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2014-386ORDINANCE NO. 2014-386 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT THROUGH THE INTERLOCAL PURCHASING SYSTEM (TIPS) PROGRAM CONTRACT #2042414 FOR THE REPLACEMENT OF THE EMILY FOWLER LIBRARY ROOF; AND PROVIDING AN EFFECTIVE DATE (FILE 5689-AWARDED TO CBS ROOFING SERVICES IN THE AMOLJNT OF $399,740). WHEREAS, pursuant to Ordinance 2011-082, The Interlocal Purchasing System Program (TIPS) has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through The Interlocal Purchasing System Program at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items shown in the "File Number" referenced herein and on file in office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 5689 CBS Roofing Services $399,740 �I;("�° t 1( )��C 2�. By the acceptance and approval of the items set forth in the referenced file number, the City accepts the offer of the persons submitting the bids to The Interlocal Purchasing System Program for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with The Interlocal Purchasing System Program and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by The Interlocal Purchasing System Program, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to The Interlocal Purchasing System Program, and related documents herein approved and accepted. 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 File 5689 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the items set forth in the referenced iile number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders or pursuant to a written contract made pursuant thereto as authorized herein SECTION 6. This ordinance shall become effective immediately upon its passage and approval. �� da of �� , ��_, 2014. PASSED AND APPROVED this � �� y ,��,� ��J � � �� d �� ` ` � � , , . �� .. .��:1�� WATTS, �v��.YOR ATTEST: JENNIFER WALTERS, CITY SECRETARY Y�� ry �y� W � � BY: � ,� '"�� °�� .�� .�� ..._�.� _..��_� .�. .,�,.� M�. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: � � �' w�� """�'� r"�� CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND CBS ROOFING SERVICES (File #5689) THIS CONTRACT is made and entered into this 18th day of November 2014, by and between CBS Roofing Services, A Division of CBS Mechanical, Inc., a Texas corporation, whose address is 5001 West University Drive, Denton, Texas 76207, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home- Rule City, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and the subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide construction services in accordance with the City's File #5689, a copy of which is on iile at the office of Purchasing Agent and incorporated herein for all purposes as "Exhibit B". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) City of Denton's File # 5689 — Interlocal Purchasing System (TIPS) Program Contract #2042414 for Roof Replacement for Emily Fowler Library (Exhibit "B") (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Payment and Performance Bonds (Exhibit "D"); (e) Insurance Requirements (Exhibit "E"); (� Form CIQ — Conflict of Interest Questionnaire (Exhibit "F"); (g) 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." IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day frst above written. "CONTRACTOR" CBS ��.�� Services � �� ,� , �. By �n°��" � �UTH+(:��1� SIGNATURE TYPED NAME; Steve Rress TITLE:: Dice President (940) 387-7568 PHONE NUMBER skress@cbsmechanical.com E-MAIL ADDRESS � ��,��. � �� ^ � � �� BY ....... : . � ��. CITY OF DENTON, TEXAS p � ti��. �m �� , � � exas umci a a��r � i �� *�„,� �° ��;, �.� �� A� ��" �� C.��"^��'[:% �� w � ��.�� ,,, � x � �� .�.�d. � m._ CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY : .� �P'� �'1�^,L� �:��1'"(7� LEGAL FORM: ,��1 �"�� BURGESS, CITY ATTORNEY ,� � µ .. � � � ,�� BY' . - �""-� � � -�. „�� EXHIBIT A SPECIAL TERMS AND CONDITIONS Total Contract Amount The contact total for services shall not. exceed $399,740. Pricing shall be per Exhibit G attached. Contract Term The contract shall commence upon the issuance of a Notice to Proceed. Contractor shall begin work on site within ffteen (15) calendar days of receipt of Notice to Proceed. Project shall be complete within 75 calendar days after work commences on site. Delays are further discussed in the Standard Terms and Conditions Exhibit C, Section 8.3. Special Notice and Additional Requirement(s): 1. Additional safety precautions shall be instituted by the awarded contractor, as the work environment will be in an area where citizens and employees may be present, and work safety must be coordinated with the owner. 2. The Contractor shall be responsible for all spoil removals, and any excess soil that will require removal, if applicable. The removed equipment and materials shall be disposed under the City's direction. 3. It is understood that the basis for payment on the work to be done according to the final plans and speciiications shall be a lump sum fee as set forth in Contractor's Proposal. Any quantity estimates supplied by Designer or Owner are intended only as a guide to the respondent. Respondent is responsible for making his own quantity estimates and pricing from his own examination of the work to be done. City of Denton Duties and Responsibilities: 4. City staff shall notify the Contractor regarding the arrangement for the removal and proper disposal of the existing structures along with other site improvements. 5. The City shall be responsible for the payment of all necessary permits obtained by the Contractor prior to the commencement of the work. 6. City staff shall maintain the Contractor's valid insurance certificate in the Office of the Purchasing Agent. CONTRACT ADMINISTRATION SUBMITTALS and REQUIREMENTS A. General: the General Conditions, Supplementary Conditions and Special Conditions provide definite times for Contractor to submit certain lists, qualifications, price breakdowns and schedules for administrative procedures including but not necessarily limited to the following: B. List of Subcontractors: before the execution of the Contract, the respondent awarded the contract will submit to the Owner for approval a list of all Subcontractors, and/or his major Subcontractors, proposed to use. This list will include each Subcontractor's correct name, mailing address and phone number. C. Contractor's Superintendent: The Contractor shall submit the name and qualiiications of the person designated as Project Superintendent within ten (10) days of the receipt of the Notice of Award Letter. D. Schedule of Values: upon execution of the Contract, the Contractor shall submit to the Owner for approval a breakdown of the Contract price, itemizing material and labor for various classifications of work. 1. The Owner will provide forms entitled "DETAILED ESTIMATE" for the Contractor to use to prepare the breakdown. The Owner will also provide an example for the Contractor to generally follow to prepare the breakdown. 2. Unit Price items will be multiplied by the estimated quantities to give the item totals. The total item will then be divided into "material" and "labor" and listed on the breakdown. The breakdown of unit price items into material and labor is required so the Owner may make progress payments on materials delivered before the labor is performed. E. Work Progress Schedule (if applicable): Within three (3) weeks after receipt of a Work Order, the Contractor shall submit in duplicate to the Owner for approval an estimated progress schedule for the work in relation to the entire project. The Owner will provide forms entitled "PROPOSED SCHEDULE" for the Contractor to use to prepare his progress schedule. The form is a bar chart with time across the top and work item down the side. The Contractor will fll out this form listing the work items and show the beginning and ending dates for each item. The Owner will provide an example for the Contractor to generally follow to prepare the progress schedule. F. Estimated Pavment Schedule (if applicable): Prior to starting work, the Contractor shall submit to the Owner an estimate of his monthly payment requests. This shall be reviewed each month during the construction period and revised estimates furnished if signi�cant changes are indicated. G. Testin� and Quality Control: Observation of the Contractor's work to determine compliance with the plans and speciiications will include testing of material installed on the project as well as inspection of construction as dictated by the International Building Code and as required in the contract documents. A Testing Laboratory, contracted by the Owner, shall do testing of materials furnished and work performed. The Contractor shall use only materials in the work, which meet the requirements of the specifications. When requested, the Contractor shall furnish a complete written statement of the origin, composition, and/or manufacturer of any or all materials that are to be used in the work. All materials not conforming to the requirements of the specifcations will be rejected. THIS OUALITY CONTROL SERVICE DOES NOT RELIEVE THE �. . . w,... ,.�. � ,�, .. _ __�.... __F��'��aiRiT,TTV WiTN RF(iARn TO fONTR A(''T(1R [)F NT� R,__ mW __ __ CONSTRUCTING THE WORK IN ACCORDANCE WITH THE CONTRACT. Contractor shall submit appropriate tests including, but not limited to: 1) Any test required in the technical specifications 2) Any structural element called for on the plans, including, but not limited to dam construction, concrete asphalt roads or paths, shelters, bridges or other structure tests, pressure test of irrigation. 3) Test to prove adequacy of design and construction of any feature that may have been accepted by Owner under contractor's "Alternate Proposal". 4) Any test that may be occasioned by any local, state, or federal law. H. As-Built DrawinQS: The contractor shall maintain a complete set of Contract Drawings in his possession, upon which he is required to note in red, or other clear manner, all deviations, final dimensions and explanatory notes arising out of actual work installed or performed in the iield, and showing exact locations of such work, including trades. Notes on these drawings shall indicate installed locations and dimensioned clearances. Contractor to furnish an as- built drawn from an aerial photo identifying course, irrigation (including all components, buried or otherwise), major and minor drainage lines and related structures, all underground utilities, location of buried trees and debris, limits of topsoil, extra borrow areas, and other signiiicant construction which could reasonably be foreseen to affect future operation. All as-built(s) shall be supplied in CAD format. I. Proiect Manuals: Contractor shall supply Owner a project manual for operations of all mechanical systems to be included under this contract in a manner satisfactory to the Architect, his sub-consultants and Owner's representatives. J. Schedule of Tests. Submittals: A schedule of anticipated tests and submittals begins on the next page. Additional submittals may be required. INSURANCE — All insurance requirements are detailed in Attachment A- City of Denton Insurance Requirements. MEETINGS A. Pre-Construction Conference: Prior to start of work, a conference between the owner and Contractor will be held to discuss provisions of the contract documents, explain administrative procedures and coordinate the work effort. Time of pre- construction conference will be stated in the Work Order letter for the Contractor. Attendance by Contractor and Contractor's Superintendents is mandatory. 1. Owner will schedule meeting and provide meeting place. 2. Attendance: The following are expected to attend: • Owner's Representative. • Consultant's Construction Administrator. • Representatives from Sub-Consultants • Contractor's General Superintendent, Project • Superintendent and Project Coordinator • Representatives of major subcontractors 3. Agenda Items: � List of major Subcontractors and Suppliers + Tentative construction schedule � Critical work sequencing � Major equipment deliveries � Designation of responsible personnel + Procedures and processing of field decisions, proposal requests, submittals color coordination, change orders, and applications for payment. � Adequacy of distribution of Contract Documents. . Procedures for maintaining Record Documents � Use of Premises: office, work, storage, staging areas; Owner's requirements � Construction facilities, controls and construction aids � Temporary utilities � Safety and iirst aid procedures �w Security procedures � Housekeeping procedures � Other business 4. The Owner's Representative will preside over the meeting. B. Pro�ressMeetin�s: Construction progress meetings shall be weekly. 1. The General Contractor, Owner, and Architect shall agree on a weekly meeting day and time. 2. Provide a convenient, comfortable meeting place. 3. Contractor's Project Superintendent or Project Manager shall preside over meeting. 4. Attendance: The following are expected to attend: • Owner's Representative • Consultant's Construction Administrator • Sub-consultant's unless notified otherwise • Contractor's General Superintendent, Project • Superintendent and Project Coordinator, • Subcontractors having work in progress • Subcontractors whose work will start within the next month • Others as requested by Owner, A/E, or Contractor 5. Agenda • Review, approval of minutes or previous meeting • Review of work progress since previous meeting • Field observation, problems, conflicts • Problems which impede construction schedule • Review of off-site fabrication, and delivery schedules • Corrective measures and procedures to regain projected schedule. • Revisions to construction schedules • Progress schedules for succeeding period • Schedule coordination • Review proposed changes for effect on construction schedule, on completion date, and effect on other contracts of project • Maintenance of quality standards • Pending changes and substitutions • Other business C. Minutes of Meetin�s: Contractor shall take notes at pre- construction and progress meetings and distribute them to those concerned in the form of minutes within four (4) calendar days after meeting. SURVEYS, MEASUREMENTS AND LAYOUTS (If required) A. General: The Owner will provide property surveys. The Contractor shall be responsible for all control point staking as required. The Contractor's responsibility for verifying conditions is defined in the Standard General Conditions. B. Surveys,MeasurementsandLayoutOutofWork: The Contractor will establish from survey information on drawings all lines, grades, and levels and will be responsible for maintenance and accuracy thereo£ The Contractor shall provide all surveys required by the permitting process. EXHIBIT C Invoices, Payments, and Releases 1. INVOICES AND PAYMENT PROCESSING: Pavment processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as speciiied. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for pavments: Contractors are encouraged to arrange for receiving payments through direct deposit. Information regarding direct deposit payments is available from the City of Denton Purchasing website: www.dentonpurchasin .�am. Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Deparirnent, 215 E McKinney St, Denton, TX, 76201-4299 with a copy to the attention of Dean Hartley, City of Denton Facilities Management, 869 Woodrow Lane, Denton, TX 76209. The copy may also be emailed to Mr. Hartley at dena.hartley@cityofdenton.com. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Invoices for partial payments on construction projects should normally be presented for payxnent within the iirst five days of the month, and submitted on the Pay Application Form. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ruling #95-0.07 and #95-0.09. 3. PAYMENTS TO CONTRACTORS: A. Upon presentation of valid invoices, which should be within the iirst week of each month, the Owner shall make partial payments to the Contractor for construction accomplished during the preceding calendar month on the basis of completed construction certified to by the Contractor and approved by the Owner and Architect/Engineer solely for the purposes of payment: Provided, however, that such approval shall not be deemed approval of the workmanship or materials. Only ninety- five percent (95%) of each payment request approved during the construction of the project shall be paid by the Owner to the Contractor prior to completion of the project. Upon the approval by the Owner of the Contractor's "Final Invoice for Payment" showing the total cost of the construction performed, the Owner shall make payment to the Contractor of all amounts to which the Contractor shall be entitled there under which shall not have been paid: Provided, however, that such imal payment shall be made not later than ninety (90) days after the date of completion of construction of the project, as speciiied in the Final Invoice for Payment, unless withheld because of the fault of the Contractor. B. The Contractor shall be paid on the basis of the percentage of the work actually completed for each construction item. The total amount paid for periodic billings shall not exceed the maximum contract price for the construction of the project as set forth in the contract, unless such excess shall have been approved in writing by the Purchasing Agent as part of a change order. C. No payment shall be due while the Contractor is in default in respect of any of the provisions of this contract, and the Owner may withhold from the Contractor the amount of any claim by any third party against either the Contractor or the Owner based upon an alleged failure of the Contractor to perform the work hereunder in accordance with the provisions of this contract. This includes alleged failure of the Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Upon award of the contract, the.Contractor shall inform the Owner of the subcontractors and material sources that will be used. Upon the completion by the Contractor of the construction of the project, but prior to iinal payment to the Contractor, the Contractor shall deliver to the Owner releases of all liens, and of rights to claim any lien, from all manufacturers, material-men, and subcontractors furnishing services or materials for the project, to the effect that all materials or services used on or for the project have been paid for and indicating that the Owner is released from all such claims. 5. PAYMENTS TO MATERIAL-MEN AND SUBCONTRACTORS: The Contractor shall pay each material-men, and each subcontractor, if any, not later than five (5) days after receipt of any payment from the Owner, the amount thereof allowed the Contractor for and on account of materials furnished or construction performed by each material-men or each subcontractor. 