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2016-095ORDINANCE NO. ZO16-O9S AN ORDINANCE RATIFYING THE EXPENDITURE OF FUNDS BY THE CITY MANAGER FOR THE EMERGENCY REPLACEMENT OF THE MCKENNA PARK WATER STORAGE TANK ROOF AND IN ACCORDANCE WITH PROVISIONS OF SECTION 252.022 OF THE LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 6041-AWARDED TO PITTSBURG TANK AND TOWER COMPANY, INC. IN THE NOT-TO-EXCEED AMOUNT OF $345,658.25). WHEREAS, state law and ordinance require that certain contracts requiring an expenditure or payment by the City in an amount exceeding $50,000 be by competitive bids, except in the case of public calamity where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or in case of unforeseen damage to public property, machinery or equipment or where the procurement is necessary to preserve or protect the public health or safety of the city's residents under Section 252 of the Local Government Code; and WHEREAS, the City Manager has recommended to the City Council that it is necessary to purchase goods or services due to the following emergency conditions outlined in the memorandum attached hereto, incorporated herein by reference; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby determines that there is a public calamity that makes it necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or to provide for unforeseen damage to public property, machinery or equipment, or to preserve or protect the public health or safety of the city's residents and by reason thereof, the following emergency purchases of materials, equipment, supplies or services, as described in the "Purchase Orders" referenced herein and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 6041 Pittsburg Tank and Tower Company, Inc. $345,658.25 SECTION 2. Because of such emergency, the City Manager or designated employee is hereby authorized to purchase the materials, equipment, supplies or services as described in the Purchase Order on fle in the office of the Purchasing Agent, and to make payment therefore in the amounts therein stated, such emergency purchases being in accordance with the provisions of state law exempting such purchases by the City from the requirements of competitive bids. SECTION 3. 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 6041 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the "�" ,. day of ��„�„ _ „__, 2016. �� m __ �� __�" ee� _. ( E3��G`� ''�'� I°Tl"�, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY � BY: — - � �� , � � .�„ .. ��.�. �. 5 �I .:� ,�I'��'C��" 1=�I� �� "(� LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �� ,„�. �.��„�� , ..,_��,��„�. BY: � � ��~� �,.�,a � ��..�� _��'^� � � � �,�� ... ,�"�° � File #: �,��,,:�..�..�.. ��,�,� Declaration of an Emer enc Re uisition #; �� .�a�� . g Y �.�� , q _. �� -� �..�� __. iJ�� 1 ON Date: ��:�.-�.��...� V endor: �� [�� a � �� °:� � � � � �� m ��.A �� '�' �,� �` �� a�� w,. ...... . �....... �Construction Services t�� R place the McKenna Park Wa�� k��• Tower Roof Commodity/Service. Structure Estimated expenditure for the above commodity or service: $ �=��'��"�� '��`�� ,�, ��"�� ti��w� Initial all entries below that apply to the proposed purchase, under the Purchasing Procedures as passed by City Council. (More than one entry may apply.) 1. � Emergency situations, including procurements necessary to protect the public health or safety or in response to a public calamity; 2. � A procurement necessary because of unforeseen damage to public equipment, machinery, or other property; Brief Description/Justification for exception: The roof structure on the McKenna Park Water Tower is structurally unsound and requires immediate replacement. While preparing the tank for sandblasting and painting, it became apparent that the supporting structure for the roof was severely corroded to the point where some rafter members have fallen to the tank floor. Staff contracted the services of Tank Industry Consultants (TIC), an industry leading engineering firm in the inspection of steel water tanks, to perform an assessment of the tank roof and its supporting structure. TIC's inspection was completed on November 18, 2015 and it concluded that the roof and its supporting rafters and girders have extensive corrosion and are in need of replacement. Respectfully Submitted by, .�� w ��C � µ .�., ° �....��-�`��_ � �,w � ..� � ��i � �� Dept. Director Date l�.�v��°�a� by: �� , �� f-,-��I Is � ..�....��.ee�............_��w. Elton Brock Date Purchasing Manager ��ar�:awp��l by .�.� � � � � KK N �� w , �. �' „. �„ �" �.� � � .� ,�� '" f ! � � e �° ( k�, �a�•��, Campbell Date City Manager Reviewed By: _ ::�� _ ... m� �� ._� � � ��°�. Anita Burgess Date City Attorney This form must be attached to a purchase requisition if the expenditure is under $50,000. This form must be attached to a completed Agenda Information Sheet if the expenditure exceeds $50,000. � " § COUNTY Or 1)ENTON § CONT CT AGR�EMENT #6041 - BY AND BETW��N CITY OF DENTON, T�?�AS AND PITTSBUI�G TANK & TOW�R COMPANY INC. TI-IIS CONTRACT is made and entered into 11�� y and between Yittsbur� Tank & Tc��v�r Comnanv Inc..�a corporation, whose ��s� is C�r�e_ ��d�:c�a�t ��ccF I3��ci�r st.