PHYSICAL DAMAGE COVERAGE
SECTION:
Motor Home Contents
This insurance does not apply to:
a. "Loss" to the covered "auto's" cor�tents,
except equipment usual to trucks or pri-
vate passenger "autos".
b. "Loss" to TV antennas, awnings or ca-
banas.
c. "Loss" to equipment designed to create
added living facilities.
However, these exclusions do not apply if
Miscellaneous Personal Property Goverage
is provided by endorsement to this policy.
G. ACCIDENTAL AIRBAG DISCHARGE
COVERAGE
Under Paragraph B.3.a. of the PHYSICAL
DAMAGE COVERAGE SECTI�N, the following
is added:
Mechanical breakdown does not include the ac-
cidental discharge of an airbag.
H. PHYSICAL DAMAGE LIMIT OF INSURANCE
Under PHYSICAL DAMAGE COVERAGE
SECTION, Paragraph C, Limit of Insurance is
replaced by the following:
C. Limit Of Insurance
1. The most we will pay for "loss" in
any one "acciden�' is the lesser of:
a. The actual cash value of the
damaged or stolen property as
of the time of the "loss"; or
b. The cost of repairing or replac-
ing the damaged or stolen
property.
2. 51,000 is the most we will pay for
"loss" in any one "accidenY' to all elec-
tronic equipment that reproduces, rece-
ives or transmits audio, visual or data
signals which, at the time of "loss", is:
Page 2 of 4 Includes copyrighted material of Insurance Services Office, Inc , AC 01 20TX 03 10
with its permission.
a. Permanently installed in or upon the
covered "auto" in a housing, opening or
other location that is not normally used
by the "auto" manufacturer for the instal-
lation of such equipment.
b. Removable from a permanently installed
housing unit as described in Paragraph
2.a above or is an ir�egral part of that
equipment; or
c. An integral part of such equipment.
3. The cost of repairing or replacing may be
based on an estimate which includes parts
furnished by the original equipment manu-
facturer or other sources including non-
original equipment manufacturers.
4. If we offer to pay the actual cash value of
the damaged or stolen property, we will val-
ue auto advertising wraps, paint customiza-
tion, and similar business related advertising
modifications, in addition to the actual cash
value of the property. Auto advertising
wraps, paint customization, and similar
business related advertising modifications
will be valued at the cost to replace them
with an adjustment made for depreciation
and physical condition.
N, GLASS REPAIR —WAIVER OF DEDUCTIBLE
Under Paragraph D. Deductible of the
PHYSICAL DAMAGE COVERAGE SECTION,
the following is added:
No deductible applies to glass damage if the
glass is repaired rather than replaced.
J. AMENDED DUTIES IN EVENT OF ACCIDENT,
CLAIM, SUIT, OR LOSS
The requirement in Loss Condition 2.a. Duties In
The Even Of Accident, Claim, Suit �r Loss — of
the BUSINESS AUT� C�NDITIONS SECTI�N
and the M�T�R CARRIER CONDITIONS
SECTION that you must notify us of an "acci-
denY', "claim", "suit", or "loss" applies only when
the "accident", "claim", "suit", or "loss" is known
to
1. You, if you are an individual
2. A partner, if you are a partnership;
3. An executive officer or the employee desig- M'
nated by you to give such notice if you are a
corporation; or
4. A member, if you are a limited liability com-
pany.
K. UNINTENTIONAL FAILURE TO DISCLOSE
HAZARDS
The BUSINESS AUT� CONDITIONS SECTIaN
and MOTOR CARRIER CONDITIONS
SECTION- 6.2. is amended by the addition oF
the following:
If you unintentionally fail to disclose any hazards
existing at the inception date of your policy, we
will not deny coverage under this Coverage
Form because of such failure. Howe�er, this
provision does not affect our right to collect addi-
tional premium or exercise our right of cancella-
tion or nonrenewal.
L. AUTOS HIRED OR RENTED BY EMPLOYEES
If hired or rented "autos" are covered "autos" on
this policy, the following provisions apply:
A. Changes In Liability Coverage
The following is added to the Who Is An In-
sured Provision in the LIABILITY
COVERAGE SECTION:
An "employee" of yours is an "insured" while
operating an "auto" hired or rented under a
contract or agreement in that "employee's"
name, with your permission, while pertorming
duties related to the conduct of your busi-
ness.