6. REMEDIES: A. Completion of Contractor's Default If default shall be made by the Contractor or by any subcontractor in the performance of any of the terms of this proposal, the Owner, without in any manner limiting its legal and equitable remedies in the circumstances, may serve upon the Contractor and the Surety or Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and/or Engineer shall be made by the Contractor or its Surety or Sureties, the Owner may take over the construction of the project and prosecute the same to completion by contract or otherwise for the account and at the expense of the Contractor, and the Contractor and its Surety or Sureties shall be liable to the Owner for any cost or expense in excess of the contract price occasioned thereby. In such event the Owner may take possession of and utilize, in completing the construction of the project, any materials, tools, supplies, equipment, appliances, and plant belonging to the Contractor or any of its subcontractors, which may be situated at the site of the project. The Owner in such contingency may exercise any rights, claims or demands which the Contractor may have against third persons in connection with this contract and for such purpose the Contractor does hereby assign, transfer and set over unto the Owner all such rights claims and demands. B. Liquidated Damages (If required) The time of the completion of construction of the project is of the essence of the contract. Should the Contractor neglect, refuse or fail to complete the construction within the time herein agreed upon, after giving effect to extensions of time, if any, herein provided, then, in that event and in view of the diffculty of estimating with exactness damages caused by such delay, the Owner shall have the right to deduct from and retain out of such money which may be then due or which may become due and payable to the Contractor the sum of FIVE HUNDRED DOLLARS 500.00 per day for each and every day, including weekends, that such construction is delayed on its completion beyond the speci�ed time, as liquidated damages and not as a penalty; if the amount due and to become due from the Owner to the Contractor is insufficient to pay in full any such liquidated damages, the Contractor shall pay to the Owner the amount necessary to effect such payment in full: Provided, however, that the Owner shall promptly notify the Contractor in writing of the manner in which the amount retained, deducted or claimed as liquidated damages was computed. C. Cumulative Remedies Every right or remedy herein conferred upon or reserved to the Owner shall be cumulative, shall be in addition to every right and remedy now or hereafter existing at law or in equity or by statute, and the pursuit of any right or remedy shall not be construed as an election. Provided, however, that the provisions of the REMEDIES SECTION shall be the exclusive measure of damages for failure by the Contractor to complete the construction of the project within the time herein agreed upon. Section VII CITY OF DENTON GENERAL CONDITIONS FOR CONSTRUCTION ARTICLE 1 GENERAL PROVISIONS GENERAL DEFINITIONS 1.1 The following definitions apply throughout these General Conditions and to the other Contract Documents: a) THE CONTRACT DOCUMENTS The Contract Documents consist of the formal Building Construction Services Agreement between the 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 docuxnents 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 defned 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, 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. � THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards, and workxnanship 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 modiiied 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. 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 signiiicant 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 environxnental investigation, monitoring, or remediation under any federal, state, or local environmental laws, rules, or regulations; (7) any underground storage tanks, as deimed 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 meamngs: (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 Docuxnents and applicable laws, ordinances, construction codes, and regulations. 1.2 EXECUTION, CORRELATION AND INTENT (a) The Building Construction Services Agreement shall be signed by duly authorized representatives of the Owner and Contractor as provided in the Agreement. (b) Execution of the Building Construction Services Agreement by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions, including but not limited to subsurface conditions, under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. (c) The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; perforxnance 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. ( fl The Drawings and Speciiications are intended to agree with one another, and Work called for by Drawings and not mentioned in Speciiications, 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 ArchitecdEngineer/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 clariiication from the ArchitecdEngineer and resolution by the Owner. The Owner's decision as to the appropriate resolution of a conflict or discrepancy shall be iinal. 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 iinal position. (i) The most recently issued Drawing or Specification takes precedence over previous issues of the same Drawing or Specification. In the event of a conflict, the order of precedence of interpretation of the Contract Documents is as follows: (1) Amendments (see Paragraph 7.2 for order of precedence between Amendments); (2) the Building Construction Services Agreement; (3) addenda, with those addenda of later date having precedence over those of an earlier date; (4) the Supplementary General Conditions and Special Provisions, if any; (5) the General Conditions for Building Construction; (6) the Specifcations 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) specifcally defined in these General Conditions (except the terms deiined in Subparagraph 1.1(j), which terms are of common grammatical usage and are not normally capitalized); (2) the titles of numbered articles and identiiied 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 identiiied 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 environxnental site assessments that may have been given to the Owner or conducted for the property upon which the Project is to be constructed. THIS INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE. BY FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER SHALL HAVE NO LIABILITY FOR THIS MATERIAL. (b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. (c) Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent upon the Contractor to identify, establish, and maintain a current schedule of latest dates for submittal and approval, as required in Paragraph 3.10, including when such information or services must be delivered. If Owner delivers the information or services to the Contractor as scheduled and Contractor is not prepared to accept or act on such information or services, then Contractor shall reimburse Owner for all extra costs incurred of holding, storage, or retention, including 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 ArchitecdEngineer 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 classiiication, the time each is engaged in the Work, the equipment used in the performance of the Work, and for purpose of verification of Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct any portion of the Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails to carry out all or any part of the Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to stop the Work, or any portion of the Work, until the cause for the order has been eliminated. The right of the Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The rights of the Owner under this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under Paragraph 12.2. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure or refusal with diligence and promptness within fourteen (14) days after receipt of notice from the Owner, the Owner may correct the Contractor's failure or refusal or cause such failure or refusal to be corrected, without affecting, superseding, or waiving any other contractual, legal, or equitable remedies the Owner has, including but not limited to the Owner's termination rights under Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost of correction, including Architect/Engineer's compensation for additional services and expenses made necessary by the failure or refusal of the Contractor from payments then or thereafter due to the Contractor. The cost of correction is subject to veriiication (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 iinal 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 31 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 ArchitecdEngineer 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 Docuxnents, 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 Paragraph 3.12. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES (a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work, unless the Contract Documents set forth speciiic instructions concerning these matters. (b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's employees, Subcontractors, Sub-subcontractors, and their respective agents and employees, and any other persons performing portions of the Work under a subcontract with the Contractor or with any Subcontractor, and all other persons or entities for which the Contractor is legally responsible. All labor shall be performed by mechanics that are trained and skilled in their respective trades. Standards of work required throughout shall be of a quality that will bring only first class results. Mechanics whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise objectionable shall be dismissed promptly from the Work and immediately replaced with competent, skilled personnel. Any part of the Work adversely affected by the acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall be immediately corrected by the Contractor. (c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration of the Contract, or by tests, inspections, or approvals required or performed by persons other than the Contractor. (d) The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work. The Contractor's responsibility under this paragraph will not in any way eliminate the Architect/Engineer's responsibility to the Owner under the Architect/Engineer/Owner Agreement. (e) Any Contractor, Subcontractor, Sub-subcontractor, or separate contractor who commences Work over, in, or under any surface prepared by the Owner or by any 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 specifed by the Contract Documents and without having obtained the prior approval of the ArchitectlEngineer 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. (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 uniit 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 speciiied), 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 iinal payment, the terms and conditions of all special warranties required under the Contract Documents. 3.6 TAXES The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall not be liable for, or pay the Contractor's cost of, such sales and use taxes which would otherwise be payable in connection with the purchase of tangible personal property furnished and incorporated into the real property being improved under the -Contract Documents or the purchase of materials, supplies and other tangible personal property, other than machinery or equipment and its accessories and repair and replacement parts, necessary and essential for performance of the Contract which is to be completely consumed at the job site. The Contractor shall issue an exemption certificate in lieu of the tax on such purchases. 3.7 PERMITS, FEES AND NOTICES (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 ArchitectlEngineer 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. 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. 310 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 ArchitecdEngineer and the Owner an up-to-date status report of the progress of the various construction phases of the Work in the form of an updated construction schedule. This status report shall consist of a time scale drawing indicating actual progress of the various phases of the Work and the percentage of completion of the entire Work. The original construction schedule shall be updated or changed to indicate any adjustments to the Contract Time granted by the Owner. The updated schedule must be submitted with the Contractor's Application for Payment. No application will be certified without a satisfactory update to the construction schedule. (6) The construction schedule will also be revised to show the effect of change orders and other events on Contract Time. No request for an increase in Contract Time will be considered unless it is accompanied by a schedule revision demonstrating the amount of time related to the cause of the request. If the Contractor's status schedules reflect that the Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Contractor shall prepare a recovery schedule demonstrating how it intends to bring its progress back within the Contract Time. This recovery schedule shall be in a form acceptable to the Owner. (7) Costs incurred by the Contractor in preparing and maintaining the required construction schedule, any updated schedule, and any recovery schedule required by the Owner will not be paid as an additional or extra cost and shall be included in the Contract Sum. (8) The Contract Sum is deemed to be based upon a construction schedule requiring the full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED EARLY COMPLETION DATE. (b) The Contractor shall also prepare and keep current, for the Architect/Engineer's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the ArchitecbEngineer reasonable time to review submittals. (c) The Contractor shall conform to the most recent schedules approved as to form by the ArchitecdEngineer and the Owner. Any subsequent revisions made by the Contractor to schedules in effect shall conform to the provisions of Subparagraph 3.10(a) (d) If the Work falls behind the approved construction schedule, the Contractor shall take such steps as may be necessary to improve his progress, and the Architect/Engineer and the Owner may require him to increase the number of shifts, overtime operations, days of work, or the amount of construction plant, and to submit for approval revised schedules in the form required above in order to demonstrate the manner in which the agreed rate of progress will be regained, all without additional cost to the Owner. 3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings, Specifications, addenda, and Amendments in good order and marked currently to record changes and selections made during construction, and in addition shall maintain at the Project site approved Shop Drawings, Product Data, Samples, and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered to the Architect/Engineer for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES (a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work. (b) Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. (c) Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged. (d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor 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. (fl 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 ArchitecdEngineer. Work requiring this submittal and review shall be in accordance with approved submittals and any identiiied 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, feld measurements, and related iield 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 speciiic 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 thereo£ Further, notwithstanding any approval of a submittal by the Architect/Engineer, the Contractor shall be responsible for all associated Project costs, including costs of coordination's, modifications, or impacts, direct or indirect, resulting from any and all substitutions, changes, additions, deletions, omissions, or deviations, whether or not speciiically identified by the Contractor to the Architect/Engineer at the time of the above-mentioned submittals, including additional consulting fees, if any, in any and all accommodations associated with such substitutions, changes, additions, deletions, omissions, or deviations to the requirements of the Contract Documents. (i) The Contractor shall direct speciiic 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) Infortnational submittals upon which the Architect/Engineer is not expected to take responsive action may be so identi�ed in the Contract Documents. (k) When professional certiiication of performance criteria of materials, systems, or equipment is required by the Contract Documents, the ArchitecdEngineer 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 fit together properly. (b) The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise altering the construction, or by excavating. The Contractor 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 Rooiing and Welding. 3.15 CLEANING UP (a) The Contractor shall keep the Project site and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. Upon the completion of the Work the Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Contractor's tools, construction equipment, machinery, and surplus materials. (b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may clean up and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Contractor shall provide the Owner and the Architect/Engineer access to the Work in preparation and progress wherever located during the course of construction. 3.17 TESTS AND INSPECTIONS (a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or agencies having jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the �ontractor 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 certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the ArchitecdEngineer. (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 1NFRINGEMENT 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 1NFRINGEMENT OR OTHERWISE ACTIVELY INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor has reason to believe that a particular design, process or product speciiied infringes a patent, the Contractor shall immediately notify the Owner and the ArchitecdEngineer 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, FINES, PENALTIES, COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB-SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT THE 1NDEMNITY 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 ARCffiTECT/ENGINEER, AND 1N THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE ARCHITECT/ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED 1N ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WANING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. (b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages, compensation or beneiits payable by or for the Contractor or a Subcontractor under workers compensation acts, disability benefit acts or other employee benefit acts. (c) Indemniiication 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 ArchitecdEngineer under the above-mentioned laws and regulations are secondary to those of the Contractor. ARTICLE 4 CONTRACT ADMINISTRATION 4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER) (a) The design professional is the person lawfully licensed to practice architecture or engineering or a frm 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 quali�ed Owner representative to serve as the Architect/Engineer on the Project instead of an outside iirtn 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 ArchitecdEngineer is an outside person or iirm and the Architect/Engineer's employment is terminated, the Owner may, at its option, contract with a new outside ArchitecbEngineer to replace the former, or may designate a qualified Owner representative to serve as the Architect/Engineer. The replacement ArchitecdEngineer, whether an Owner representative, an independent ArchitecdEngineer 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 beneiiciary 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 ArchitectlEngineer shall employ all reasonable measures to safeguard the Owner against defects and nonconformities in the Work. The Architect/Engineer shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the Work. The Architect/Engineer will, however, immediately inform the Owner whenever defects or nonconformities in the Work are observed, or when any observed actions or omissions are undertaken by the Contractor or any Subcontractor which are not in the best interests of the Owner or the Project. (c) The Architect/Engineer and the Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The ArchitecdEngineer 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 coniirmation 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 ArchitecdEngineer 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 confortnance 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 speciiically stated in writing by the Architect/Engineer, of any construction means, methods, techniques, sequences, or procedures. The Architect/Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. (h) The ArchitecdEngineer 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 fnal 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 ArchitecdEngineer 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 ArchitectlEngineer will interpret and make recommendations to the Owner concerning performance under and requirements of the Contract Documents upon written request of either the Owner or Contractor. The Architect/Engineer's response to such requests will be made with reasonable promptness and within any time limits agreed upon. The Architect/Engineer shall secure the Owner's written approval before issuing instructions, interpretations, or judgments to the Contractor which change the scope of the Work or which modify or change the terms and conditions of any of the Contract Documents. (1) Interpretations and decisions of the Architect/Engineer will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of Drawings. When making such interpretations and decisions, the Architect/Engineer will endeavor to secure faithful perfortnance 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 ArchitecdEngineer has prior written approval of the Owner. 