��. ��' �1��, hereinafter referred to as "Contractor," and the CI 1 Y Or� 1-7�Elv 1 ON, TEXAS, a Texas Municipal Corporation and I-Iome-Rule City, hereinafter referred to as "City," to be effective upon approval of the Denion City Council and the subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. WITI-1NESSETH: That for and in consideration of the payments, covenants and agreements contained herein, and under the conditions expressed in the bonds attached hereto, Contractor agrees with the Owner to commence and complete the performance of the work specified within tl�e agreeinent, in the amount of $345,658.25 and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOP� OF S�RVICES Contractor shall provide construction services in accordance with the specifications, requirements, terms, conditions, and agreements as incorporated herein for all purposes as "Exhibit A— Exhibit I". The Contract consists of this written a�reement and the following items which are attached hereto and incorporated herein by reference: (a) Contractor Quote for McKenna Park tank Roof Replacement - Pricing (Exhibit'LA") (b) Negotiated Scope of Work and 5ervices and Technieal Requirements, Drawings, Graphs, Charts, etc. (Exhibit "I3"); (Technical Specyfications and Drawings are available at the Office of the Purcliasing Manager and at httn://«�`��r��.citvofcieutou.COrilI(�CI]ilYt[]7CIlt5—SCC\�ices/departments-=�-n/matct-►nls- m�i�i�.<=erneni-�urc�it��in�-��1ct�-ibution-centcr-/bids and-nror�osals/carrent-bids- � �.�.�_ p�-oposals (c) Contractor Payments and Performance Milestones (1Cxhibit "C"); (d) City of I7enton General Conditions for Water and Wastewater Contraction Projects �'f"�XL 11� lI. 6671991 � L iiaJc ii > (e) Special Terms and Conditions (�xhibit 66�99)� (f) Payment and Performance Bonds (Exhibit 66T99)' r (g) Insurance Requirements and Documents from Contractor (Exhibit "G"}; (h) Contractor's Business Inf��i��1�t��a (1+ x.��i��rt 66H99); . (i) Coni7ici oi�Interest Quesii�rl��ax-� {]f��il�it "I°'); � (j) Certificate of Interested Parties Electronic Filing (Exhibrt "J"); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conilict 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 ihen to the contract docuinents in the sequential order in which ihey are listed above. These documents shall be referred to collectively as "Contract Documents." IN WITNESS WH�REOP, the parties of these presents have executed this agreement in the year and day first above wrrtten. : : � � �. � � �� .� .�.� �� -� _�� .,�a �� `�- _.� B x� .� `��. � _ _________ ____ AUTHORIZED SIGNATURE �� ,4 ,��,v=., NAME:. �.._.._.... ��. TITL�: � � ". t�,� ..��-, �. �,.-0. � Z�.°� � -- � �... � - � �� . � �...�. -�.�..N... �--- PHONE NUMBER � =- � C� � . � � � r �,.� � �_ � .� E-M�1, aDDxEss aTTEST: n _ 1��. __..... � � .:- ._ CITY OF DENTON, TE S A Texas Municipal Corporation � �� y, � r �"�`� �'F�� , ,..w_ �,.�a�._._.e B . �` �-� � ( r�?� 7R�� =� C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECR�TARY BY� ��°� �. � �L. �:�.� s. �� _ __ � l'�'i�� f:I k AS rf C� LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _ �:... BY• . _uw... . � .�� _�� '""°,. �� -��. File 6041 Page 2 of 139 File 6041 Page 3 of 139 _ ,J � � . � � ._ �,, ,� ° ^'«�"""..m. � Salcs Officc ('orpor:etc lic:tdquartcrs `"�.`' , 306 LaiUe Road Ilcndcrson, KY 42420 (270)831-G9G3 fax(270)831-6953 ddavishrw atcnnnk.com FFr3RL1ARY 12, 2016 City of Denton, Texas I Watcrtank I lacc Y.O. Box 913 Ilcndcnon, KY 42420 (270)82G-9000 Pax (270)R27-4417 N'\\ lV. WJICf�:lllk.l'nlll To: Mamun Yusuf, P.E, Senior Engineer Reference: McKenna Park Tank Roof Replaceuient 70' � 70' Welded Steel Standpipe Denton, Texas e�� ; .� � This is in response lo yaur above referenced inquiry. We are pleased to offer the following rse�rl�rt,crl pricing infonnation for your consideration: � • �' 1.) Fumish all engineering, labor, materials, equipment, and insurance necessary to remove the existin�; roof and support trusses and to design, furnish and install a new 3/8" self-supported dome roof ]ap welded on the top side only. No structure or bolted connections. Cxterior roof to anglc wSll bc �Ilet welded. 2.) All new materials to ASTM A36 carbon stecl. 3.) We include furnishing and installing a new rollcd riin angle if required. Joints of rim angle will be butt-welded. 4.) All scrap materials will became the praperty af Pittsburg Tank & Tower Co., Inc. C,C��I'I"T��'S1i's�C']�I"'�'X�1�1� ♦ Our price is based on Open Shop Non Prevailing Wage Labor. ♦ We do not include any shop or field coating. ♦ We do not include any fittings, piping, or accessories unless specifcally listed above ♦ Our price is based on the site being accessible by tractor-trailea- witl� no overhead or other obstructions and adequate i•oorn directly adjacent to the tank foundatians for storage of materials and equipment. ♦ Our price is based on being able to erect the dome on a level area immediately adjacent to the existing storage tank. ♦ Our price is based on standar•d•OSHA safety require�nents. • We have not provided for fulltime non-productive safety, rescue team, fire watch or other dedicated persannel. Any specisl safety [raining and/or site requirements will be at an additional cost. ♦ Our price is based on standards as set. forth by AWWA D100, We have not included for AISC, ISO, QP or any otlier certifications w�less otherwise stated in this praposal. We have not included for dedicated QC personnel such as NACC, CWI or otlier. File 6041 Page 4 of 139 ♦ We have nol included any special licenses, fees, permils or bonds. No t.ax included. If any are required, the cost will be added lo the quoted price. ♦ We do not include the handlin�; or disposal of any hazardous materials including bul not limi[ed to lead paint or asbestos. � Our prices are finn for 30 days fi•om the date of this proposal. TANK PRICING Design Cost � � ' '$.6,000:00 � �� Dismantle existing roof Rcplucc roof on 70' x 7U' Stanclpil�e Alternate price to seal weld the underside of the roof lap seams Alternate price if 6x6x1/2 is required instead of 3x3x1/2 angle Additfonal cost for Davis Bacon wage rates Deduct for painter to provide (5) roof vents, roof manway and roof hatch. Payment and Performance Bonds TOTAL 25% with the order 25% upon receipt of materials in our shop Balance upon completion TERMS SCHEDULE $65,000.00 $193,950.00 $26,928.00 �OyJLJ.00 $45,547.00 ($5,400.00) �Jy 100.6J $345,658.25 Drawings will be submitted 2-4 weeks after receipt of an order. (estimated start date 2-29-16) Field work can begin 6-] 0 weeks after receipt of approved drawings. (estimated start date 4-25-] 6) Field work will take 4— 6 weeks. (estitnated completion weathet• permitting 5-31-16) Thank you for the opportunity of offerinb this proposal. If you have any questions, or require any additiona] information please fee] free to call the undersigned af 27Q-831-6963. Respectfully submitted, Pittsburg Tank and Tower Co., Inc. Dennis Davis Regional Sales Manager cc: Rick DiZinno, Vice President Vicky Caudill, Sales File 6041 Page 5 of 139 �x��i �it � . . • , , , • . . � . . . � � � � � ��ic��. is i��c�.