B. Changes In General Conditions
Paragraph 5.b. of the Other Insurance
Condition in the Business Auto Coverage
Form and Paragraph 5.f. of the Other In-
surance Condition in the Motor Carrier
Coverage Form is replaced by the following:
For Hired Auto Physical Damage Coverage,
the following are deemed to be covered "au-
tos" you own:
1. Any covered "auto" you lease, hire, rent
or borrow; and
2. Any covered "auto" hired or rented by your
"employee" under a contract in that individ-
ual "employee's" name, with your permis-
sion, while performing duties related to the
conduct of your business.
Howe�er, any "auto" that is leased, hired,
rented or borrowed with a driver is not a cov-
ered "auto".
EMERGENCY LOCKOUT — PRNATE
PASSENGER VEHICLES
We will reimburse you up to $50 for reasonable
expense incurred for the services of a locksmith
to gain entry into your covered "auto" of the pri-
vate passenger type subject to these provisions:
AC 01 02TX 03 10 Includes copyrighted material of Insurance Services Office, Inc., Page 3 of 4
with its permission.
1. Your door key or key er�try pad has been
lost, stolen or locked in your covered "auto"
and you are unable to enter such "auto", or
2. Your key or key er�try pad has been lost or
stolen and you have changed the lock to
preverrt an unauthorized entry; and
3. Original copies of receipts for services of a
locksmith must be provided before reim-
bursement is payable.
N. LIBERALIZATION
Paragraph 3.of the General Conditions is re-
placed by the following:
If we adopt arry revision that would broaden the
coverage under this policy without additional
premium within 60 days prior to or during the
policy period, the broadened coverage will im-
mediately apply to this policy.
All terms and conditions of thls policy apply unless modified bythis endorsement.
Page 4 of 4 Includes copyrighted material of Insurance Services Office, Inc., AC 01 02TX 0310
with its permission.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED CONTRACTORS— PRODUCTS/COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. Paragraph 2. under SECTION II — WHO IS AN INSURED is amended to include any person or organization,
when you and such person or organization have agreed in writing in a contract or agreement that such person
or organization be added as an additional insured on your policy, but only with respect to liability for "bodily
injury" or "property damage":
1. Caused by "your work' performed for that additional insured that is the subject of the written contract or
agreement; and
2. Included in the "products-completed operations hazard"„
The insurance provided by this endorsement applies only if the written contract or agreement is executed prior
to the "bodily injury" or "property damage".
We have no duty to defend an additional insured under this endorsement until we receive written notice of a
claim or "suit" as required in provision b. of Condition 2. Duties In the Event Of Occurrence, Offense, Claim
Or Suit under SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS.
B. With respect to the insurance provided by this endorsement, the following are added to paragraph 2. Exclusions
under COVERAGE A BODILY INJURY AND PROPERIY DAMAGE LIABILITY (SECTION I— COVERAGES):
This insurance does not apply to:
1. "Bodily injury" or "property damage" arising out of any act or omission of the additional insured or the
additional insured's employees; or
2. "Bodily injury" or "property damage" that occurs prior to you commencing operations at the location where
such "bodily injury" or "property damage" occurs.
3. "Bodily injury" or "property damage" arising out of the rendering of, or the failure to render, any professional
architectural, engineering or surveying services including:
a. The preparing, approving or failure to prepare or approve, maps, shop drawings, opinions, reports,
surveys, field orders, change orders or drawing and specifications; and
b. Supervisory, inspection, architectural or engineering activities; or
C. With respect to the insurance afforded by this endorsement, exclusion 1. Damage To Your Work of paragraph
2. Exclusions under COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY (SECTION I—
COVERA(iES) is replaced by the following:
I. Damage To Your Work
"Property damage" to "your work" arising out of it or any part of it and incl uded in the "products-
completed operations hazard".
D. With respect to the insurance afforded by this endorsemerit, the following is added to SECTION III — LIMITS OF
INSURANCE:
In cludes copyrighted material of Insurance Services Office, Inc., with its pertnission,
22-133 (Ol/08) Page 1 of 2
The Limits OF Insurance applicable to the additional insured are the lesser of:
1. The amount specified in a written contract or written agreement between you and the person or
organization described in paragraph A. abo�e; or
2. The amount shown in the Declarations far this Coverage Part.
These Limits of Insurance are inclusive of, and not in addition to, the Limits of Insurance shown in the
Declaratians for this Coverage Part as described in this SECTION III — LIMITS OF INSURANCE.