4.3 CLAIMS AND DISPUTES (a) Deiinition; 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 tertn 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 ofiicer (if not a corporation, then an ofiicial 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 WANED ANY CLAIM NOT MADE STRICTLY IN 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 fnal resolution of a claim the Contractor shall proceed diligently with performance of the Work and the Owner shall continue to make payments in accordance with the Contract Documents. (d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time associated with concealed or unknown conditions will normally be considered or allowed; provided, however, that the Contract Sum or Time may be adjusted by the Owner in such circumstances only if: (1) a concealed subsurface condition is encountered in the course of perfortnance of the Work; (2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or (3) an unknown physical condition is encountered below the surface of the ground or in an existing structure which is of an unusual nature and materially different from those ordinarily encountered and generally recognized as inherent in the character of the Work; and (4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3(a) of these General Conditions; and (5) the Owner and the Architect/Engineer determine that: (i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect the portion of the Project site where the condition was discovered; and (ii) the work caused or required by the concealed or unknown condition at issue can be considered extra work to the extent that additional new Drawings must be prepared and issued and new construction beyond the scope of the Contract Documents is required. (e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE INFORMATION AND REPORTS (1NCLUDING BUT NOT LIMITED TO SOILS TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT/ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR'S OWN RISK. THE OWNER AND THE ARCHITECT/ENGINEER DO NOT GUARANTEE OR WARRANT ANY INFORMATION SHOWN 1N THE PROJECT SITE INFORMATION AND REPORTS. ( fl Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding to execute the Work. Prior notice is not required for claims relating to an emergency endangering life or property arising under Paragraph 10.3. In addition, the Contractor's request for an increase in the Contract Sum for any reason (other than work performed under emergency conditions) shall be made far enough in advance of required work to allow the Owner and the Architect/Engineer a sufiicient 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 ArchitecdEngineer; (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: (ii) The Contractor shall either (A) have direct legal liability as a matter of contract, common law, or statutory law to the Subcontractor for the claim that the Subcontractor is asserting or (B) the Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Contractor has agreed to be legally responsible to the Subcontractor for pursing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Contractor's included markup (subject to the limits in the Contract Documents for any markup). The liability or responsibilities shall be identi�ed in writing by the Contractor to the Owner at the time such claim is submitted to Owner, and a copy of any liquidating agreement shall be included by the Contractor in the claim submittal materials. (ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its submittal to Owner and shall have independently evaluated such claim in good faith to determine the extent to which the claim is believed in good faith to be valid. The Contractor shall also certify, in writing and under oath to the Owner, at the time of the submittal of such claim, that the Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed to be valid. (iii) The Subcontractor making the claim to the Contractor shall certify in writing and under oath that it has compiled, reviewed and evaluated the merits of such claim and that the claim is believed in good faith by the Subcontractor to be valid. A copy of the certification by tl�e 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, OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an acceleration claim other than those described in this Clause (i)(3). (i) Waiver of Claims; Final Payment. The making of fmal 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 1N 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 ArchitecdEngineer, a list of the names, addresses, telephone numbers, M/WBE certification numbers (where applicable), and type of work of the Subcontractors (including those who are to furnish materials or equipment fabricated to a special design), proposed for the principal portions of the Work, including furnishings when made a part of the Contract. The Contractor shall immediately notify the Owner in writing of any changes in the list as they occur. The Architect/Engineer will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect/Engineer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect/Engineer to reply promptly shall constitute notice of no reasonable objection. (b) The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect/Engineer has made reasonable and timely objection. (c) Architect/Engineer's and Owner's approval of or objection to any Subcontractor or of a particular process or material will not relieve the Contractor of his responsibility for performance of Work as called for under the Contract Documents, and shall not provide a basis for any claim for additional time or money on the part of the Contractor. Approval shall not be construed to create any contractual relationship between the Subcontractor and either the Owner or Architect/Engineer. In no event shall the Contract Sum be increased as a result of the rejection of any Subcontractor. (d) The Contractor shall not change a Subcontractor previously selected if the Owner or Architect/Engineer makes reasonable objection to such change. 5.3 SUBCONTRACTUAL RELATIONS (a) By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by the Contract Documents, assumes toward the Owner and the Architect/Engineer. Each subcontract agreement shall preserve and protect the rights of the Owner and the ArchitecdEngineer 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, beguuung with the Second Application and Certificate for Payment, a Subcontractor Payment Report (the "Report") with each Application and Certiiicate for Payment. The Report shall show all payments made to date by the Contractor (plus existing retainage) to each Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by the Owner. As an alternative to the Report, the Contractor may furnish Affidavits of Payment Received with the Application and Certificate for Payment, which affidavits shall be executed by each Subcontractor owed money and paid during the previous progress payment period for work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION. (2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Contractor shall note the amount withheld and that payment is in dispute. The Owner may require the Contractor to document and verify the dispute or other problem in question. (3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear from the Report, statements of payment received or other information furnished to the Owner that: (i) the Report has not been properly completed; (ii) the Contractor has knowingly provided false information regarding payment of any Subcontractor; or (iii) the Contractor has otherwise failed to make payxnents 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. (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 veriiied by the Architect/Engineer; no increase in the Contract Sum, however, shall be due to the Contractor. (d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2(e). (e) Should the Contractor cause damage to the work or property of any separate contractor on the Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement, if the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim on account of any damage alleged to have been so sustained, the Owner shall notify the Contractor who shall defend such proceedings, at the Contractor's expense, 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 ArchitecbEngineer 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 coniirtn the terms and conditions established by Change Order; however, should the Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the change directed by the Owner and the Architect/Engineer to the best of his ability in accordance with the provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of the changes approved, including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY COMPENSATED 1N 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 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 iinal 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 proiit, such allowance in any case never to exceed 15%. In such case, the Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate supporting data as the Architect/Engineer and Owner may prescribe. Sworn copies of the itemized accounting shall be delivered to the Architect/Engineer each day during the performance of force account work, with copies to the Owner. FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN-TO ITEMIZED ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work are limited to the following: (1) costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers compensation insurance; (2) costs of materials, supplies and equipment (but not to include off-site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and (5) additional costs of supervision and iield ofiice personnel directly attributable to the changed Work. Pending fnal 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. ( fl 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 proft 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 Speciiications 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 ArchitecdEngineer, 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 iinal 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-iive (45) calendar days after submission to the Owner in iinal form with all supporting data. Receipt of a submission by Owner does not constitute acceptance or approval of a proposal, nor does it constitute a warranty that the proposal will be authorized by City Council Resolution or Administrative Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE CONSIDERED A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR INCREASE 1N 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 speciiied 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, iixed and agreed upon by and between the Contractor and the Owner because of the impracticality and extreme dif�culty of fixing and ascertaining the actual damages the Owner would sustain in the event of the Contractor's late completion of the Project, and the stipulated amount is agreed to be the daily amount of damages that the Owner would sustain. The Stipulated Amount, as it accrues, will be retained from any portion of the Contract Sum due or that may become due to the Contractor. In the event the portion of the Contract Sum retained by the Owner is insufficient 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, INCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK, INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR FAULT OF THE OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S REPRESENTATNE, 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 ArchitecdEngineer deems necessary due to unusual or severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due to failure on the part of the Contractor to correct conditions considered unsafe for workmen or the general public. If it should become necessary to stop the Work for an indefnite 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 ArchitecdEngineer or the Owner, and shall resume the Work promptly when notified by the ArchitecdEngineer 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 91 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 Specifcations. Contractor's Application for Payment shall be filed on the current version of AIA Form G702 (Application and Certiiicate 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 ArchitecdEngineer may require, including but not limited to copies of requisitions from Subcontractors and material suppliers, and reflecting the applicable retainage as required in the Contract Documents. Contractor's Application for Payment shall also provide other supporting documentation as the Owner or the other applicable provisions of the Contract Documents may require. (b) Applications for Payment may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Contractor's Payment Bond Surety consents in writing to payment to the Contractor of the funds deemed to be in dispute. (c) Unless otherwise provided in the Contract Documents, progress payments shall include payment for materials and equipment delivered and suitably stored at the Project site for subsequent incorporation into the Work within thirty (30) days after delivery to the Project site. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored away from the Project site at a location agreed upon in writing. Payment for costs incurred in storage of materials or equipment away from the Project site will NOT be made by Owner unless: (1) the Owner has given prior approval of such off-site storage in writing; (2) the materials or equipment are stored in a bonded warehouse located in Denton County and identified with the Project for which they are stored, as evidenced by warehouse receipts and appropriate documents of title; and (3) the materials or equipment stored off-site will be incorporated into the Work within thirty (30) days after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GNEN PRIOR APPROVAL OF SUCH STORAGE 1N 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 Certiiicates 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 classifed 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. ( fl If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are not furnished by the Contractor, no payment applied for will be payable under the Contract until the Work has been Finally Completed and accepted. 9.4 CERTIFICATES FOR PAYMENT (a) The Architect/Engineer will, within ten (10) days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the ArchitecbEngineer determines is properly due, or notify the Contractor and Owner in writing of the Architect/Engineer's reasons for withholding certification in whole or in part as provided in (a) City of Denton General Conditions for Building Construction. (b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA Form G702 (Application and Certificate for Payment) as approved by the Owner. (c) The issuance of a Certiiicate 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 speciiic qualiiications expressed by the ArchitecdEngineer. The issuance of a Certiiicate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified, subject to the Owner's approvaL The issuance of a Certificate for Payment is not a representation that the Architect/Engineer has: (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences or procedures; (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. (d) Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($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 Certifcate for Payment certified by the ArchitecdEngineer. The Application may include acceptable nonperishable materials delivered to the Work or stored as provided for in Paragraph 9.3(c) and the payment will be allowed on the net invoice value, less taxes and applicable retainage. (e) The City is required to withhold retainage for public works contracts in which the total contract price estimate at the time of execution is more than $400,000; however, this requirement is applied by the City for all public works contracts in excess of $50,000. The City may require varying percentage withholding amounts; however, the City requires five percent. The retainage will be withheld by the Owner from each progress payment until fnal completion of the Work by the Contractor, approval of final completion by the Architect/Engineer, and final acceptance of the Work by the Owner. Unless otherwise required by state law, the retainage percentage as specifed 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. ( fl No progress payments shall be made on contracts where performance and payrnent 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 Certifcate for Payxnent 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, certifcation will be made for amounts previously withheld. (c) The Owner may, at its option, offset any progress payxnent or final payment under the Contract Documents against any debt (including taxes) lawfully due to the Owner from the Contractor, regardless of whether the amount due arises pursuant to the terms of the Contract Documents or otherwise and regardless of whether or not the debt due to the Owner has been reduced to judgment by a court. 9.6 PROGRESS PAYMENTS (a) After the Architect/Engineer has issued a Certiiicate 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 payxnent 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 Certiiicate for Payment (including, without limitation, the �nal 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). ( fl A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not performed in accordance with the Contract Documents. 9.7 SUBSTANTIAL COMPLETION (a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date certified by the Architect/Engineer when construction is sufficiently completed in accordance with the City Of Denton General Conditions For Building Construction. (a) the Contract Documents such that the Owner may beneficially occupy and use the Work, or designated portions of the Work, for the purposes for which it is intended and only trivial and insignificant items remain which do not affect the Work as a whole. (b) When the Contractor considers that the Work, or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Architect/Engineer a comprehensive list of remaining items to be completed or corrected. The Contractor shall proceed promptly to complete and correct items on the list (hereinafter called the "punch list"). Failure to include an item on the punch list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the punch list, the Architect/Engineer will make an inspection to determine whether the Work, or designated portion of the Work, is Substantially Complete. If the Architect/Engineer's inspection discloses any item, whether or not included on the punch list, which is not in accordance with the requirements of the 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 ArchitecdEngineer. The Contractor shall then submit a request for another inspection by the Architect/Engineer to determine Substantial Completion. When the Work or designated portion of the Work is Substantially Complete, the Architect/Engineer will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the punch list accompanying the Certificate. (c) The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of responsibilities assigned to them in the Certificate. (d) Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by the Architect/Engineer, the Owner shall make payment, reflecting adjustment in retainage, if any, for the Work, or portion of the Work, as provided in the Contract Documents. 