��e� i�� x��i�it � i�� e 1 . 1 1 : 1 . • ' ' ' _ File 6041 Page 6 of 139 Scope of Work The intent of tl�a:� Scope of Vs�'��r�: is to obt�sir� compl�t� �c��}str��.iion of i1�� work ic�era4i�ed r�vi�h the technical specific�tions as de[��ale°ci in the quc,at�:{s), and �i.i��tl�� c��tified wiil�in this cc�nt�-�ci. i�°l�� work for whicl� proposals are being solicited is described ir1 detail in the Technical Specifieations, and the Drawings of this Contract. The proposal subi��ission shall accurately describe tlie Proposer's undersianding of the objectives and scope of the requested construction and provide an outline of the process to complete tl7e requiremenis of the project. Special Notice and Additional Requirement(s): 1. s��i�iitionaI s�f�t;y preeauticai�� shall be i��s�itut�r:� by the �:��ar�c��c� cc��tr��c�a•, as the �rc��•�; ��vironnnent wai� be in an ��°e� where citiL�a�� a��# employe�.s zt�� l�e �a�•��ni, ��d work ��i`��y must be coordinated with the owner. 2. C`�r�i��a��crr s��11 r�r�icr��r ��a� �t��`c�rm the req�.��st��l ��•r�ices i�x c��n�li�z��e w�th ihe �i�llt��i�� C��i� f��• rc�a��ci��, tlze �t�.�.� �Qme roof of the �'Ic1��z�a�a 1'ark ��i�� 'l�an�. 'T��i� is a 2.[7 i��„ "i�}' high ground storage tank with 70' dia. We want to remove the existing roof and install a self supported steel dome roof File #6041, specifications, drawings, and requirements. 3. The L.c��t�•��t�r has cstix��ted ti�e �c��ap ��ti�r��l i'�•�rra thi� p�-�a;��t �d��1uc� �� ;'��,fl��.00. So t�-�e i�a��1 pricc a�"�r•caject amt��t i:� $3��,�5�.25 r�i�l� �;c��is°��tor ��ei�� it� ��5,�5�.�5 for dis�-�z�u�tt�ii�� removal and rei��i��a�ng the value c�f �t�� -�� i•�� t��is ��caj�.�t. The �ca�t�•a�ir�� ill be zye��ired to send a ec��y of the weight tiu��ts c�1� c�is��+s�.c3 rz��tc�4i�1� and of ��:�•�p ��lµz'��z�t� of where they have the scrap property picked up and properly disposed. File 6041 Page 7 of 139 .��X � lt �' � 1 � ` � ' � � ' File 6041 Page 12 of 139 1. INVOICI:S AND PAYMENT PROCESSING: I'�a��a�]c��t ��ce��in� The City review, inspection, and processing procedures for invoices ordinarily require thiriy (30) days afier 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 ihe opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day pi•ocessing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. I��•��t ��[ �'t�t• ��t�t��e�►is: 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: w��mm�i�t�t��r�]�a�i�� .� cc��7�. ir�r�caic��: Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 � McKinney St, Deriton, TX, 76201-4299 with a copy to the attention of Herman Lawson, City of Denton Facilities Management, 869 South Woodrow, Denton, TX 76205. The copy may also be emailed to Mr. Herman Lawson at i��mr��.l��v�c�� i# �s�fi��n�e�r�.c��a. 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 projecis should normally be presented for payment within the first five days of the month, and submitted on the AIA Pay Application Form. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (I') 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. ,, �� ; � � ,. �� A. Upon presentation of valid payment requests invoices, which should be within the first week of each month, the Owner shall make partial payments to the Contractor for construction accomplished during the preceding calendar month on the basis of completed construciion certified to by the Contractor and approved by the Owner and Architect/Engineer solely for the purposes of payment: Provided, however, that such approval shall not be deemed approval of the workmanship or materials. Only ninety-five percent (95%) of each payment request approved during the construction of the project shall be paid by the Owner to the Contractor prior to completion of the project. �Upon the approval by the� Owner of the Contractor s Final Invoice� � • �� for Payment" showing the total cost of the construction performed, the Owner shall make payment to the Contractor of all amounts to which the Contractor shall be entitled there under which shall not have been paid: Provided, however, that such final payment shall be made not later than thirty (30) days after the date of completion of construction of the project, as specified in the Final Invoice for Payment, unless withheld because of the fault of the Contractor. File 6041 Page 13 of 139 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 s11a11 not exceed the maximurn contract price for ihe construciion of the project as set forth in the contract, unless such excess shall have been approved by the Owner, and Owner's Representative, and in wriiing 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. . � 1 ' ' 1 � ' • � Release of Liens and Certificate of Contractor shall be accomplished in accordance with Article 5.3 of the Standard Terms and Conditions. ' • � 1 : i " • � The Contractor shall pay each materialman, and each subcontractor, if any, not later than five (5) days after receipt of any payment from the Owner, the a�nount thereof allowed the Contractor for and on account of materials furnished or construction performed by each materialman or each subcontractor. G�.