E. With respect to the insurance afforded by this endorsement, SECTION IV — COMMERCIAL GENERAL
LIABILITY CONDITIONS is amended as follows:
1. The following is added to condition 2. Duties in The E�ent Of Occurrence, Offense, Claims Or Suit:
An additional insured under the 9�q�r�G��� ����n���n�ll a����°�� ����m���r����r� ���u��3�������a�������
���������� endorsement must comply with all the provisions of this condition.
2. With respect to the insurance afforded by this endorsement, provision b. Excess Insurance of condition 4.
Other Insurance is replaced by the following:
4. Other Insurance
b. Excess Insurance
This insurance is excess over any other insurance for which the additional insured qualifies as
an insured whether primary, excess, contingent or on any other basis unless the written
contract or written agreement between you and the person of organization described above
specifically requires that this insurance be provided on either a primary basis or a primary and
noncontributory basis.
Includes copyrighted material of Insurence Seivices Office, Inc., with its pertnission.
22-133 (Ol/08) Page 2 of 2
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� ���� �� '�'� �"��� " "" _ � � ��"�� �z���a��� Portland cement produr.ed by vendors who:
(1) are In� com.pliance with a(1 applioable state and #'edernl enviraiimental standards relating to the
emission of NOx, ineIuding aII a�aplicabie TCEQ and EPA rules an.d reguIatipns; snd
(2) opexaee l�ilns with �,�;�n�;s�������y g;���� �����g �� ��andaxds foz NUx emissiona set out in 30 Tex.
Admin. Cadn � 1�?„�1 �{)��,��'��p(�� (�� ����y�,�,��d pl�esently and as nnay be amertrled in ths
ft�Cure) by tkte �olla�+mr.a� ��a�c;������� �n���.xa���,
(a) for each lon�e� k�Iz�,10 percenC lo`���° �l�r��� t�a�r �t��r��rrx far long wet lcilns 1oc�ted in
Ellis County, Texas as set nuC in 30 'I"��. �,����c��, �.�r�c� �lY'i.310(a)(1)(�) fAs of 3-9-
Il, tvet kiln NOx er�tssion.s ean NOT exc���,�', �,��rr���;� �,�,� ,���^�ltnker produeerl.J;
(b) for a�ch 1���,c��p 1cil�g, 20 pe2�cent 1����;�� ����zt �,��� �¢;�rr�c��r� �i�� ��r�� d��q kilns located in
��lia County, Texas, As s�t o�.�t in 3�?'i`�:��a�. ;�;����,��,, �'��,� ��,.17,�"�.lA(a)(2} (As of3»9-
X X, dry ki4ra NOx ernfsstons cart 1V'OT exc�m�i ��,i�r,s,�r�� d'�a��, ,��" ��'��rl"�er �r��ocf�ced.);
�G) �"�a� a���lx �r��� � x ��i���� ��t ���°���t ��w��;� i�a� t�� �t�a�zel��� fi�x �aa,�����ater Icilna Iocated
�r� ����� ���i����„ �:��c;��;�, �� ��t r����� zm:� ;��! "'�`��c4 �.ai��ai��� �M'��� ��.'�'�,��.���a)(3) �As of3-9-
��; �rr�ix��at���,����,� 1V�x ��r�r,�,�e��r�� r��rc �f.�X" e���r��.�".� �;��r�r,�r��z ��'�:1�'�rPr�a•prorCuced.J; and
(d) tc�t� r���c.�a ����+��� w�a�����r"���� c��µ z�°��,�f��t�c• ���ma� 3� ���rc;c��i:� l�ro���' �&�,���, �`��
�i��a��.���r�°�i f�� par�h�;�i����������lc�itz�a �a��c� ��r��:�a��3���z l�Cn� �c�c�ttc� �x �'p�li,� G�Wc�a.AS���, `1'�xr��,�
��� ��ic�u! �a� �(D'�"t��� �����itz, ��c�� �� 5:7.�1�,�������) �r'�,�,�„�"�;.�.��i, ��r�J��rr��sr�-;��z��:c°rc�'��"r�er
o� preaalciner lc�dn omtsstons sart 1VOT a,�c:r��c$ a�„� ��i,s ���r �ezrt �� ctira�e���r�r�^�c�tt���8,�,
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�'"� ?°� NtX� COMMISSION �hF'{R&S �� � � ,,� � �°� �
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