9.8 PARTIAL OCCUPANCY OR USE (a) The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate Supplemental Agreement with the Contractor, provided such occupancy or use is consented to by the insurer as 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 payxnents, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the (a) progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect/Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, . Contractor, and ArchitecdEngineer 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 representative, will promptly make final inspection and, when the Architect/Engineer finds the Work acceptable under the Contract Documents and the Contract Documents fully performed, the Architect/Engineer will promptly issue a final Certificate for Payment stating that to the best of the Architect/Engineer's knowledge, information and belief, and on the basis of the Architect/Engineer's observations and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Certificate is due and payable. The Architect/Engineer's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Contractor's being entitled to �nal payment have been fulfilled. Owner will normally make final payment within thirty (30) days after Owner's receipt and approval of the �nal Certiiicate 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 iinal payment nor any remaining retained percentage shall become due until the Contractor submits to the ArchitecdEngineer: (1) an afiidavit 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 satisiied; (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after iinal 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 payxnent 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 ArchitecdEngineer confirms the delay, the Owner shall, upon application by the Contractor and certiiication by the Architect/Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect/Engineer prior to certification of payment. Payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. (e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete release of the Owner from all claims or liabilities under the Contract, for anything done or furnished or relating to the Work or the Project, or for any act or neglect of the Owner relating to or connected with the Work or the Project. ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL COMPLIANCE 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract, and will comply with all applicable City, County, State and Federal health and safety regulations. 10.2 SAFETY OF PERSONS AND PROPERTY (a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and (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 detertnination as to whether explosives shall actually be used, and for any result from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the Architect/Engineer against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, as the result of the use, handling or storage of the explosives by the Contractor or any Subcontractor, REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT/ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this Contract, this paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this Contract and is not intended to create or grant any rights, contractual or otherwise, to or for any other person or entity. The Contractor shall furnish the Owner and the Architect/Engineer with evidence of insurance suffcient to cover possible damage or injury, which insurance shall either include the Owner and the Architect/Engineer as additional insureds or be suffciently 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 Deparhnent 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 sufiiciently 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. ( fl 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 ob(igations 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. 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 �re 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 Trafiic Control Deparhnent 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 beneiit 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 deparhnents. 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 sufiicient 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 fnally accepted by the Owner. 10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall conform to the Contractor's current and approved schedule for the performance of the Work, provided that proper notification of schedule requiremEnts has been given to the Owner by the Contractor. 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS When existing storm sewers or drains have to be taken up or removed, the Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Contractor shall also take care of all storm sewage and drainage which will be received from these storm drains and sewers; for this purpose, the Contractor shall provide and maintain, at the Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor shall, at the Contractor's own expense, construct such troughs, pipes, or other structures necessary and shall be prepared at all times to dispose of storm drainage and sewage received from these temporary connections until such time as the permanent connections are built and in service. The existing storm sewers and connections shall be kept in service and maintained under the Contract, except where specified or ordered to be abandoned by the Architect/Engineer. All storm water and sewage shall be disposed of in a satisfactory manner so that no nuisance is created and that the Work under construction will be adequately protected. 10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER; ELECTRICITY FOR THE PROJECT (a) When the Contractor desires to use the Owner's water in connection with the Work, the Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Contractor uses. Where meters are used, the charge will be at the regular established rate; where no meters are used, the charge will be as prescribed by City ordinance, or where no ordinance applies, payment shall be based on estimates made by the Denton Water Utilities Department. (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 iire 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 Deparhnent in accordance with the Denton City Code. 10.10 ENVIItONMENTAL 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 identiiication, 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, fre prevention regulations, and pollution prevention policies and procedures. The SPRP shall include estimates of the quantity and rate of flow should equipment fail, and detail containment or diversionary structures to prevent spills from leaving the site or migrating into adjacent properties or navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable twenty-four (24) hour emergency phone numbers, including without limitation that of the Owner's Project Manager or other designated representative. The Contractor shall not commence any field work prior to approval of such plan by the Owner. The following additional rules shall apply with respect to spills caused by the Contractor or a Subcontractor: (1) The Contractor shall immediately report any spill or release at the Project site, whether or not it is associated with this Contract, to the Owner's Project Manager or other designated representative. Thereafter, within two (2) working days after the occurrence of such event, the Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas Commission on Environxnental Quality (TCEQ) regulations and any other applicable federal, state, or local laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those transporters and disposal facilities that are approved in advance in writing by the Owner. A copy of all transport manifests for the spilled materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request of the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF THE CONTRACTOR. (4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental discharge or release. (e) Clean Air Management Plan. The Contractor shall comply with the Clean Air Management Plan submitted to and approved by the Owner during the contractor selection process. The Owner reserves the right, at the Contractor's sole expense, to require the removal or retroiitting of any equipment used in the course of construction that does not comply with the Plan submitted to and approved by the Owner. ( fl 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 iiling of a notice of intent to obtain and abide by the general storm water permit for construction activities promulgated by EPA, including but not limited to cleaning, grading, and excavation that disturb the applicable amount of total land area. In addition, the Contractor shall comply with all regulations of the Owner relating to storm water and storm water runoff management at the Project site pursuant to Chapter 19, Article IX, Denton City Code, as amended. (h) The Contractor shall not install any materials in the performance of the Work that contain asbestos or asbestos-related material such as hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non-friable. (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 ll.l CONTRACTOR'S INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.2 PROPERTY INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.3 `UMBRELLA' LIABILITY INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.6 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and delivery of the Construction Services Agreement, furnish and file with the Owner in the amounts required in this Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended; each bond shall be signed by the Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 11.3(c) and approved by the Owner. The surety bonds shall be accompanied by an appropriate Power-of-Attorney clearly establishing the extent and limitations of the authority of each signer to so sign: (1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and faithful execution of the Work and performance of the Contract in accordance with Plans, Specifications and all other Contract Documents, including any Amendments thereof, for the protection of the Owner. This bond shall also provide for the repair and maintenance of all defects due to faulty materials and workmanship that appear within a period of two (2) year from the date of final completion and acceptance of the improvements by the Owner or lesser or longer periods as may be otherwise designated in the Contract Documents. (2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and prompt payment of all claimants supplying labor or materials in the prosecution of the Work provided for in the Contract Documents and any Amendments thereto, and for the use and protection of each claimant. (b) If the Contract Sum, including Owner-accepted alternates and allowances, if any, is greater than $100,000, Performance in 100% of the Contract Sum are mandatory and shall be provided by the Contractor. If the Contract Sum is greater than $50,000 but less than or equal to $100,000, only a Payment Bond in 100% of the Contract amount is mandatory; provided, however, that the Contractor may elect to furnish a Performance Bond in the same amount if the Contractor so chooses. If the Contract Sum is less than or equal to $25,000, the Contractor may elect not to provide Performance and Payment Bonds; provided that in such event, no money will be paid to the Contractor until final completion and acceptance of all work by Owner. If the Contractor elects to provide Performance and Payment Bonds 100% of the total Contract Sum, progress payments in accordance with these General Conditions shall be disbursed. (c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds or who is a party to any litigation against the Owner. All bonds shall be made and executed on the Owner's standard forms, shall be approved by the Owner, and shall be executed by not less than one corporate surety that is authorized and admitted to do business in the State of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current United States Department of the Treasury List of Acceptable Sureties, and is otherwise acceptable to the Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively in Denton County, Texas. Each surety shall designate an agent resident in Denton County, Texas to whom any requisite statutory notices may be delivered and on whom service of process may be had in matters arising out of the suretyship. (d) The person or persons, partnership, company, �rm, 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. 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 ArchitecdEngineer 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 ArchitectlEngineer 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 ArchitecdEngineer'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 iinal 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 certiiication of Substantial Completion or Final Completion. The one year period also does not relieve the Contractor from liability for any defects or deiiciencies in the Work that may be discovered after the expiration of the one year correction period. (e) The Contractor shall remove from the Project site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. ( fl If the Contractor fails to correct defective or nonconforming Work within a reasonable time after notice from the Owner or the ArchitecdEngineer, 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 deiiciency. 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 payrnent 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 iinally completed, the final inspection is made by the Architect/Engineer, and iinal acceptance and final payment is made by the Owner. 13.2 WARRANTY FULFILLMENT Prior to the expiration of the specified warranty period provided for in the Contract Documents, the Architect/Engineer will make a detailed inspection of the Work and will advise the Contractor and the Contractor's Surety of the items that require correction. The Architect/Engineer will make a subsequent inspection and if the corrections have been properly performed, the Architect/Engineer will issue a letter of release on the maintenance stipulations to the Contractor and the Surety. If for any reason the Contractor has not made the required corrections before the expiration of the warranty period, the warranty provisions as provided for in the Contract Documents shall remain in effect until the corrections have been properly performed and a letter of release issued. 13.3 TERMINATION BY THE OWNER FOR CAUSE (a) Notwithstanding any other provision of these General Conditions, the Work or any portion of the Work may be terminated immediately by the Owner for any good cause after giving seven (7) days advance written notice and opportunity to cure to the Contractor, including but not limited to the following causes: (1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of written notice by the Owner to commence the Work. (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 suffcient 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 workxnanship, 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 iiling by the Contractor of litigation against the Owner prior to completion of the Work. (b) When the Work or any portion of the Work is terminated for any of the causes itemized above or for any other cause except termination for convenience pursuant to Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner, discontinue the Work or portion of the Work as the Owner shall designate, whereupon the surety shall, within iifteen (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 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 fen (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 ArchitecdEngineer 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 iinished during the period of the temporary suspension (no proiit and overhead shall be allowed on top of these costs); and (3) if it becomes necessary to move equipment from the Project site and then return it to the Project site when the Work is ordered to be resumed, an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable cost of these moves; provided, however, that no adjustment shall be due if the equipment is moved to another Project site of the Owner. ARTICLE 14 MISCELLANEOUS PROVISIONS 14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS (a) This Contract shall be governed by the laws and case decisions of the State of Texas, without regard to conflict of law or choice of law principles of Texas or of any other state. (b) This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations of the State of Texas and the Government of the United States of America. The Contractor shall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable State and Federal laws, rules and regulations, as amended. 14.2 SUCCESSORS AND ASSIGNS The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the promises, covenants, terms, conditions, and obligations contained in the Contract Documents. The Contractor shall not assign, transfer, or convey its interest or rights in the Contract, in part or as a whole, without written consent of the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without 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 ofiicer, partner, or other designated representative of either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three (3) days after mailing. 14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER (a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and remedies available to the Owner under the Contract Documents shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or made available by law. (b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under the Contract Documents, nor shall any action or failure to act by the Owner constitute approval of or acquiescence in a breach of the Contract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in offce, and any officer or employee of Owner guilty thereof shall thereby forfeit his ofiice or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, iirm, 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 offcial that the City of Denton employee or official is prohibited by law from accepting. (b) For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including beneiit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. (c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any employee of the Contractor from the Project who has violated the restrictions of this Article or any similar State or Federal law, and obtain reimbursement for any expenditures made to the Contractor as a result of the improper offer, agreement to confer, or conferring of a benefit to a City of Denton employee or official. ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS By execution of the Building Construction Services Agreement, the Contractor grants the Owner the right to audit, at the Owner's election, all of the Contractor's records and billings relating to the performance of the Work under the Contract Documents. The Contractor agrees to retain its Project records for a minimum of five (5) years following completion of the Work. The Owner agrees that it will exercise the right to audit only at reasonable hours. City may review any and all of the services performed by Contractor under this Contract. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to City's rights as may be disclosed by an audit under this section. ARTICLE 16 NOTICE OF CONTRACT CLAIM This Contract is subject to the provisions of the Denton City Code, as amended, relating to requirements for iiling a notice of a breach of contract claim against City. Contractor shall comply with the requirements of this ordinance as a precondition of any litigation relating to this Contract, in addition to all other requirements in this Contract related to claims and notice of claims. Should a conflict arise between the PO, RFP document, supplier terms, drawings, specifications, construction document, or contract; the terms and conditions set forth in the �,'it ar�' �eiz�r�r� ��ue�M�xl �c��i�� ria� �h� r�+� �t��t��i ��t�•s�� s1��1� e•��ui�, ': 1 , • �• :� 1' STATE OF TEXAS § COUNTY OF DENTON § Bond #46BCSGL9345 KNOW ALL MEN BY THESE PRESENTS: That CBS Roofin� �c:dFr��c�es whose �. . . ____..�._�.� � ....w� w � ._ address is 5001 W Univ_ersitv, Dwr Denton, TX 76207 hereinafter called Principal, and Nartford Fire T��,r�� ??'?�� _ � a corporation organized and existing under the laws of the State of _ mmm Connecticut �mm, and fully authorized to transact business in the State of Texas, as Surety, are held and firmly bound unto the City of Denton, a municipal corporation organized and existing under the laws of the State of Texas, hereinafter called Owner, in the penal sum of m�"B��rr 1��i�w��.�_r��er�t�a..��i�:�:...lN�c�aa��rm�,ci ��v��,��r�cl��cl l��r� d�)(.�I �_11,��!� a��r�9 m�r�� CENTS ($399,740.00), in lawful money of the United States, to be paid in Denton County, Texas, for the payment of which sum well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. The amount of this Bond shall automatically be increased by any Change Order or Supplemental Agreement, however, increases to this bond and the Contract price shall not exceed twenty-five (25) percent in the aggregate of the original authorization contract amount, in accordance with Texas Local Government Code 252.048, but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease the penal sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract, identified by File # 5689, with the City of Denton, the Owner, dated the 18t" day of November A.D. 2014, for Filemmmm#5689 — Interlocal Purchasin�ystem (TIPSI, Pro�ramwwContractw#2042414 formthemmi� �q��ement of the Emilv Fowler Librarv Roof�mm_ NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill all of the undertakings, covenants, terms, conditions and agreements of said Contract in accordance with the Plans, Specifications and Contract Documents during the original term thereof and any extension thereof which may be granted by the Owner, with or without notice to the Surety, and during the life of any guaranty or warranty required under this Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of said Contract that may hereafter be made, notice of which modifications to the Surety being hereby waived; and, if the Principal shall repair and/or replace all defects due to faulty materials and workmanship that appear within a period of two (2) years from the date of final completion and final acceptance of the Work by the Owner; and, if the Principal shall fully indemnify and save harmless the Owner from all costs and damages which Owner may suffer by reason of failure to so perform herein and shall fully reimburse and repay Owner all outlay and expense which the Owner may incur in making good any default or deficiency, then this obligation shall be void; otherwise, it shall remain in full force and effect. File # 5689 PROVIDED FURTHER, that if any legal action be fled upon this Bond, exclusive venue shall lie in Denton County, State of Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc. This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices'may be delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in four copies, each one of which shall be deemed an original, this the 18t" day of November, 2014. ATTEST: � � �i � BY� �� w � �, �� [�d�' C� :" i�ARY WIT'NESS: � . �� BY: .�....�.. ��'�'��_ � ��,. �� . PRINCIPAL .._� S CBS Roo in� Service __.�. .�. ��_.�. _ �� BY: .� � � ' � ��W'"� �,..__..�_� .�._ PRE�"� f �.)1:^��J° �w SURETY ��ire Insu � nce � �a��.aa��r �m,� e F, � N��r�l� ��a _ � . ATTORNEY 1kJ-FAC�.�..��.... BY: � .M � racy Tucker The Resident Agent of the Surety for delivery of notice and service of the process is: NAME: William Lawrence Brown STREET ADDRESS: 10300 N Central Exuv. #580 Dallas, TX 75231-8630 ��W..�._. .......� �. � ......�_�_._..___.... .....��_�.�� .�.. , (NOTE: Date of Perforrrtance Bond must be date of Contract. If Resident Agertt is not a corporation, give a person's name.) File # 5689 'i � � , . � , i � � STATE OF TEXAS COUNTY OF DENTON � � � . � � � � L � KNOW ALL MEN BY THESE PRESENTS: That �-�3�� Roof��m��r•��a�� , whose address is 5001 W University Dr Denton, TX 76207 _ hereinafter called Principal, and � �rt�nr� �ir� �n�e��°��r��P �'��n� m a corporatian organized and existing under the laws of the State of _ aaa ___ �Connecticut , � and fully authorized to transact business in the State of Texas, as Surety, are �held andmmmfirmly bound unto the City of Denton, a municipal carporation 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 ar improvements hereinafter referred ta, in the penal sum of Three hundred ninet -y nine thausand seven hundred fortv DOLLARS and nn C'F,NT� „($399,740.00� in lawful money of the ....�d....�mw�, . _ United States, to be paid in Denton, County, Texas, for the payment af which sum well and truly to be made, we hereby bind aurselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. The amount of this Bond shall autamatically be increased by any Change Order or Supplemental Agreement, however, increases to this bond and the Contract price shall not exceed twenty-five (25) percent in the aggregate of the original authorization contract amount, in accordance with Texas Local Government Code 252.048, but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease the penal sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract, identified by File #5689, with the City of Dentan, the Owner, dated the 18t� day of November A.D. 2014, for File #5689 — Interlocal Purchasing S s� (TIPS) Pro�ram (;` � � _�m_��p _, ,n „e Emilv F��uler Librar� Roof�mm_ �ar��r��c I#2042414 for the Re lacement of th 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, extensian 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 natice of any such change, extension of time, alteratian or addition to the terms of the Contract, or to the Work ta be performed thereunder, or to the Plans, Specifications, Drawings, etc. File # 5689 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 18th day of November, 2014. ATTEST: BY:`" "�� .,,�� mm�,�� ""'�. � � k a�" �� 1:"�N� "ARY � ��„ .�._.... WITNESS: � � BY; �....:.__...m_..� _... .__:.__: _. W. PRINCIPAL CBS Roo�� . �s �..� � � �.� .. � .m_. m� Ser � BY: �,.. � , �.,, � .�� ,�IC��I`°I" ........�...�......m.� SURETY � urance Com��^ 1-��°1�.6�rr� Fire Ins � _ ,_._ � � �,� BY ,. .._. �_ �� _ , ��'�� i�)1�Nl��Y- �� -FACT Tracy I s.i�l��r' The Resident Agent of the Surety for delivery of notice and service of the process is: NAME: , William Lawrence_Brown ___mmmmmmm__ .._.��._.�,�w STREET ADDRESS: 10300 N Central Expy, #580 Dallas, TX 75231-8630 (NOTE: Date of Payment Bond must be date of Contract. If Resident Agent is not a corporation, give a person's name.) File # 5689 Direct Inquiries/Claims to: THE HARTFORD ' BOND, T-4 One Hartford Plaza Hartford, Connecticut 06155 call: 888-266-3488 or fax: 860-757-5835 KNOW ALL PERSONS BY THESE PRESENTS THAT: Agency Code: 46-503405 & 46-503582 �, Hartford Fire Insurance Company, a corporation duly organized under the laws of the State of Connecticut � Hartford Casualty Insurance Company, a corporation duly organized under the laws of the State of Indiana X� Hartford Accident and Indemnity Company, a corporation duly organized under the laws of the State of Connecticut �� Hartford Undervvriters lnsurance Company, a corporation duly organized under the laws of the State of Connecticut � Twin City Fire Insurance Company, a corporation duly organized under the laws of the State of Indiana �G' Hartford Insurance Company of Illinois, a corporation duly organized under the laws of the State of Illinois �� Hartford Insurance Company of the Midwest, a corporation duly organized under the laws of the State of Indiana �� Hartford Insurance Company of the Southeast, a corporation duly organized under the laws of the State of Florida having their home office in Hartford, Connecticut, (hereinafter collectively referred to as the "Companies") do hereby make, constitute and appoint, up to the amount of unlimited: Tracy Tucker, W. Lawrence Brown, Steven Tucker of Fort Worth, TX their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign its name as surety(ies) only as delineated above by �, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. In Witness Whereof, and as authorized by a Resolution of the Board of Directors of the Companies on January 22, 2004 the Companies have caused these presents to be signed by its Assistant Vice President and its corporate seals to be hereto affixed, duly attested by its Assistant Secretary. Further, pursuant to Resolution of the Board of Directors of the Companies, the Companies hereby unambiguously affirm that they are and will be bound by any mechanically applied signatures applied to this F'ower of Attorney. +�,'ww�+�,� �^�� a . ��wbw�a r,��, � � !r�K ��y� �,,� � d'" `""1 �pyy� ^� � �� • *'�r� �" W M� ^�a � iM �>b'�irNM 1dP � �'= �,'W^'^W�a�' " ��p s� CyAeyCYI'W�kfM,r�t� ��a � .M i^^ '� 5�141 " i�� A'�� • a.�a r s� • � � "�+ ,� �cr,ws1rGw9 �" +"�u�ralw��' �"Y 4 1979 � �^�'r, iyT9 ,�` S��, i9T9 � �, r y; �r "� ,^�4"� �"" � s•„' w�. � � '"=w„"�M..�.»�w� �"� � a � �� k r� .� � d��.+" , �yM " *,�,m a+N . � J'a�y�"��• �"W""M'' r� �y ya,� i i aAr�y� �4'+rbkt�' � �"f",��,;� ��.�� ., _ ... . � �'� �,��n . �� A �� Wesley W. Cowling, Assistant Secretary STATE OF CONNECTICUT � ss. Hartford COUNTY OF HARTFORD ,�� '� �.�..�..�.m, � M. Ross Fisher, Assistant Vice President On this 3`d day of November, 2008, before me personally came M. Ross Fisher, to me known, who being by me duly sworn, did depose and say: that he resides in the County of Hartford, State of Connecticut; that he is the Assistant Vice President of the Companies, the corporations described in and which executed the above instrument; that he knows the seals of the said corporations; that the seals affixed to the said instrument are such corporate seals; that they were so affixed by authority of the Boards of Directors of said corporations and that he signed his name thereto by like authority. �,"�y �_�»� � _� �� '�� `'�� "� �g'� , a� , �� 'w �1,1kIW.NF?. w�.. °s'coft F... Pc�:;�ka �dotary Pubfic CERTIFICATE �Y r��Ga�� F'xpices OcroF��r 31, 2Q 12 I, the undersigned, Assistant Vice President of the Companies, DO HEREBY CERTIFY that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is still in full force effective as of November 18, 2014 . Signed and sealed at the City of Hartford. �,a^rw,�, ,� � �� w�a�w �r,r ,�.� �� ruR� � � � ,,��,� �, ,�„ ""� ��.��`" ,. �� " ,� ,f �,� . k�" �w"rn 4n y Omr.sl� tR'r � �a !��+� i° � w �� '�i' �J!1�'rvnx �t ,� ;�:u" � ,�r,tr �" ,'� ,W ^ �� l'Rf�7 *" ��'�� + �s? $g� � � '�" � a'S � . iM � � �a� � ��"axroax�u�w��..�� * �urY4fiklMh ,� � �a r,�'�� ,�,m 3't�7� „�".� �� C:*i� +y�; , " '� �� '"'�..�..�'`� � �" � �, �, a� «a� ..,��, • a� .�' �m� � �� +� �.. �9�p�a., :��.� `�+h�r�r+r�" .4y.�,�{.��W'�� n ��,��ataAe��5 r�v�wu�" '� R�"�� „ f � �r �$-Ga:9�i,��,'� �)?��M�ay p . � �� h Gary W. Stumper, Assistant Vice President IMPORTANT NOTICE To obtain information or make a complaint: You may contact your agent. You may call Hartford Insurance Group at the toll free telephone number for information or to make a complaint at: 1-800-392-7805 You may also write to The Hartford: The Hartford Hartford Financial Products 2 Park Avenue, 5t" Floor New York, New York 10016 1-212-277-0400 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 1-800-252-3439 You may write the Texas Department of Insurance P.O. Box 149104 Austin, TX 78714-9104 Fax Number (512) 475-1771 Web: http://www.tdi.state.tx.us E-mail: ConsumerProtection@tdi.state.tx.us PREMIUM OR CLAIMS DISPUTES: Should you have a dispute concerning your premium or about a claim you should contact the agent first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR POLICY: This notice is for your information only and does not become a part or condition of the attached document. F-4275-1, ./TX4275-1 HR 42 H006 00 0807 AVISO IMPORTANTE Para obtener informacion o para someter una queja. Puede comunicarse con su agente. Usted puede Ilamar al numero de telefono gratis de The Hartford Insurance Group para indormacion o para someter una queja al 1-800-392-7805 Usted tambien puede escribir a The Hartford. The Hartford Hartford Financial Products 2 Park Avenue, 5t" Floor New York, New York 10016 1-212-277-0400 Puede comunicarse con el Departamento de Seguros de Texas para obtener informacion acerca de companias, coberturas, derechos o quejas al: 1-800-252-3439 Puede escribir al Departamento de Seguros de Texas P.O. Box 149104 Austin, TX 78714-9104 Fax Number (512) 475-1771 Web: http://www.tdi.state.tx.us E-mail: ConsumerProtection@tdi.state.tx.us DISPUTAS SOBRE PRIMAS O RECLAMOS: Si tiene una disputa concerniente a su prima o a un reclamo, debe comunicarse con su agente primero. Si no se resuelve la disputa, puede entonces comunicarse con el departamento (TDI). UNA ESTE AVISO A SU POLIZA: Este aviso es solo para proposito de informacion y no se convierte en parte o condicion del documento adjunto. EXHIBIT E INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIltEMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracled work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the projec� Contractor inay, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notifccation that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be inaintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- VII or better. • Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. � That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or �naterially changed before the expiration date. File # 5689 Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, Ciry may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property File # 5689 damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than 500 000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non-owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a$500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its ofiicials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than __ __ __�� each occurrence are required. File # 5689 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee iidelity. The employee fdelity portion of this coverage should be written on a"blankeY' basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a speciiic contract, that requirement will be described in the "Specific Conditions" of the contract speciiications. File # 5689 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. De�nitions: Certiiicate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perforxn on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which fixrnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, ofiice supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certiiicate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on fle certiiicates of coverage showing coverage for all persons providing services on the project; and File # 5689 2. no later than seven days after receipt by the contractor, a new certiiicate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classiiication codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certiiicate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on iile for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, File # 5689 within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) -(7), with the certificates of coverage to be provided to the person for whom they are providing services. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be iiled with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions contract by the contractor which entitles the governmental entity contract void if the contractor does not remedy the breach within receipt of notice of breach from the governtnental entity. File # 5689 is a breach of to declare the ten days after EXHIBIT F � .� .. ......_�.�� ...� � _.. CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doinQ business with local �overnmental entity II This questionnaire reflects changes made to the law by H.B.1491, 80th Leg., Regular Session. This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be itled with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be fled. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor, . ..._. ..� ..�_ �� ._��..�..._.�._...______. � hl�me �f person who has a business relationship with local gavr�r�nm�nt<�N �ntit�p, M 7�'� �.�...� Ci....� 5"' � i � � � �..... . .- . � a �, � . � ,. 2 Check this box if you are filing an update to a previously filed questionnaire. {�'��c� law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7`h business �� ta� ��a� c1�t� ki�a� a�rd 1��NN filed p��aar�ra�riu� becomes incom 1rt�t+� or irr��aY�o��ate� � Name of local government officer with whom filer has an employment or buslness relationship. Name of Officer This section, (item 3 including subparts A, B, C& D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), L.ocal Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment inco�ne, from the filer of the questionnaire? Yes � ��t��r B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local govemment officer named in this section AND the taxable income is not received from the local govemmental entity? � Yes L�� C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local govermnent officer serves as an officer or director, or holds an ownership of 10 percent or more? � Yes ��tx D. Describe each affiliation or business relationship. � I have no Conflict of In � mmmmmITITITIT�� WW ��IT� ��W��WWWWW� .......... 4 terest to disclose. .� �. ��., � a.+�'� .. ,.��.�,,,,,,,,,,,,,,,,,,_... . . .......... .... ......... �,.m ��.� � � � .� � � �� ,� �� ._ ....... .....��.,,,,,,,_.... D c _mh r 1 � 2014 Signature of person doing business with the govenvnental entity Date File # 5689 EXHIBIT G CONTRACTOR5 PROPOSAL (Attached) File # 5689 EXHIBIT G Proposal .. . .. , ROOFING SERVICES A Division of CBS Mechanical, lnc. 5001 WES'I' UN[VERSITY DR1VF, DENTON, TEXAS 76207 (940) 387-7568 FAX (940) 387-3890 Attn: David Saltsman PItOP(�SAL SLJN3N11T"f'ED'f0: PHONE: U7�°�"�;: City of Denton 940-349-7247 October 16, 2014 STREET; JOB NAME: 869 S. Woodrow Emily Fowler Library CIT`!, STATF., AND ZIP CODE; JOB LOCA1'ION: ' Der�te�a�, �'7� 76205 502 Oakland St., Denton, TX 76201 TIPS #: PLANS BY: FAX: EMAIL,: 2042414 940-349-7266 We hereby submit specifications a�id estimates for: i�'r�v�c�a� I��ar �r��wtum��;a�:� �ncl �e �.i ar�►crat E��x� t�� ia��Pun : er �r�i�k�'«� :� �^ci�c�tu��: Section 07530 - Coal tar elastomeric roofing system Section 07600 - Sheetmetal and miscellaneous accessories Section 07411 - Standing seam metal roof system Section 07420 - Preformed metal wall panels Base bid: $399,740 �t ��. �ti�,d°ra��t�B 0��e,a� inu �rr�vuiu� at K�i�; aNEra7�v� �v�ti°a�� "i�¢ i�N�,o� .aercY r��unu m enm7,, rt a� a�a,�r�e^r�ap�6srz�:�V k�r� aN�� d+;�u�1M�� qktr�g M9v� same ��aVi t�� q°�aoi�9 to sa�a� dxs�K�a:� ��E t 4�4 P�!'