� D7►�l'I DI I] I DT►`� A. Completion of Contractor's Default If default shall be made by the Coniractor 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 oi• Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to be corrected i'orthwith. 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 ihe 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 eonstruction of the project, any materials, tools, supplies, appliances, and plant belonging to the Contractor or any of its subcontractors, which rnay be situated at the site of the project. The Owner in such contingency may exercise any rights, claims or demands which the Contractor inay have agai�lst ihird 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. File 6041 Page 14 of 139 � X��x lt • � 1 ' . ! � .�� File 6041 Page 15 of 139 � 1 ! 1 � ' • � 1 � � ' • � � -- ..._. This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document sliould be adapted to tl�e particular circumstances ofthe contemplated Project and the Controlling Law. � , � � ! � � • ` � ,,` �: • � , � • � • Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and lssued and Published Jointly By . ry �,F��f��r,�l.�+��f�� ' ' - J�'��t�� l�n��r�� _ � ; . . At9PHle.1F(�e}I°.\'i:li IfA {t6:1\'IInI.iP:C8ic1l'S`�BI.♦ .. � �,�;,C��. ' � gf]r�JB.�Qr{dy.0li.c +��t�R�.'��"Fd+��,�='�f'��B�P'n'�'�'�.�:� PROFESSIONAL ENGINEIERS IN PRIVATE PRACTICE a practice division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS AMERICAN COUNCIL OF ENGINEERING COMPANiES AMERICAN SOCIETY OF CiVIL GNG]NEERS This document has been approved and endorsed by �aNr,,� �j �� /r'�� r, �,� �. _ �� k� �-�:d � ..:�a- �� .., •:��nw'�' The Associated Geaeral Contractors of America � r. ExhibitD_�___,�.� .�_.�.��__�._.._._.. a�.�ce. m._...._ File 6041 Page 16 of 139 ]Cxhib'rt D C1TY OF DI:N7l'ON G�N�RAL CONDITIONS FOR WAT�R PROJECT CONSTRUCTION Construction Specifications Institute Copyright 02002 National Society of Professional �nginecrs 1420 King Street, Alexandria, VA �2314 American Council of Cngineering Companies 1015 ISth Street, N.W., Washington, DC 20005 American Society of Civil Engineers ]801 Alexander 13e11 Drive, Reston, VA 20191-4400 These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and Contractor Nos. C-520 or C-525 (20.02 Editions). Their provisions are interrelated and a change in one may necessitate a change in ihe other. Comments concerning their usage are contained in the �JCDC Construction Documents, General and Instructions (No. C-001) (2002 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (No. C-800) (2002 Edition). These General Conditions have been amended by the City of Denton, for specif�c utiIization with the government entity's water and wastewater construction contracts, effective 8.1.13 Exhibit D - �� _�� File 6041 Page 17 of 139 Exhibit D CITY OI+ ll�NTON G�N�RAL CONllITIONS FOR WATER PROJ�CT CONSTRUCTION TABLE OF CONTENTS � ARTICLE I- DEFINITIONS AND TGRMINOLOGY .............................................................................................................1 ��... 1.01 1?�� daac�f i��r�rar.s ......... ......... ..�..,,....... .. .,...�... .. ......... .,.... ,....,...,.. ....,.... . ., .,..... ......6„ ......,.... 1 1.02 Tc��rartrcrCca��; ... ......... ......... ............... . .. ..........a.... ... .....,...... ....�..,. ........� .�,,..... ..,._.,.................3 � _.a__.... ARTICLE 2 - PRELIM[NARY MATTERS ..... .... ............. . .... .............. .. .. ........... ... .... ......... ......... ........._.4 ........ -- - „_ 2.01 i�€�tr'��x �'t�nra��s u�ac� F�}+caf��tr�'e t�,��I��.s`rtr-ua�� :... ... ... ................ ..�..... . .. ....... ...,..... ......... .,......, .�..,......4 � .__ 2.02 C'�ri��,�° �a I�n��rrtrtatls� ... ......... ......... ........ . ............ .. ........................ . ......... ....... .. ......... n..........4 2.03 �.'f�ira�r�e:��:c�r�� r� �Crr��r��:t T��cRs: TJ�[ice lo Proceed ...........................................................................................4 2.04 Sr�x��Jr,�� t1�� 7�'cra 1� ...................... ............................................................................................................................4 2.05 l��r r� ,Sfrst ti�a�f � c�ra�tt rfc°t�cxrr,.........._ .... ..........�...... . .....,.... . ..,.... , ..,,..... .. ...... .,.:...., _........ .. . �. ,..,.. 4 �� y _� . ,�. �..�.�.'`c�acc ............................ ... . ...�,.,. ....,,... _,... .�.......... . ......,.. ...,...,, �.......,..,4 2.06 t r cc°crPa,rlr��r�°trc�ra C t,A� t r 2. d7 1�rtFacal.� c•c5c�t,lnrrct� �a�.5c ltc��tri��s ............................................................................................................................... 4 11i�°� IC L� 3 - �"i:i�d`�`1�,�1�;"i �7�t��N`l �i 1N_i I �17`, �I't�l �I��D;�G, i�.Ull�� .. ... .................................................................5 3.01 Inlent ........................................................................................................................................................................ 5 3.02 1i� ea•err€.t�,SCcar�der��fs ................................................................................................................................................5 _ �.w..�...�,. 3.03 ��r�cr� diir� r�r�r� Ie�csr�i�tirr � f�,s, 7.sc'F"L �c�r,� .................................................................................................................. 5 3.04 .rlrrrc:airli�r�,urac�#5a�a,�1€�3rtr:rtPirrtF C4r�rrdr•e,�:t L�cac�t�rtrc��ts . ......... ........... ....... ........ ... . . ..... ......... ....�...,,...6 3.05 1�'�er.rc ��1�r�c��tt��pt�ts� ......................................... ...................................................................................................6 - ---- - - .__ � 3.06 Eleclronic Da[a ......... ......,... �.,.. .:,. ............. ..,...... .... . ..... ..,...,...„,.. .. . ......... ..,...... .....,... .....,.,.... 6 ARTICLE 4- AVAILABILITY OF i f�,NT3� �;1JTi�1J�l��C1 x.��il�,,l�"[i7'�I[:l"�L. �t)�li717�C��iS.Nt��111�'il�(7L9� ENVIRONMENTAL CONDI`]"l��I`J� [�i'��'1�1 N,�wT` 1?�1�"I'� .............. .. ... ... ... ........ . ................ . . ...... ..................6 4.01 .�t t <rrt ��l�tlrt�ymt�l.canr�� .... . . . ...... ... ........ ............................................................................................................. 6 _.__ r .,. 4.62 5�r1�4r��'trc r rrrrc� 1'�'r} �ic.cr{ C"�arac��tica�rs ,� .. ......... .. ....... ......... .._..... . ..................., ,. .....,... .......,. .„... ..,....7 - _ m .... 4.03 C�i,1'ir°ar��s Szrf�s�ar��rcc� ry�- I'1�+s�i�°ai C_'c�s�cl�t�r�rr.r ........ .... . . ........ .....„....,.... ... ....,...„ . ........ .,...,... ,..t.„.,....7 � __ , . _ _.._ .�. 4.04 Llrr�'��•��o�r�ar� �'rar altircF,s' ........................................................................................................................................... 8 4.05 d"icf�r-cr�c�� i'r��rat.� . . . .. ............................................................................................................................................8 4.06 Nazardvus Em�ii�onmenlal Condilion al Sile ....................................................................................•••.................... 8 ..- _ .�W_.�m.,..._ ARTICLE 5- BONDS AND INSURANCE ...............................................................................................................................9 5.01 . .i'e r�� sa,�€a�a�rr�`, .Pcr�c�r� ,i_�rx�t1 �d'�r�r �3�rnds ............................................................................................................... 9 5.02 Licensed Strrelies and lnsui•e�s . ......... ......... ......... ....... .......... .. ............�. .,... ....,... a....,.,. .......... i 0 � _... 5.03 t�ttft tecatt�� r� Irr.sur°rr�� ..................................................................................................................................... 10 J`_... _ ...I�.w 5.d4 C raratr•�� nr .t Ijicr#.��l�ly_ft7,}'trj°cxrrc•c ........................................................................................................................... i 0 5.05 �`��acr ',s� Li�r�ar% Jra��P`Id'iT77f„G ................................................................................................................................ � � 5.06 I�i`t�3�.'J'l�pr IfaStJl'C!l7Gt ....... ...................................................................................................................................... I I 5.0% ftFt7rt�<''.l" t��%li.S ........ ......... ......... ........ . . .. ...... .a....... ...... .. . .. ,...,,,...........,.. ...,..... ....._...... .......... I2 5.08 ,�� r�� rl;_c+�rr� �f � xJi�c�ti��r c:� i�rs�rr �rrrc c Proceeds ................. e' _�!1 .��...�u....�_��_M...._- ................................................................................... �2 S.Q9 s�ie�,c��1r�r�r,G ��1�rsra�3� u��tr'dr�.crrr�er�re��•_lJ��l,rc�rtFtra_It'e�al�xc=t . ....... ............................................................................. 12 �.10 i'rsa�tir�I_r1��6f �adir��} 3�:krtcs�=sPCc��;a�rrrfat t��' 1'��aJaec�.ul�F r�r�t.�r•c r ..,,.... ,..„.,.„ . ... ...... ......... ,...,.,.. ..,,.�.,...... . �... 13 ARTICL� 6- CONTRACTOR'S RESPONSIBILITIES .......................................................................................................... ➢ 3 .._ ..._._ � _ 6.01 .�rt,rr�t•�,^�.cir.]e� nrrr! 4�r�ac�i-t�alf er<1ra�rc.;�� .. .................................................................................................................... i 3 6.02 I r�1r�>r. �?�'r��•ki�� !°Iours . ..................................................................................................................................... 13 6.03 �Sa�r �e�c.s tlfa�li� rcrls� zz�r�# 1�`r�ta��tjae�rf ..... a ....... . ........ ...�...„......... . ........, .,...., , ...,.,... ...�,.. . .......... � 3 , � rv �.. m. � 6.04 i'r t�� r.,s� �ac lrc;�`Iz�lc ...... ..................................................................................................................:...................13 6.05 Subslrlules und O�-�rrr,�J� "', ................................................................................................................................ 14 -- 6.Q6 Cn�a�°c�r°rr��r,� eSrrl,rr r��r�'� e�r'�rrr s, .�Spt��,?!��_x��"...��e� �)ll��r:s ........ ....... ............ ...... _.,.....r. ..,..,.. ........, - .,,....,.. N 5 6.07 Palent Fees and Ro ay !lie.s ..................................................................................................................................... l6 6.08 Permils ...................................................... ..... ......... .. ........�. ...... e..... ,..,.........., ........, .,........ .,........ i6 -_._ 6.09 I�r.rsi�.� C1'8T�'J 1�L��`�;fFt�tJllYJY1S ............................................................................................................................................ � 6 6.10 Tuxe.s ......................................................................................................................................................................17 6. I 1 �:�•c� c� .;�'itr� c�ar<# C)tlac � r�r c ta� . . ....... ........... .. �.... ..... ..., ....,....,......,.... ..,.��. .. ....,.,.. , ....,,., ,.,.,...... t 7 - --- ----- - _ 6.12 Recor•d Docu�ltents ....... ......... ......... .......:.. .... ..... ......,.. .,.....,. . . ..,.... .......,. ......... .......,� ,....,..... i7 ..�_ �...., ..._,. _. F ._� �_� . .� _._�_ Exhibit D File 6041 Page 18 of 139 �xhibit D CITY Or DENTON GENERAL CONDITIONS FOR WAT�R PROJECT CONSTRiJCTION 6.13 Sa el �rra�f 3'a�rr;�r rtrc��a ................................................................... . ............... . ......... ......... .