�.��aaariaciaV, �r��aa �aa d�� p,YG:r: oFbusiness sn Dentor�, Texas, promptly as provided herein, and in the event samu is not so paad we agree to pay interest at tv+eive (12%} percent on same amount from its ' +.�4t� date and in [hc event the same in colfected ihrough suit ar through and Attomey, lhe Probate Court or Eiankrupt�;y Court, we agree to pay eeasonabie colfectaovr cxpenses, rr��i�,��V�xti�, but r�ot (imiYed to attomey's fees thercon. lf it beconies necessary Ea flc lien to secur� 4'wids under diis agreerraent we herehy agree to reimburse CSS f��chanicai, tao-cs for expenses incurred in thc preparation Uf said lien the sum aP$300,00, in addition ta the Coregoing reasoitiabfe colfection expenses, inuluding b�st not limited to attorney°s tr�t.� CE§S Ml[sCilflNICAL PFtOVIDES CC3MIPREHF•.NSI�(E GENF:[d�L L[A6[LfTY. WORKE[tS C`OIVIP�;NSA'fiON, AU'CCDt�hOBILE L IL,(T'`! AND CXCFSS L ILI`I'Y IhlSIJRANCC C()VF,RAGC, A CLRTIF'fC'E1"iE 1S AVAILAB[.0 ON FiEQUES"f. ��'�it14`91& �,Cp �,Y°S'4Qr1 �"B;r:M rr 1a1�1M1'�!' . ..�•• �. PER EXECUTED CONTRACT DOCLIMENTS ..�_. ,_..,. �_._ _ �� A�vtiiP�io.d� is �.ura��warz�Y�ra^�� to �ra� as �„�rw:e:u ou�a� wwa�' ��u h� ��a�rx��^te��e{ I�a a � � � � , S g atu e� .��. � .:.��. � �.�" ,. � �w��a! willbecome an uxtra char� e over and above the estireiate. Y P �L�.m �� bov�ps��ec�fic�tions involvin'� z tratc�astsrwill be`executed onferUti�; Wr tten�ardc,rso� »� �wmm�� pl' agreernents contingent upon strikes, accidents, or del7ys beyond �rour con4rol �� 's[�, b(;il��$� i.�^��w� � to carry fire, tornado and other necc�sary istisurance. ()ur evorkers or Pully ��r��,��r by �•nrkLm,L�°s co�'a�„s�tro� �n§�r�n�e. Note: This proposal may be withdrawn by us it not accepted witnin 3U days. _ �,� .�.��....�� .�,,,,��_.� �.��.��..��..,,,�.�.�.�..�.��.�m� ,��.��;�1�t��a� +��i ,��cA�rc.r��_ tl"Ft�� above prices, speciitcatintts and cottditions are satisfactnry attd are hereby accepted. You are authori-red ta do the worh as specified. Payment wi(I be made as autlincd abave. SlgflatUf@: �� CD� ��...__.�......w�. �..._�� t�x�r+�a .. __m _mm__. . ---___ __.__. Si�nature;..�..�..�.e__,�...,��.�.�.... 'i� � DAiE (MMIDDIYYYY) �''�`�"�'�"" CERTIFICATE OF LIABILITY INSURANCE 12�1�2014 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�. Tucker A enc Ltd, �� ti�� Branch C�9VWT/k�i ..m Y„ PRODUCER g y, ��""� �y (817�336-851� � �� pr'� �..fB17)336-6501 P O Box 2285 �.�,^,�N��.�aa�^�rCa ��r�3�+��'. com Ft. Worth TX 76113 INSURE �� D CBS Roofing Services (A Division of CBS Mechanical, Inc.) 5001 W University Dr Denton TX 76207 � �wer�.,�u�^� mirx�ur��ac�..m�cr eAmerisure Partners Ins c �St Paul WFire & Mar' � ine_ o:FederalmmInsurance _ _ ComA r: C��V�i�,A�� CERTIFICATE NUMBER:�BS Roof 14-15 All Lines ��V1�M�N 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, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. �... � ... W...�. . � ooi. s ��ia .. �.�� . .... W�I,G�Y ��r.... �mL.l��'m' � N� .� m�... . � _.� INTR TYPE OF INSURANCE Iuaa fi�� p�RC'N hVIU7ypFtF�' E++kpC7�,ry1f �.i �'pCY1" �� LIMITS � _, �° — --•'�.. GENERALLIABILITY �� EACH OCCURRENCE S 1, OOO,, OOO �' ...�.° D�MAGE �'�i �ei�'r`�u .. . � ..�� lOO �...00O X COMMERCIAL GENERAL LIABILITY PRFMISFC !Fa occurcencei„ � 9/1/2014 9/1/2015 w erson) � S 5. 000 A }i XCU Included � OCCUR Y 7t �. PP 2056599 07 �M,ED EXP (Any one P �., , ..� �� ERSONAL & ADV INJURY S 1 000 000 X contractuai Liabil�ity GENERALACCRECA7E S 2,000,000 .. .,, �.. C"`kw��?µ'q„ h�.m�a�q'�'�'7;';;�,�,'��"-;: LIMIT APPLIES PER: UCTS - COMP/OP AGG $ 2� OOO � PRQD OOO� aur �� ct��a�l�a�s ir��s � 1.000. 000� �n��irv }C ��r�. OMOBILE LIABILITY . . . . F � �� tl � '� .� 9,1'�u41"C' . I X ANY AUTO Y Y RY (Per person} $ � B �' ALLOWNED SCHEDULED A 2056597 06 9/1/2014 9/1/2015 BODILYINJU � � ��IRY(Peraccident) � B D ..�..._.._.. AUTOS ..�..�... AUTOS _. .....,�..,� .. .,� ...... X HIRED AUTOS � X � AU�TOSWNED Lp..�+m��;ad�:uqG9 ��`I�'"F. .... ... $ , . � Underinsured motorisl BI single $ 500 . OOa � X UMBRELLA LIAB �� X OCCUR EACH OCCURRENCE S 1 O, OOO�, �OOO � ......�. ,,, 4.,8.AIh�1rs�-h4Ai�Y� �..m.� ,,.... ..,� ....,.. _$ ,_,a.,..,�_ . ..�„�! .. ... a f1FIlESX ARFTFRITIf1Nfi �10,00 Y Y'� UP-11R14276-14-NF 9I1/2014 9/1/2015 AGGREGATE $ lO, OOO OO ��CERIMEMBER EXCLU � .,, A WORKERS COMPENSATION X WC S7ATU OTH EMPLOYERS� LIABILITY mm TlIDV I IA�IT. , F17 ____ ��. PROPRIETOR/PARTNER/FXECUTIVE �� E.LEACHACCIDENT $ 1 OOO.00O OFFI DED7 �� N � p` �� (Mandatory in NHj °� �� C 2056602 06 9/1/2014 9/1/2015 - EA EMPLOYEE $ 1 OOQ � 000 � �� , ____......_ Y � .. .. ... ....�„ . w.....,. ..�........ �... . ..��. E L DISEASE POLICY LIMIT� $ ...... ,,,� 000 �. � OPERATIONS below � �QQ.. �... . p�$QRIP710N OF, , ., limit of Insurance 100 � 000 D Installation Floater �663-61-30 WCE 1/14/2014 ,°L/14/2015 peductible 5,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES ��AHach ACORD 107, Additfonal Remarks Schedule, ff more space �le requlred) Project: Emily Fowler Library, 502 Oakland St., Denton, TX 76201 'Additional insured in favor of City of Denton, its officials, agents, employees and volunteers and the Architect/Engineers applies to all policies except workers compensation if required by written contract. 'General liability additional insured includes ongoing and completed operations if required by written. Waiver of subrogation in favor of City of Denton applies to all policies if required by written contract. All policies include blanket 30 days notice of cancellation if required by written contract. CEI�7`��1�A�i'E City of Denton 869 S Woodrow Denton, TX 76205 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 �- �--.,�:.� :�^ � -„ ,.,�'"�"�'"�;.�"�`-.,� Tracy Tucker/JUDY � ��"�" � ACORD 25 (2010/05) O 1988-2010 ACORD CORPORATION. All rights reserved. INSOZSl9f11flflfil f11 Thc A(:(1R11 namc anrl Innn �rn rnnicfarurl m��lrc nf A(:(1RIl THIS ENDORSEMENT CHANG�3 THE POLICY. PLEASE READ IT CAREFULLY. TEXAS � CONTRACTOR'S BLANKET ADDITI�NAL 1NSURED ENDORSEMENT This endorsement modifies insurance provided under the fo(lowing: COMMERCIAL GENERAL LIABILI7Y C�VERAGE FORM Policy Number Agency Number Policy Effective�Date CPP 2056599 07 0775275--15 09/O1/2014 ...�.�.._.__ Polfcy Expiration Date Date Account Number 09/O1/2015 09/O1/2014 CBS M chan i al, Inc. Agency � Issuing Company� � Kf,K,,,��T,anµriaea� irP��T=�('� �TiirkPr Aavnr tri, Amex'isure II18 CO � • � _ � � 1 �.�... � CBS Roofing Services (A d3vision of CBS Mechanical, Inc.) 7. a. SECTION il - WHO IS AN INSURED is amended to add as an insured any person or organization: Whom you are required to add as an additional insured on this policy under a written contract or wr�ten agreemerrt relating to your business. b. The written contract or wriftert agreement must: (1) Require additional insured status for a time period during the term of this policy; and (2) Be executed prior to the "bodily injury", "property damage", or "persona! and advertising injury" leading to a claim under this policy. c. If, however: (1) "Your work" began under a letter of intent or work order; and (2} The letter of intent or work order led to a written contract or written agreement within 30 days of beginning such woric ;and (3) Your customer's customary contracts require persons or organizations to be named as additional insureds; we will provide additional insured status as specified in this endorsement. However, if you have entered irito a construction contract subject to Subchapter C of Chapter 151 of Subtitle C of 7itle 2 of the Texas Insurance Cade with the additiortal insured, the insurance afforded to such person(s) or organization(s) only applies to the extent permitted by Subchapter C of Chapter 151 of Subtitfe C of Title 2 of the Texas Insurance Code. 2. SECTION II - WHO IS AN INSURED is amended to add the following: If the additianal insured is; a. An individual, their spouse is also an additional insured. b. A partnership or joint venture, members, partners, and their spouses are also additiona! insureds. c. A limited liability company, members and managers are also additional insureds. d. An organization other than a; (1) Partnership; {2) Joint venture;or Includes copyrighted material of Insurance Services Office, Inc. CG 70 85 09 13 Page 1 of 3 (3) Limited liability company; executive officers and directors of the organization are also additional insureds. Stockholders are also additional insureds, but only with respect to thei� liability as stockholders. e. A trust, trustees are also insureds, but only with respect to their duEies as trustees. 3. i"he insurance provided under this endorsement is limited as follows: a. 7hat person or organization is an additional insured only with respect to liabiliiy arising out of: (1) Premises you: (a) Own; (b) Rent; (c) Lease; or {dj Occupy, or (2) Ongoing operations pertormed by you or on your behalf. If, however, the written contract or written agreement also requires completed operations coverage, we will also provide completed operations coverage for that addibonal insured. b. Prernises, as respects paragraph 3,a.(1} above, inctude common or public areas about such premises if so required in the written contract or written agreement. c. Additional insured status provided under paragr�phs 3.a.(1){b} or 3.a.(1)(c) above does not extend beyond the end of a premises iease or rental agreement. d. Ongoing operations, as respects paragraph 3.a (2} above, does not apply to "bodily injury' or "property damage" occurring after: (1) All work to be performed by you or on your behalf for the additional insured(s) at the site of the covered operations is complete including related materials, parts or equipment (other than service, maintenance or repairs); or (2) That portion of "your work° out of which the injury or damage arises is put to its intended use by any person or organization other than. another contractor working •for a principal as a part of the same project. � e. The limits of insurance that apply to the additional insured are #he least of those specified in the; (1) Wr'itten contrect; (2) WritEen agreement; or (3} Declarations of this policy. The limits of insurance are inclusive of and not in addition to the limits of insurance shown in the Declarations. The insurance provided to the additional insured does not apply to "bodily injury", "property damage", or "personal and advertising injury" arising out of an architect's, engineer's, or surveyo�'s rendering of, or failure to render, any professional servicgs, including but not limited to: (1 j The preparing, approving, or faifing to prepare or approve: {a) Maps; (b) Drawings; (c} Opinions; jd) Reports; (e) Surveys; fncludes copyrighted material of Insurance Services Office, Inc. CG 70 85 09 13 Page 2 of 3 (fl Change orders; {g) Design specifications; and (2) Supervisory, inspection, or engineering services. g. 3ECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, paragraph 4. Other Insurance is deleted and replaced with the following: 4. Other Insurance. Caverage provided by this endorsement is excess over any other valid and collectible insurance available to the additional insured whether: a. Primary; b. Excess; c. Contingent; or d. On any other basis; unless the written contract or written agreement requires this insurance be primary. In that case, this insurance will be primary without contribution from such other insurance available to the additionaf insured. h. If the written contract or written agreement as outlined above requires additional insured status by use of CG 201011 85, then the terms of that endorsement, shown below, are incorporated into this endorsement, to the extent such terms do not restrict coverage otherwise provided by this endorsement: ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endo�sement modifies insurance provided under the following: COMMERCIA� GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: Blanket Where Required by Written Contract or Agreement that the terms of CG 2010 11 85 apply. (If no entry appears above, information required to cflmplete this endorsement will be shown in the DeclaraEions as applicable to this endorsement.) WHO iS AIV INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. Copyright, Insurance Services C)ff'�ce, Inc., 1984 CG 201011 85 i. If the written contract or written agreement as outlined above requires additional insured status by use of an Insurartcs Seroices Office (ISO) endorsement, then the coverage provided under this CG 70 85 endorsement does not apply. Additional insured status is fimited to that provided by the ISO endo�sement. Includes copyrighted material of Insurance Services O�ce, Inc. CG 70 85 09 13 Page 3 of 3 COMMERCIAL GENERAL LIABILITY CG 20 Q1 4413 THIS ENDORSEMENT CHANGES THE POLICY. Pl.EASE READ IT CAREFULLY. PRIMARYAND NONCONTRIBUTORY- OTHER INSURANCE CONDITI�N This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART The following is added to the Other Insurance Condition and supersedes any provision to the contrary: Primary And Noncontributory Insurance This insurance is primary to and will not seek corrtribution from any other insurance available to an additional insured under your policy provided that: (1j The additional insured is a Named Insured under such other insurance; and (2) 'Ya�r �a�v� ��r�� ir°� aw�kir7g i�r � �r�k+r��t �r ��r��nea�k th� th%;� ins�r�w�c� w�u�d �� prirr��ry ��r� u��ul� ra�t s�� vn�r�buti!�� fr�arn �rry �ther i��a��n�� rrr�il��al� ta t1�� additional insured. CG 20 01 0413 � Insurance Services Office, Inc., 2d12 Page 1 of 1 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS CONTRACTOR'S GENERAL LIABfLITY EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the foliowing: COMMERCIAL GEiVERAL LIABILITY COVERAGE FORM Under SECTION I- COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, paragraph 2. EXCLUSIONS, provisions 1. through 6. of this endorsement amend the policy as Uoilows: 1. LIQUOR LIABILITY Exclusion c. Llquor Liability is deleted. 2. NONOWNED WA7ERCRAFT Exclusion g. Aircraft, Auto or Watercraft, subparagraPh (2) is deleted and replaced with the following: (2) A watercraft you do not own that is: (a) Less than 51 feet long; and (b) Not being used to caRy persons or property for a charge. 3. PREMISES ALIENATED A. Exclusion j. Damage to Property, subparagraph (2) is deleted. B. The following paragraph is deleted ftorn Exclusion j. Damage to Property; Paragraph (2) of this exclusion does not apply if the p�emises are "your woric" and were never occupied, renfed or held for rental by you. 4. PROPERTY dAMAGE LIABILITY - ELEVATORS AND 51DETRACK AGREEMENTS A. Exclusion j. Damage to Property, paragraphs {3), (4�, and (6) do not apply to the use of elevators. B. Exclusion k. Damage to Your Product does not apply to: 1. The use of elevators; or 2. Liability assumed under a sidetrack agreement. 5. PROPERTY DAMAGE LIABILITY - BORROWED EQUIPMENT A. Exclusion j. Damage to Property, paragraph (4) does not apply to "property damage" to borrowed equipment while at a jobsite and not being used to perForrn operations. B. With respect to any one borrowed equipment item, provision S.A. above daes not apply to "property damage" that exceeds $25,000 per occurrence or $25,�00 annual aggregate. 6. PRODUC7 RECALL EXPENSE A. Exclusion n. Recall of Products, Work or Impaired Property does not apply to "product recall expenses" that you incur for the "covered recall" of "your product". This exception fo the exclusion does not apply to "product recall expenses" resulting from: 1. Failure of any products to accomplish their intended purpose; 2. Breach of warranties of fitness, quality, durability or performance; 3. Loss of customer approval or any cost incurred to regain customer approval; 4. Redistribution or replacement of "your product°, which has been recalled, by like products or substitutes; 5. Caprice or whirn of the insured; Includes copyrighted material of Insurance Services Offioe, Inc. CG 70 63 Q7 12 Page 1 of 9 6. A condition likely to cause loss, about which any insured knew or had reason to know at tE�e inception of this insurance; 7. Asbestos, including loss, damage or clean up resulting from asbestos or asbestos containing materials; 8. Recall of "your product(s)" that have no known or suspected defect solely because a known or suspected detect in anothe� of "your product(s)" has been found. B. Under SECTION Ill - LIMITS OF INSURANCE, paragraph 3. is replaced in its entirety as follows and paragraph 8. is added: 3. The Products-Completed Operations Aggregate Limit is the most we will pay for the sum of: a. Damages under COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY because of "bodily injury" and "property damage" included in the "products-completed operations hazard" and b. "Product recall expenses". 8. Subject to par�qraph 5. above, $25,000 is the most we will pay for all "product recall e�enses" arising out of the same defect or deficiency. ihe insurance afforded by reason of provisions 1, through 6. of this endorsement is excess over any valid and collectible insurance {including any deductible) available to the insured whether primary, excess or contingent, and SECTI�N N., paragraph 4. Other Insurance is changed accordingly. 7. BLANKET CONTRACTUAL LIABILITY — RAILROADS When a written contract or written agreement requires Contractual Liability - Railroads, the definition of "insured contracY' in Section V- Definitions is replaced by the following with respect to operations performed for, or affecting, a railroad: e. "Insured Contract" means: a. A ��rrai��t fr�� ie�s� � ��rr�is��. ��er, tha� �rrt��rn, +�6 th� �ar�t�� r � �� f ��ni��s th�! �n��rn,�ifV� ��,Y P��r�r� ar �ar��ni��tic�r� for ��rp�� ry �r� ta pr�rrais�s +��md� �r�t�d �� r tem�a�ars�� c��i�� by y�u r;�it�a ��sa�i�l�n of th� �iww�t��' i� r�a�t an ""rr�swar�V ��r�rtlr'��#'"; b. A sidetrack agreement; c. Any easement or license agreement; d. An obfigation, as required by ordinance, to indemnify a municipality, except in connection with woric for a municipality; e. An elevator maintenance agreement; f. �'hro�� p�st �� ,�ny +�th�� ntr��,� �rr �gr�m�r�t p�r�.�i�ri�� t� ya��ar bus�rro�ss (k��u'dren+� �� in��m�i��ki�r� t�f � rr��ic�p��i�y im c,�r��i�r� writh� vwr�rk ��f�rr�r�;d ��r' ��rt��ic�pa�ity) �,rnd�� w��h y�rr� ��sr�r�'r� �h�� ar� li�[�iVit,� �9' ��n�th�r ��rt� 4�a �� ar ""�rt�d�N� ir�p��r�r �� <��' d��"� �f7 � ��11� ��"Sd?C4 �bR" �71��t"Ii,�$�1i9�Y. ��?f� �4��I$� ftl�r�l�� N1�'iJC�I�� "Y�� VM4�i!�d� �7� II'T'M�{��'3� �'�/ ��'i�d" I� the absence of any contract or agreement: Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a} Preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; ar (b) Giving directions or instructions, or failing to give them; {2) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in Paragraph (7) above and supenrisory, inspection, architectural or engineering activities. 8. CONTRACT'IIAL LIABiLITY - PERSONAL AND ADVER7ISING INJURY Includes copyrighted material of lnsurance Servicgs Office, Inc. Page 2 of 9 CG 70 63 07 12 Under SECTION 1- COVERAGE B., paragraph 2. Exclusions, paragraph e. Contractual Liability is deleted. 9. SUPPLEMENTARY PAYMENTS Under SECTION I- SUPPLEMENTARY PAYMENTS - COVERAGES A AND B, paragraph 1.b. is deieted and replaced with the following: 1, b. Up to $2,500 for cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds. 10. BRQADENED WHO IS AN INSURED SECTION II - WHO IS AN INSURED is deleted and replaced with the following: 1. If you are designaEed in Ehe Declarations as: a. An individual, you and your spouse are insureds, but only with respect ta the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are aiso insureds, but only with respect to the conduct of your business. Your managers are insur�eds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insuned. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. Paragraphs (1)(a), (7)(b) and (1)(c) above do not apply to your "employees" who are: (i) Managers; (li) Superoisors; (iiij Directors; or (Iv) Officers; with respect to °bodily injury" to a co-"emplayee°. 