�.,..... ......... 17 6. ] 4 5r�€�� li'f,,�rr F sr:tt�rr��e ............................................................................... . ._ ...., ......... ...,..,...... ..... ......... ] 8 6.15 Haaa��d Co�r��arraicR'rfrr�r�r !'r��;��€�ra�� ................................................................................................................... 18 6.16 1 ��rc r°�=�:aaac ac s` .... ...... .. . ............. . ...... ..................................a ,., ..... ....,,... ........, ..,....., ........, .,....... 18 - .� .. . 6.17 5'iar�l:7iJ�u�,�a1�s;.sa.�`r�te�".�S��lcs .................................................................................................................................18 6.18 �'�arrtirr�ri�a�Clar:_ii'r�e J� ..........................................�. . , ...,.,,.. ...... . .. ....,.... . ......., ......... ....,..,_ ......... 19 6.19 C cr�rlr crc•t��a� ".s C;rracr �r1 13�crr_��r�ta}: crtarl t;zrcr� r{rrt�r. . �...,,..� ..... .... ........� ... ,..,..,,.. .......,�... .. ..._,.... .,.,._.,. 19 6.20 l�a�drraa�fa�CC7tliF�1J'f ........ . ..................... .........................................................................................•••................. � I 6.21 1��lc�c�lrr�rr r,��"1'� �r�,��ir��caleL7�s��7r Se��vices ..........................................................................................................20 �iT�T'1�'I�F? 'J - t�7`I'� 3.T`k� '4�1��.1� t17"_"� I Ii �3T� ....... .............................�. . ._,.......,..� ...,.... . .... ,,_....... ........ .........20 7.01 Rela[ed Work a1 Site .............................................................................................................................................. 20 - --- 7.02 C't�car°clitrt�tiv�� .... ..................................................................................................................................................21 7.Q3 1 c c=r�! l�c�lrrlatfr�,sPt��.e .......... ........ . ..... ._..,.,...�. .......,,.. ..,. ...,........ , ..•......_.. .. �..,,..,, ,........ .........21 � .��.�. . __- - ,��Tl�.`L�� - U'I�1�1 C�_�m�;['�,1'ONSIBILITIES ......................................................................................................................21 8.01 �.t+r�rr�a��raict��`�t�x�s tc1 Co�atrac[a• ............................................................................................................................. 21 _ __m..._ 8.02 1��1�c�iarer�t r�.��i»eer ......................................................................................................................................21 8.03 1�'zrr•r�islrl�rr�rr ... ......... ... ...... ......... ......... ....t.,..,.,... ... .,....�.... .....,..... ..... -......,.. ......... .,.......21 5.04 1' Y��iet� I�a�e� . . ........ ......... ... ...... .............. .......�..... .. . ...,........... ....,.... .......,. ....,.... ...,.....21 - � �� ... �_ 8.05 Lands qnd Easemen�.��' Ii!'1?Cll'i�,ti.�tlP7�I T 4';S15 . .........................................................................................••••.............. ZI 8.06 Insurance ............................................................................................................................................................... 21 8.07 C'1r�rra,�r£ �a-clrjs°:s ...........••• ........................................................................................................................................21 8.08 I�r��c'cttt�rrs°. li�.trs, rrrt�l��r•aa�^�1:a ........................................................................................................................21 8.09 i rt��ttcrtrs��r.s c��r t"'.��v�,rE�t�,s,1?c=sJ��rr�rfl�ilirirs ...............................................................................................................22 8.] 0 $Ja�u�i}c'l��tic€� f�a"u�crrr�'r��r.s � aatm�tt��r�tc��t�T C.r�aac�itrt�r? ................................................................................:..............22 8.] 1 %�i�f��ae°� ��!`�artrrt�.i�rl.�rr�trr�,�tz�e�ats' ........... ......................................................................................................22 ��rtt��i�.�;�.. rr��r�r��„� ��n�•�� ras��_��r��a ............................... ........., ........ ..t....... ..... ,....aa 4.01 t'laafra��r° "a i2t=t�r-�.tic�r�Jrxti�tc ..................................... . ............................................................................................22 9.02 Visits lo Sile ..........................................................................•••..............................................................................22 9.03 I'r°t�cr�� ,�i�1�r�,s��rrtrrti�.:r� ........................................................................................................................................... 22 � . m__ __�.... 9.04 Authorized Varialions in I�Vo��k ........:.....................................................................................................................22 9.05 f�et.•tt�tf; l�c�'�t tr�re l��r�r� ......................................................................................................................................22 9.06 �S�rcrt� J.?rr��a tp��s f�{�tx1�sY� Ci� �d�aa,f.rr��c� d't��ta�r:rr1.� .................................................................................................... 23 ._�. _' � �.�..� �." �[�rri1 J��-ir;c t�i'cxr•e� . ............ .. ......... .. .............. .. ........ ..... ..�...... ..... ...,...., ,..,.,..., 23 9.07 L��d�r°rr�rraratac�r�,s' �e 9.08 C3�c•�sC��f.a r��t �ice�t�t� r�t��r�ls cr' ��nratr��rc�d J3r?t�trr��rt� nr�€ir�c'c't �� fr�latfa`!�^ �� t�'r�t°k ... . ...... ...... . �.,�. ..r..... �...,..F«.23 �w ,� �.a�. 