2. Each of the following is also an insured: a. Your 'tiolunteer woiicers" only while perforrrmi�� uk�� r�l�t�� 4� ��r� ��rn�i�urt �rf yc��r �+�sin�s�, �ar your "employees," other than either your "��cukuv� �rif��r��" �o� ,ya� �r� �ir� �a��e�� +��►�� x�� partnership, joint venture or limited liabiiity ��m��ny� �a� y�aur` �'r�n��rs �i� �r�u �r� � E'�rnit�� li�}��Ni1� companY), but only for acts within the scop� �af �h��r +�rr�pl�yrr��at �ay �!�u �rr w�roqe p�rf'�a�rrrin,g ��t�� refate� to the conduct of your business. Ha+��`, m�an� ca�'t�� °"��plca�!�e�s`" �ar "°��a�u�wt+��r'vu'��'k��" are insured for; (1) "Bodily injury" or "personal ancl advertising injury": (a) Ta you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), to a co-"employee" while in the c�urse of his ar her employment or performing duties relafed to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co"employee" or volunteer woricer as a conse�uence of paragraph (1 Ha) above; (c) For which there is any obligation to share damages with or repay someone efse who must pay damages because of the injury described in paragraphs {1)(a) or (b) above; or (d} Arising out of his or her provid9ng or failing to provide professional health care services except as provided in Provision 11. of this endorsement. Includes copyrighted material of Insurance Services Offoe, Ine. CG 70 83 07 12 Page 3 of 9 (2) "Properry damage" to property: (a) Owned, occupied or used by; (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees," "volunteer workers", any parEner or member (if you are a partnership or joint venture}, or any member (if you are a limited liability company). b. Any person (other than your "employee" or "volunteer worke�'), or any organization while acting as your real estate manager. c. Any person or organization having proper temporary custody of your property if you die, but only; (7 ) With respeci to liabitiry arising out of the maintenance or use of that property; and (2) Untii your legal representative has been appointed. d. Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this Coverage Form, e. Your subsidiaries if: (1) They are legally incorporated entities; and (2) You own more than 50°k of the voting stock in such subsidiaries as of the effective date of this policy. If such subsidiaries are not shown in the Declarations, you must report them to us within 180 days of the inception of your original policy. f. (1} A�y �t��n t�r �r��r�i��fi�n, a��a�r ��r,�r� �r� �r�h�'te�t, �n�ur�� ca� �urw+�yr��, r�c��all��d �a� Ca� nt��rt� a� ��r ad�r'��w��l i�n��ur��S inr� �""�c�r'� ��r��r�t'", Pett�r �f i�k�rat �r w��!rk �r��`� Nc�vw�w�r, ��rcN� �3�CSf7hN1, �7i" �H"��f11��p��4 �hr�N4 �1� �I� QC�4�f�'��3f1�� I'��LN!'�C� G�N��]i'YM�,iV 1"�� CY�V�3P"�� C�t�l��'� I�JUN"�� ,M�P��i'��' ��IiTI��,'" �11Cd, rr��?'�71�� C�� hf@�il'�1'r'l� 4�7,��1��;� �F'1�1f1?� �tJ� d�� "J�71��" "U�"Ctii�£'" NJ�d�� L'�r�� "wor9c contracY', let#er of intent or work order. (2) We will provide additional insured coverage to such person or organization only: (a) far a period of 30 days after the effective date of the applicable "work contracY', letter of intent or worlc order; or (b) until the end of the pdicy term in effect at the inception of the applicable "work contract", letter of intent or work order; whichever is earlier. (3) Coverage provided under this paragraph f, is excess over any other valid and collectible insurance available to the additional insured whether primary, excess, contingent, or on any other basis unless the'�vork confract°, letter of intent or work order requires this insurance be primary, in which case this insurance will be primary without corrtribution from such other insurance available to the additional insured. {4) This paragraph f. does not apply if form CG 70 85, Texas Contractors Blanket Additional Insured Endorsement, is attached to the policy. g. Any person or organ¢ation to whom you are obligated by virtue of a written cflntract to provide insurance such as is afforded by this policy, but only with respect to liability arising out of the maintenance or use of that part of any premises leased to you, including common or public areas about such premises if so required in the contract. However, no such person or organization is an insured with respect to: (1) Any "occurrence" that takes place after you cease to occupy those premises; or (2) Structural alterations, new construction or demolition operations pertormed by or on behalf of such person or organization. Includes copyrighted material of Insurance Services Office, Inc. Page 4 of 9 CG 70 63 0712 h. Any state or political subdivision but only as respects legal liability incurred by the atate or political subdivision solely because it has issued a permit with respect to operations performed by you or on your behaff. However, no state or political subdivision is an insured with respect to: (1) "Bodily injury", "property damage", "personal and advertising injury" arising out of operations performed for the state or municipality; or {2j "Bodily injury" or "property damage" included within the "products-completed operations hazard," i. Any person or organization who is the lessor af equip�ra��r�� d t� y�u� t� �rha�r� y�cs� �r� +a��d by virtue of a written contact to provide insura�� u�� A� ��`��d �� t�i� p�Nic�� but a�rn�Y "�� respect to their liability arising out of the main��r��u��, �ap��r !�r �� rf �c�� q�i�ar�u�r�� y�w�r au° a subcontractor on your behalf with your perr�iss��r �� un��` �c��ar ��ap�:�rmisi��n. �9c�uu'��a�r� �� Y�� have entered into a construction contract subj��t t�a �ub�hr��r��r �� !�h,��t�� 1 a� sa� �a��attl�� G s�f "idC1� 2 of the Texas Insurance Code with the additi�r��l ins�ur��q th� irr��ur��c� �id�i�rd�d �r� s�ach p�rsa�(�� or organizat+on(s) onty applies to the extent �rrr�i��cN ��r ��h�p��r �� h�aprt�� 1�1 �f ��t�tN� � of Title 2 of the Texas Insurance Code. IVo such person or organization, however, is an insured with respect to any "occurrence" that takes place aiter the equipmerrt lease expires. j. Any architect, engineer, or surveyor engaged by you but only with respect to liability arising out of your premises or "your work." However, if yo�i have entered into a construction contract subject to Subchapter C of Chapter 151 of Subtitle C of Title 2 of the Texas Insurance Code with the additional insured, the insurance afforded to such person only applies to the extent pemiitted by Subchapter C of the Chapter 151 of Subtitle C of Tifle 2 of the Texas Insurance Code. No architect, engineer, or surveyor, however, is an insured with respect to "bodily injury; "'property damage," or "personal and advertising� injury" arising out of the rendering of or the failure to render any professional services by or for you, including: (1) The preparing, approving, or faiiing to prepare or approve maps, drawings, opinions, repoRs, suroeys, change orders, designs or specifications; or (2) Supervisory, inspection, or engineering services. This paragraph j. does not apply if form CG 70 85, Texas Contractors Blanket Additional Insured Endorsement, is attached to the policy: k. Any manager, owner, lessor, mortgagee, assignee or receiver� of premises, including iand leased to you, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises or land leased to you. However, no such person or orc,�anization is an insured with respect to: (1) Any "occurrence" that takes place after you cease to occupy that premises, or cease to lease the land; or {2) Structural alteration, new constnaction or demolition operations performed by or on behalf of that person or organization. 3. Any organization you newly acquire or form, other than a partnership, joint venture or limited liabiiity company and over which you maintain ownership or majority interest, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the end of the poficy period; b. Coverage A does not apply to "bodily injury" or "property damage" that occurred before you acquired or formed the organization; c. Coverage B does not spply to "personal and advertising injury" arising out of an offense committed before you acquired or formed the organizat�on. d. Coverage A does not apply to "product recall expense" arising out of any withdrawal or recall that occurred before you acquired or formed the organization. Includes copyrighted material of Insurance Services Office, Inc. CG70630712 Page5of9 4. Any person or organization (referred to below as vendor) with whom you agreed, because of a written contract or agreement to provide insurance is an insured, but only with respect to "bodily injury" or "property damage" arising out of "your products" that are distributed or sold in the regular course of the vendor's business. However, no such person or organization is an insured with respect to: a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement. b. Any express warranty unauthorized by you; c. Any physical or chemical change in "your product" made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container, e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of "your products"; f. Demonstration, installation, servicing or repair operations, except such operations perfoRned at the vendors premises in connection with the sale of the "your product"; g. °Your products" which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor. h. "Bodily injury" or "property damage° arising out of the soie negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (7 } The exceptions contained in subparagraphs d. or f.; or (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. This insurance does not apply to any insured persan or organization from which you have acquired "your products", or any ingredient, part, or container, entering into, accompanying or containing "your products" No person or organization is an insured with respect to the conduct of any current or past partnership, joirrt venture or limited liability company ihat is not shown as a Named Insured in the Declarations. 11. INCIDENTAL MALPRACTICE LIABILITY As respects provision 10., SECTION 11— WHO IS AN INSUREO, paragraph 2.a.(1)(d} does not apply to any nurse, emergency medical technician or paramedic employed by you to provide medical or paramedical services, provided that you are not engaged in the business or occupation of providing such services, and your "ernployee" does not have any other insurance that would also cover claims arising under this provision, whether the other insurance is primary, excess; contingent or on any other basis. Under SEC7fON III - LIMITS OF INSURANCE, provisions 12. through 14. of this endorsement amend the policy as folfows: 12. AGGREGATE LIMITS PER PROJECT The General Aggregate Limit applies separately to each of your construction projects away from premises owned by or rented to you. 13. INCREASED MEDICAL PAYMENTS LIMI7S AND REPORTING PERIOD A. The requi�ement under S�CTION I— CQVERAGE C MEDICAL PAYMENTS that expenses be incurred and reported to us within one year of the date of the accident is changed to three years. B. SECTION III - LIMITS OF INSURANCE, paragraph 7., the Medical Expense Limit, is subject to all the terms of SECTION III — LIMITS OF IMSURANCE and is the greater of: Includes copyrighted material of Insurance Services Office, Inc. Page 6 of 9 CG 70 63 07 12 1. $10,000; or 2. The amount shown in the Declarations for Medical Expense Limit. C. This provision 13. does not apply if COVERAGE C MEDICAL PAYMENTS is excluded either by the provisions of the Coverage Form or by endorsement. 14. DAMAGE 1"O PREMISES RENTED TO YOU — SPECIFIC PERILS A. The word fire is changed to "specific perils" where it appears in: 1. The iast paragraph of SECTION I— COVHRAGE A, paragraph 2. Exclusions; 2. SECTION IV, paragraph 4.b. Excess Insurance. B. 7he Limits of Insurance shown in the Declarations will apply to all damage proximately caused by the same event, whether such damage results from a"specific peril" or any c�mbination of "specific perils." C. 7he Damage To Premises Rented To You Limit described in SECTION III - LIMITS OF INSURANCE, paragraph 6., is replaced by a new limit, which is the greater of: 1. $1,OOO,Q00; or 2. The amount shown in the Declarations for Damage To Premises Rented To You Limit. D. This provision 14. does not apply if the Darnage To Premises Rented To You Limit of SECTION I- COVERAGE A is excluded either by the provisions of the Coverage Form or by endorsement. Under SECTI�N IV - COMMERCIAL GENERAL LIABILITY CONDITION3, pravisions 15. through 17. of this endorsement amend the policy as follows: � 1b. KNOWLEDGE OF OCCURRENCE � Under 2. Dutles In The Event Of Occurrence, Offense, Claim, Or Suit, paragraph a. is deleted and replaced and paragraphs e. and f. are added as follows: a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense, regardless of the amount, which may result in a claim. Knowledge of an "accurrence" ar an offense by yaur "employee(s)" shall not,. in itself, constitute knowledge to you unless one of your partners, members, "executive officers," dire�tors, or martagers has knowledge of the "occurrence" or offense. To the extent possible, notice should include: (1) How, when and where the "occurrencs" or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense. e. If you report an "occurrence' to your wortcers compensation carrier that devefops into a liability claim for which coverage is provided by the Coverage Form, failure to report such an "occurrence" to us at the time of the "occurrence" shall not be deemed a violation of paragraphs a., b., and c. above. However, you shall give written notice of this "occurrence" to us as soon you become aware that this "occurrence° may be a liability claim rather than a workers compensation claiin. f. You must see to it that the following are done in the event of an actual or anticipated "covered necall° that may result in "product recall expense": (7) Give us prompt notice of any discovery or notification that "your product° must be withdrawn or recalled. Include a description of "your product" and the reason for the withdrawal or recall; (2) Cease any further release, shipment, consignment or any other method of distribution of like or similar products unti! it has been determined that all such products are free from defects that could be a cause of loss under the insurance. 76. UNINiENTIONAL FAILURE TO DI3CLOSE HAZARDS Paragraph 6. Representations is deleted and replaced with the following: 6. Representations By accepting this policy, you agree: Includes copyrighted material of Insurance Se�vices Office, Inc. CG 70 63 07 12 Page 7 of 9 a. The statements in the Declarations are accurate and complete; b. Those statements are based upon representations you made to us; and c. We have issued this policy in reliance upon your representations. We will not deny coverage �r�d�r ih�� r�v�r�g� p�rk if y�u �un�rrt�rrti�w��l�� f�ill �a di��M�� all hazards existing as of the inception �lat� �� thl� p�li�y+. "��a rnusk r�p��k tr� u� �r�� I�r��rle�g� �� n error or omission in the description �rf �ny pr�r�i�� err c��r��rr�n� in��rodc�d tc� �� av�r�c� kry #��a Coverage Form as soon as practicabl� ��r a�s da��ov�ry. �cau��a�„ ��i� pr�visi�r� �-a�� r�� i��' our right to collect additional premium or exercise our right of cancellation or nonrenewal. 17. TRANSFER OF RIGHTS {BLANKET WAIVER OF SUBROGATION) Paragraph 8. Transfer of Rights Of Recovery Against Others To Us is deleted and replaced with the following: 8. If the insured has rights to recover all or part of any payment we have made under this Coverage Form, those righfs are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suiY' or transfer those rights to us and help us enforce them. However, if the insured has waived rights to recover through a written contract, or if'your work" was commenced under a letter of intent or work order, subject to a sub'sequent reduction to writing with customers whose customary contracts require a waiver, we waive any right of recovery we may have under this Coverage Fonn. 18. EXiENDED NOTICE OF CANCELLATION AND NONRENEWAL Paragraph 2.b. of A. Cancellation of the COMMON POLICY CONDITIONS is deleted and replaced with the following: b. 60 days before the effective date of the cancellation if we cancel for any other reason. Under SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, Paragraph 9. When We Do Not Renew is deleted and replaced with the following: 9. When We Do Not Renew a. We may elect not to renew this policy except, that under the provisions of the Texas Insuranc� Code, we may not refuse to renew this policy solely because the policyhofder is an elected official. b. If we elect not to renew this policy, we may do so by mailing or delivering to the first Named Insured, at the last mailing address known to us, written notice of nonrenewal, stating the reason for nonrenewaf, at least 60 days before the expiration date. If notice is mailed or delivered less than 60 days before the expiration date, this policy will remain in effect until the 61 st day after the date on which the notice is mailed or delivered. Earned premium for any period of coverage that extends beyond the expiration date will be computed pro rata based on the prsvious years premium. c. If notice is mailed, proof of mailing will be su�fficient proof of notice. d. The transfer of a policyholder between admitted companies within the same insurance group is not considered a refusal to renew. 19. MOBILE EQUIPMENT REDEFITlED Under SECTION V- DEFINIT'IONS, paragraph 12. "Mobile equipmenY', paragraph f. (1) does not apply to self- propelled vehicles of less than 1,000 pounds gross vehicle weight that are not designed for highway use. 20. DEFINITIONS SECTIOM V— DEFINITIONS, paragraph 4. "Coverage terri#ory" is replaced by the following definition: "Coverage territory" means anywhere in the world with respect to iiability arising out of "bodily injury," "property damage," or °personal and advertising injury.," including "personal and advertising injur�' offenses that take place through the Intemet or similar electronic means of communication provided #he insured's responsibility to pay damages is determined in a settlemeni to which we agree or in a"suit" on the merits, in the United States of America (including its territories and possessions}, Puerto Rico and Canada. Includes copyrighted material of Insurance Services Office, Inc. Page B of 9 CG 70 63 07 12 2. SECTION V— DEFINITIONS is amended by the addition of the following deiinitions: "Covered recall" means a recall made necessary because you or a govemment body has determined that a known or suspected defect, deficiency, inadequacy, or dangerous condition in "your product° has resulted or will result in "bodily injur�' or "property damage". "Product Recall expenses" mean only reasonable and necessary extra costs, which result from or are related to the recall or withdrawal of "your product" for: a. Telephone and telegraphic communication, radio or television announcements, computer time and newspaper advertising; b. Stationery, envelopes, production of announcements and postage or facsimiles; c. Remuneration paid to regular employees for necessary oveRime or aufhorized travel expense; d. Temporary hiring by you or by agents designated by you of persons, other than your regular employees, to perform necessary tasks; e. Rental of necessary additional warehouse or storage space; f. Packaging of or transportation or shipping of defective products to the location you designate; and g. Disposal of °your products° that cannot be reused. Disposal e�enses do not include: (1 } Expenses that exceed the original cost of the materials incurred to manufacture or process such product; and (2) Expenses that exceed the cost of normal trash discarding or disposal, except as are necessary to avoid `bodily injury° or "property damage". "Specific Perifs" means fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire exdnguishing equipment; weight of snow, ice or sleet; or "water damage." "Water damage" means accidental discharge or leakage of water or steam as the direct result of the breaking or cradcing of any part of a system or appliance containing water or steam. "Work contracY' means a written agreement between you and one or more parties for work to be perFormed by you or on your behalf. Includes copyrighted material of Insurance Services Office, Inc. CG 70 63 0712 Page 9 of 9 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ I7 CAREFULLY. EARLIER NOTICE �F CANCELLATI�N PROVIDEQ BY US Number of Days Notice .� 30 For any statutorily permitted reason otherthan nonpayment of premlum, the number of days required for notice of cancellation is Increased to the number of days shown in the Schedule above. If this policy is cancelled by us we will send the Named Insured and any party IisUed in the following schedule notice of cancellation based on the number of days notice shown above. SCHEDULE Name of Person ar Organization The Name of Person or Organization Is any person or nrganlzatlon holding a certlflcate of insurance issued for you, provided the certificate: 1. ReFers to this policy; 2. States that notice of: a. Cancellatlon; b. IVonrenswal; or c. Materlal chanqe reducing or restricting coverage; wiA be provided to that person or organization; 3. Is in effect at the time of the: a. Cancellatlon; b. Nonrenewal; or c. Material change reducing or restrlcting coverage; and a. Is on file at your agent or broke�'s office for this policy. Maiiing Addresa The Mailing Address is the addness shown for that person or organ¢ation in that certificate of insuranoe. I L 70 45 05 07 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS ADVANTAGE G4MMERCIAL �IUTOM4BILE BR�AD FORM ENDORSEMENT Thls endorsement modifies insurance provided underthe BUSINESSAUTO COVERAGEFORM With respect to coverage provided bythls endorsement, the provisions of the Coverage Form apply unless madifled bythe endorsement. The premlum forihis endorsement is$ 5375. o0 7. BROAD FORM INSURED SECTION 11- LIABILIiY COVERAGE, A.1. Who Is An Insured Is amended bythe addition of the following: d. Anyorganization you newlyacqulre or form, other than a partnership, joint venture or Ilmited liabllity company, and over which you malMain ownership or a majority lnterest, will qualify as a Named Insured, However, (1) Coverape under this provision Is afforded only unSll the end ofthe policy perfod; (2) Coverage does not applyto "accider�ts° or "loss" that occurred before you acqulred or formed the organlzation; and (3) Coverage does not applyto an organlzatfon that is an "insured" underanyother policy or would be an "Insured" but for Itsterminatfon or the exhausting of Its limli of Insurance, e. Any"employee° of yaurs us(ng: (1) A covered "auto" you do not own, hire or borrow, or a cavered "auto" not owned by the "employee" or a member of his or her household, whlle pertorming duties r+elated to the oonduct of your buslness or your personal affairs; or (2) An "auto" hired nr rented under a contractor agreemerrt In that "employee's" name, wlth your permission, whfle performing dutles related to the conduct of your business. Howaver, your "employee" does not quallfy as an insured under this paragraph (2) while using a covet+ed "auta" rented from you or from any member of the "employee's° household. f. Yourmembers, ifyou are a limlted ifabilitycompany, whlle using a wvered "auto" you do not own, hire or borrow and whlle performing dutles related to the conduct of your buslness or your personal affalrs. g. Any person or organization with whom you agree In a wrltten contract, written agreement or permit, ta provide insurance such as fs afforded underthis policy, but only wfth respect ta your coveroed "autos". Thls provision does not apply: (1) Unless the wrltten contract or agreemerrt Is executed or the pertnit is issued prior to the "bodily InJuryr' or "property damage"; (2) To any persan or organizatlon Included as an Insured by an endorsement or in the Declarations; or (3) To any lessor of "autos" unless: (8) The lease agreement requlres you to provide direct primary insurance forthe lessor; (b) The "aum" fs leased wlthouta driver; and Includes copyrighted material of Insurance Services Office, Inc. CA 71181109 Page 1 of 5 (C) The lease had not explred, Leased "autos" cavered underthis provision will be considered covered "autos" you own and not covered "autos" you hire, h. Any legally incorporated organization or subsldlary in which you awn more than 50% of the voting stack on the effective date of this endarsement, Thfs provision does not applyto "bodily injur�° or "property damage" for whlch an "Insured° is also an Insured underanyotherautomobfle pollcyorwould.bean insured undersuchapolicy, butforit� termination or the exhaustion of its Ifmlts of Insurance, unless such policywas wrltten io apply speclflcally in excess of this policy. 2. COYERAGEEXTENSIONS-SUPPLEMENTARYPAYMENTS Under $ection II - LIABILITY COVERAGE, A2.a. Supplementary Payments, paragrephs (2) and (4) are deleted and replaced asfollows; (2) Up to $2,500 forthe cost of ball bands (including bonds for nelated traffic law vlolations) required because of an "accldent" we cover. We do not have to furnish these bonds, (4) All reasonabls expenses incurred by the "insured" at our request, including actual loss of earnings up to $500 a day because of tfine off from work, 3. AMENDED FELLOW EMPLOYEE FJCCLUSION Under SECTI�N 11- LIABILITY COVERAGE., B. EXCLU510NS, paragraph 5. FelloW EmplOyee is deleted and replaced bythe following; 5. Feliow Employee "Bod I ly inj uty" to: a. Anyfelbw "employee" of the "insured" arising ou1 of and In the course of the fellow "employee's" employment or while performing duties related to the condud of your business, However, thls excluslon does not apply to your "employees° that are officers, managers, supervisots or above, Coverage is exoess over any ather collectible Insurance. b. The spouse, child, pansnt, brother or sister of that fellow "employee" as a wnsequence of paragraph a. above, 4. HIRED AUTO PHYSICAL DAMAGE COVERAGE AND L05S OF US� EXPENSE A. Under SECT'ION III - PHYSICAI. DAMAGE COVERAGE, A. COVERAGE, the following is added: If any of your owned covered "autos" are covered for Physical Damage, we will provide Physical Damage coverage to "autos" that you or your'employees" hlre or borrow, underyour name or the "employee's° narne, for 1he purpose of doing your work. We will provide coverage equal to the broadest physical damage coverage applicable to any covered "auto" shown in the Declarations, ltem Three, Schedule of Covered Autos You Own, or on any endorsements amending thfs schedule. B. Under SECTION III - PHYSlCAL DAMAGE COVERAGE, A.4. Covcrage Ex#enslons. paragraph b. Loss Of Us� Experlses is deleted and replaced w�th the following: b. Loss Of Use Expenses For Hired Auto Physical Damage, we will pay expenses for which an °insured" becomes legally responslble to payfor loss of use of a vehicle nented or hlred without a driver, under a wrltten rentai oorrtracEor agreement. We will payfor loss of use expenses if caused by; (1) Other than colllsion, only ifthe Declaratlons it�dicate that Comprehensive Coverage Is provfded for any covered "auto"; Includescopyrighted material of Insurance Services Office, Inc. P�ge � of 5 CA 71181109 (2) Speclfled Causes of Loss, only If the Declaratlons Indicate that Specified Causes Of Loss Coverage is provided forany covered "auto'; or (3) Collfsion, only ifthe Declaratlons Indicatethat GolUslon Coverage is provided for anycovered "auto", However,lhe mostwewill payfor ariyexpenses for lass of use is $30 per day, to a maximum of $2,000. C. UnderSECiION IV— BUSINESSAUTO CONDITIONS, B. General Conditions, 5. Other Insurance, paragraph b. is replaced bythe following: b. For Hlred Aufo Physical Damage, the following are deemed to be covered "autos" you own: 1. Any covered "auto" you lease, hire, rent or b�mow; and 2. Anycovered "auto" hlred or rented byyour °employees" undera contract In that indlvidual "employee's" name, with your permission, whlle performing dutles r�elated to the condud of your busl ness. However, any"auto" that is leased; hlred, rented or borrowed wlth a driver Gs not a covered "auto", nor is any "auto" you hire from anyof your "employees°, partne� (if you are a partnership), members (if you are a 1lmfted liabilltycompany), or members of thelr households. 5. LOAN OR LEASE GAP COVERAGE Under SECTION III— PHYSICAL DAMAGE COVERAGE, A. COVERAGE, the following is added: If a covered "auto" Is owned or leased and if we provide Physical Damage Coverage on it, we will pay, in the event of a covered total "loss", any unpafd amount due on the lease or loan for a covered "auto°, less; (a) The amount pald underthe Physical Damage Section of the policy; and: �b) �Y� (1} Overdue lease or loan payments Inclu�ng penalties, interest or othercharges resulting from overdue payments at ihe tlme of the "Inss"; (2) Financial penalties fmposed under a lease forexcessive use, abnormal wear and tear o� high mlleage; ' (3) Costs for extended warranties, Credit Life Insurance, HeaNh, Accldent or Disability fnsurance purchased with ihe loan or lease; (4) Securitydsposits not refunded bya lessor, and (5) Carry-over balances irom prevlous loans or leases. 6. RENTAL REIMBURSEMENT Under SECTION lil - PHYSICAL DAMAGECOVERAGE, AA. Coverage Extensions, paragraph a. Transportatian Expenses is delefed and replaced bythe following: a. Transpqrtation Expenses (1) We will pay up to $75 per dayto a maximum of $2,000 for transportation expense Incurred by you because of covered "loss". We will pay only for those covered "autos" for which you carry Collislon Coverage or either Comprehensive Coverage or Speclfied Causes of Loss Coverage, We will pay fortransportation expenses incurred during the period beginning 24 hours afterthe covered'lass" and endin�, regardless of the policy`s explration, when the cflvered'auto" is retumed to use or we pay for Its "loss°. This coverage is in addition to the othetwlse applicable coverage you have on a covered "auto", No deductibles apply to this wverage. Includes copyrighted material of Insurance Services Office, Inc. CA 71 181109 Page 3 of 5 {2) Thls coverage does not apply whlle there is a spare or reserve "auto" available to you for your operation. 7. AIRBAGCOVERAGE UnderSECTIbN III - PHYSICAL DAMAGE, B. EXCLUSIONS, paragraph 3. isdeleted and replaced bythe following; 3. We will not pay for"loss" caused by or resulting irom any of the fallowlne unless caused by other "loss° that is covered bythls Insurance; (1) Wea� and tear, freezing, mechanical or eledrical breakdown. Hawever, this exclusion does not fnclude the discharge of an airbag. (2) Blowouts, punctures or ather road damage to tlres. 8. GLASSREPAIR—WANEROFDEDUCTIBLE Section III — PIiY51CAL DAMAGE COVERAGE, D. Deductible Is amended to add the following: No deductlble applies to glass damage ifthe glass is repalred watherthan replaced. 9. COLLISIUN COVERAGE— WANEROF DEDUCTIBLE Under Section III - PHYSICAL DAMAGE COVERAGE, D. DeduCtible is amended to add the following: When there �s a loss to your covered "auto" insured for Colllsion Coverage, no deductfble will apply ifthe loss wa5 caused by a colllslo� with another "auto" insured by us, ,, 10. KNOWLEDGE OF ACCIDENT Under SECTION IV - BUSINESS AUTO CONDITIONS, A. Loss Conditions, 2, Duties In 7he Event Of ACCiderlt, Claim, Suit Or LOSS, paragraph e. is deleted and replaced bythe following: a. You must see to itthatwe are notified as soon as practicable oF an "accldent", claim, "suit" or "loss". Knowledge of an "acGdent", clalm, "suft" or "foss° byyour °employees° shall not, in itself, constitute knowle�e to you unless one of your partners, executivs offlr.ers, dlrectors, managers, or members (If you are a Ilmited Ilabllitycompany) has knowledge of the'accldent", clairn, "suit" or "loss". Notice should incl ude: (7) How, wheh and where the "accident" or "loss" occurred; (2) The "insured's" name and address; and (3) To the extent possible, the names and addresses of any injured persons and witnesses. 11. TRANSFEROF RIGHTS (BLANKETWAIVEROF SUBROGATION) UnderSECTION IV -BUSINESSAUTO CONDITIONS, A. Loss Conditions paragraph 5. Transfer Of Rights Of ReCOVery AgalrlSt Other�s To US is deleted •and replaced bythe following: 5. 7ransfer Of Rights OF Recovery Against Others To Us If any person or organlzation to or for whom we make payment underthis Coverage �orm has rlghts to recover damages from another, those rights are transferrsd to us, That person or orgsnization must do everythfng necessary to secure our rights and must do nathing after "accident" or "loss" to lmpalr them, However, +f the "insured" has waived rights ta recoverthrough a written corrtract, or ff your work was commenced under a letter of Irrterrt or work arder, subject to a subsequent reductfon In writing wlth customers whose customary confracts require a waiver, we walve any right of recoverywe may have underthls Coverage Form. Includescopy�ighted material of Insurance ServicesOffiee, Inc, Page4of5 � CA71781109 12. UNIN7ENTIONAL FAILURE TO DISCl.OSE HAZARD5 Under SECTION IV - BUSINESS AUTO CONDITIONS , B. General Conditions , paragraph 2. Concealment, Misrepresentation Or Fraud is amended by the addition of the following: We will not deny coverage under thls Coverage Form if you unintentionally fall to disalose all hazards existing as of the Inceptfon date of thls policy. You must report to us any knowledge of an error or omission in your represer�tatlons as soon as practicable after Its dlscovery. This provislon does not affect our right to collect additlonal premium or exerclse our rlght of cancellatlon or non-renewal. 13. BLANKE7 COVERAGE FOR CERTAIN OPERATIONS IN CONNECTION WITH RAILROADS . When requlred by written contract or wrlHen agreement, the definitlon of "insured contract" is amended as follows; -- The exception contained in paragraph H.3. relating to construction or demolitian operations on or withln 50 feef of a railroad; and — Paragraph H.a. are deleted wlth respect to the use of a covered "auto" in operatlons for, or affecting, a railroad. Includes copyrighted materfal of Insu�ance Services Office, Inc. CA 71 1819 09 Page 5 of 5 POLICY NUMBER: CA 2056597 06 COMAAERCIAL AUTO CA 716510 Q7 THIS ENDORSEMENT CHANGES 7HE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED - PRIMARY COVERAGE This endorsement modiffes insurance provlded under ihe BUS I NESS AUTO COVERAGE FORM The provisions of the Coverage Form apply unless changed by this endorsemerit. This endorsement identifles person(s) or organlzatlon(s) who are "insured" underthe Who Is An Insured Provision of the Coverage Form, This endorsement changes the policy on the inception date of the policy, unless another date (s shown below. ��._�� .........................�_........_.�_. ��._... EndorsementEffective: 09/O1/2014 Counterslgned By: Named Insured: �Y�Y.��,. m_ �. .n�.�.�..�. �� CBS Mechanica�, Inc. CSS Roofing Services (A Division of CBS �, �� Mechanical, Inc.) K&K Landscape Services LLC � (Authorized Representative) (No enlry may appear above, If so, informatlon to complete this endorsement is in the Declarations.) Section 11— Llability Coverage, A. Coverage, 1. Who Is An Insured Is amended to add: Any Person or Organlzation with whom you have an "Insured cqnlrad" whfch requires: i. that Person or OrganlzatEon to be added as an "insuredp under this pollcy, and ii. this policy to be primary and non-contributory to any llke Insurance avaflable to the Person or Organizatfon, Each such person or organlzation Is an "fnsured" for Llablllty Coverage, They are an "insured" only ff that person or organizatlon is an "Insured° under In SEC710N II ofthe Coverage Form. The contract between the Named Insured and the person or organlzation is an "insured contracY'. Includes copyrighted materia! of the Insurance Services Offlce, Inc,, wlth Its permissionx CA 71 fi5 10 07 Insurance Servlces Office., 1998. Page 1 of1 TH1S ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY, EARLIER NOTIGE OF CANCELLATIQN PROVIDED BY US Numher of Days Nottce �.,�.�,.��.._,..._.� For any statu4orily permitted reason otherthan nonpayment of premlum, the number of days required for notice of cancellation is increased bo the numberof days shown in the Schedule above. IF this policy is cancslled by us we will send the Narned Insured and any party listed in the tvlfowing schedule natice of cancellation based on the number of days natice shown above. SCHEDULE Name of Person or Organization The Name of Parson or Organlzatlon is any person or organ(zatlon holding a certificate of insurance issued for you, provided the certificate: 1. Refers to this policy; 2. States that notice of. a. Cancelfation; b. Nonrenewal; or c. Material change reducing or restricting coverage; will be provided to that person or organization; 3. Is in effect at the time of the: a. Cancellation; b. Nonrenewal; or c. Material change reducing or restricting coverage; and 4. Is on file at your agent or broker's office for this policy. Mailing Address The Mailing Addr�ess is the address shown forthat person or organization in that certificate of insurance. I L 70 45 05 07 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 42 03 44 A (Ed. 1-00) TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement applfes only to the insurance provided by th� policy because Texas is shown in Item 3.A. of the Informatlon Page, VV� h�rr� Ct�� r��t t� re�t�v�� w�� p�j�nn�r�t� ��°�rr� �t�y�ne liable f�� arr Nn�ur� r..�v�� I�y� �hk� p��l�,+, "�i+� e�rlll not �c��r�� ar righ� �c��l��t t�� :r�r� �r ��i�tfa� �ramed fn tf�� h�d�N�, k�t�t t�� w��v�r �ppf�e� r��ly wlth r�� t,� ��ihG�r I��ur�+ �rl��rr� r��at �r� ia�e c��s�c�t"r�rr� describe�' in t�e� �ch�duG� +w�� '�a�a �r� r�c��ir�� by a uvrltten contract to obtain this v�rafver from us. Thls endorsement shall not operate directly or indirectly to beneflt anyone not named in the Schedule. The premium for this endorsement is shown in the Schedule. Schedule 1. ( )Specific Walver Name of person or organfzation (XjBlanket Waiver Any person or organlzation for whom the Named Insured has agreed by wMtten contract to furnish this waiver. 2. Operations: 3. Premlum The premium charge for thls ettdorsement shall be o.o2a percent of the premium developed on payroll in connection with work performed for the above person(s) or organization(s) arlsing out of the operations descrlbed. 4. Advance Premium $3,891 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The infortnaUon below is requlred only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 09/O1/2014 paicy No. WC 2056602 06 Endorsement No. Insured CBS Mechanical, Ine. Preml;�uu� ' CBS Roofing Services (A Division of CBS Mechanical, »� � K&� Landscape Services LLC � "'"� � � �� Insurance ompany p,�erisure Ins Go Counterslgned by �,,,,,,,,,,__�.�. � ._.�._��..mm.:m .. �. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EARLIER NOTICE OF CANCELLATION PRaVIDED BY US Number af Days Notice 30 For any statutorily permitted reason otherthan nonpaymerrt of premium, the number of days required for notice of canoellation is Increased to the number of days shown !n the Schedule above. If this policy is cencelled by us we will send the Mamsd Insured and any party listed in the following schedule natice of car�cellation based on the number af days notioe shown above. SCHEDULE Name of Person or Organization The IVame of Person or Organlzatlon �s any person or organization holding a certlficate of lnsurance issued for you, provided the oe�tificats: 1. Refers to this policy; 2. States that notice of: a, Cancellation; b. Nonrenewal; or c. Materlal change reducing or restricting coverage; will be provided to that person or organ ization; 3. Is in efiect at the time of the: a. Cancelfation; b. Nonrenewal; or c. Material change reducing or restrlctEng coverage; and 4. Is on file at your agent ar brokers office for this policy. Mailing Address The Mailing Address is the address shown forthat person or organization in that certiTicate of Insuranoe. IL 70 45 05 07