9.U9 ! iarritcrtirr��4� n�r C��rfac>2��. i..:��rllra�awi{�� cr��c� i�r�s�carar�i�ilil�� .... . .. ............. ._..,,......, . ......,,,.,.......... .,........23 t�1��1`1C.L�°. a{� CY}�I�t�iC,L� IN'151�}�� Wt)F�;��,�:LI�INiS ...........................................................................................................23 ] 0.01 ,�Er�tlac�t•i:�s�r� � �era��.s° ir� ��rc l�IFra�`� .........................................................................................................................23 10.02 f ltararrAlrr�r � c�I (:�.'l`tr,trr��:.� ar� 1Jrc ,%��r�r k ....................................................................................................................... 24 10.03 l�a��rrt��ft r�,('��r�r7�� fJr dc r,s• .... ......................................................................................................................... 24 1 0.04 f�4�CY�l fC`C7�FC7�1 �i,�.,:1�fi"i"�r ............................................................................................................................................. 24 ] 0.05 Cluims .................................................................................................................................................................... 24 ��_l'1C;I�.�� 1 1 , �`C��;1 (�1 .I,i 11�; V1�C}lt;� ti,.�1�ti[.<�1�I�,�'*iCi �.�..��il'1" �'1�'l�F� i�v'[�I�9{ ......... ......... . . ........... .. . .... .......... 25 1 � .� � � CJ�i f� 1d�i(�, �'�pfJ1"�i; ......... ..... ...._ ........ . ............. ...,.....,......... �.� ......<,.,....,. �. ., �.,..,.„,.,... .......a..., . ......,... .......... 2.5 _ � . 11.02 Allowances .............................................................................................................................................................26 1 I.03 Unil Price Wo�•k .............................................................................................................. ....................................... 2 ,�f�°7'"1� � T':.. i � �Hr�1�{�l� C}1 C C�1�I �'#2r��",�, �'��1GL-:; f`I�M�i�Gt; (7]. �`C71�;�C"IZt�C T_.1'l��rl� � .......... . ......... ......... .......... 27 12.01 � larrra r rr C."ca�ri'�-�c•r t�i•�c �' ...................... ............ . ..... ......... .. . ...�,..,..... . .....,., ... .�........... . _.. . - .........27 ......- _ . �"'. � _ _ 12.02 i Itr�e��<�_rj ( �e�r�t �rc t i'��rac..s ....,.. ,... . .. ....... ......., , ..........,.,.. ... ..,...... , .,..,... _ ...,..... ...,..,,. ..........27 - ... - 12.03 Delavs .. ............. .... ......... ......... ... ............. .. ............ .. ...........a . ......,.. ..... ........ .......�.28 -- ��- „AR't`lC,.l L;. t3 a`["1;��`f:� II,?'�$�_PT�`aI'E��T_1�7NS' [��7[�1�.�...�.7,1[�� itIW�7,��'i4i� t7i2 ,,+��i' I';'t?o!,(;l� �JF' I�I�f-P�,C';1"IV� W()�ie ....,.28 13.01 r�lcJdi�� :r !i� r��t:� .... ..... .......... ........ ........ . . ......r...,... ......... . .. . ......t ..... . ., .......... . ......,.. ....,. ....28 �- ,__ 13.02 Accees to Work . ..,...,,.� .... ..................a..... .. .....,, ,,. - .�...... .,....,,. ....,.,.. ......... .._...... ..,...... ..........28 ._� -- .. 13.03 I'cars° rrr�t�?�c�fr`r�r�.� ..............................................................................................................................................28 13.04 t�'ra��rt�crr=rr�sr 14'cz��f� ..................................................................................................................................................29 13.05 �'.3��rr�r- �i9c��r ��Ct��{a Fl�c ,ll�cc�rlr .....................................................................................................................................29 13,06 (� �r r c=�li�asr r�r• l�c�rr�r�� cal t? l�� tiuc !i'r�t k ...........................................................................................................29 Exh.__... �.�� a.,,�.�____ �ibit D File 6041 Page 19 of 139 Cxhibit D CIT�' OF DENTON GENEI2AL CONDITIONS FOR WAT�R PROJ�CT CONSTRUCTION 13.07 Cor�•eclion Pe��iod .............................................. .. .............. ... ...,.,,... ......,, .....,�.. .......,. ,,...e.. ...,,.... 29 -- !3 d_8 �ccc,tat�ar�ec: rr .T��pt�d€��e I��"f��•k . ............. ..... ......... ......... . ........ ..... .... ......... ......... .......... ..e......30 Iw3.�09 C)��rrcr��f��rrF��ct_l�c=.rr:risYr7 �i°rark_....„ ...... .. ......�..�............,,....,. . ,,..,..,..,..,... ..,,. .... , ., ..., .,, ........ .30 /�1��IC [ 1� 3� - P�k,YI��f�N'fim Sr7 C� C�[?1'wl [`F��C`7'�I� �iw?%7 �.t�i�lPl.i�ry it�t�l_.... ..... «.. ._. ._..�.,..�. ........�.�. .., .,,�... . .....,..30 14.01 ,�cl�r��;f�rtc e�{ ��`rrtrrc.s ................. � ............................ ............... ... ........ . . ..... .�.,,.. . .... ,......,. ..................... 14.02 !'rr��t'�.ss 1'cr��rar�dl�� .................................a.... . .. ............. ... . ....�...... ....... ......,..,.�..... . ,........ .........31 I4.03 �r�r3rrrrctr�� ".s� ��'`rrr�•cr�rl��„r�_Trflt� .. ........... ......... ...........t.. .,. . ............. . .,..,.... ........, ,.., ...... ,. .......32 ]4.04 �'r�l��ra�zl��rl�xlr�t�Frd�� .................... �... ... .......�....,. .. . .,.......,... .... �, ...� ��2 14.05 Partial Ulilization ............................................................................................................................. ..... .........33 ��..,M ]4.06 T`rPa�.rl i�r��?c;rtra�r .....................................................................................................................................................33 -- - _. ._. ] 4.07 �`�rrc�{ J'rrur3�a�rat ................................................... ............ . ................................................................................ 33 .�... ] 4.08 Ff�ttrl' Gcr�ra��le^1ir�r� I��>l�r ��' ............................................................................................ ......... ......... ......... 34 14.09 6� r�rt�� e �t,f"�'#r�ir�r.s ........................................................... . ............. . .. ........ . ......a... ........ ...,...,. ......... �� _,...� � �.r�� c:�,r� �� st��a:�s�c�r� �� rrc�r�rc,��;W� �i�r��vn�, ��r� .......................... ............. .............. .. ....... ......... 34 15.01 i7k�rx�r°_h�lcr r.�.�c��a� i��e�rh ....... ......... ......... ............. . ............ . ............. ............. . ........�, ... . ,..., �4 15.02 f1ti��tcrr• Jdlcr�' 7�ra��ri�,�r�r° [�arrr,sc .......... ........ .......�....,,.., . .....,,.. .. ...,......... ,.. ...,..,.. ......... .......... 3}� ] 5.03 f�r�+rae�r• h�crt9 7�� atr�art�"�;.T;��r Convenience ................................. ........................................................................ 35 15.04 �'t��rf„tar�c`tr�r• h�tr�� .Sl�r W��i�k or Te�•nrinale ............................................................................................................ 35 ;!�l�`�'I+�1�1�:�„�.��Wt�l aPIJ I L I�L��1�U � ICJ7V,. ............. ......... a...,.... .... ...,............................................................................35 16.01 h3��l,��t�cla �xrr� C'r•caccr�ul-r s ......... ......... ................................................................................................................. 35 .�.._ /��'{T1�;L1u 1� M1�C I ! l �N�.(�L1� ......................................................................................................................................36 -.ww__. -.�.. ..__ _ 17.0] Giri,��; t�r�t,crx ............... . ......... .......... . ....... ............... ... ....... ... . ........... ..... .......... . ....... ....�..... ] 7.02 �'n��r �tr�r�tiaa�Jc� 7f��rs:s` ............................................................................................................................................ 36 �.-1 �` nn� 17.03 C��rra�rffrrri��c l��ra�ccl�r ... ............................................................................................................................................36 17.04 ,��et_t�r"v,rr( ry (".lfrfi,�ra�ions .....................................•••............................................._.................................................... 36 17.05 f'nratr°ullirr�; l.rrr�+ c�rrd Venue ..............................................................................................................•••.................. 36 17.06 I�errc�'r�a�s ... .... ......... .....�.........,.. ........,...... ... .. ...,,......... .. .,.,..., � ........,. .�,...... .....,.., ..........36 ...... 17.07 ��rr��i;�c�,•i��ir�crtr'r.�ra ...............................................................................................................................................36 - .,..�, 17.08 Ir�-�cFrrrier�r �;carrlt°�rca�rt . ...................................................................................................................................... 36 �" - --_.� n� �.� ............. . .................. ...............� . . , ..,.......,. ...... .....,... .....,.a.... ...... ..........�� 17.09 �i �s ta �'r��il��~ ��r � r�aa�,.. 17.10 li'%�irt tv �ar�dit �'c��f��r��t�a s R�ct�rea's.....••• .............................................................................................................36 17.1 1 Ne�ti�:� cai'�`r3ral�r�c t i;"irrtrrr ................................................................................................................................... 36 ��A 17.12 �a�c��.ss�ar-s r��rr�.��.5i�zra;s .........................................................•••...........................................................................36 17.13 E�'�-r'1��ta �fr>�'i�c� .............. .............. .. . . . ........ „......, . ................. . ..a. ..,. , ... ...... .,....... ....,,... .....„....3� � m� 17.14 �`ia f� rr��r�_I�z�rrte�iic:.s°,',fVV� }��ai�a�� rt�1i{�1rta�Lr,�t ................................................. .......... ........� ..,..�....3� 17.15 Interesl ...................... ........................................................... ............. ......a... .... ,........ _........ .....,.... �G Exhibit D a�n�..�._m_., . �....�_ _.._.�._ File 6041 Page 20 of 139 1 ! 1' �' ' • � 1 � � ' ' � � � ' GI:NERAL CONDITIONS ARTICLE 1 �- DEFINITIONS AND TERMINOLOGY 1.01 Defrrped Terr�rs A. Wherever used in the Bidding Requirements or Contract Documents and printed wifh initial ca}iital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. ln addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda--Written or graphic instruments issued prior to the opening of Bids vrhich clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2. Agreen�ent--The written instrument which is evidence of the agreement between Owner and Contractor covering the Work. 3. Applicalion for Paynrent--The form acceptable to Engineer which is fo be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4. Asbeslos--Any material that contains more than one percent asbestos and is friable or is releasing asbestos f bers into tl�e air above current action levels established by the United States Occupational Safety and Health Administration. 5. 6id--The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices for the Work lo be performed. 6.13idder--The individua] or entity wl�o submits a Bid directly to Owner. . 7. Bidding , Documenls--The Bidding 12equirements and the proposed Contract Documents (including all Addenda). 8. Bidding Requi�•enrenls--The Adverlisement or Invitation to Bid, lnstructions to Bidders, bid security of acceptable form, if any, and the Bid Form with any supplements. ,_.._�... —_..,�..._._ .�...m. �.. � ,.�..... Exhibit D 9. Chunge O��der--A document recommended by Gngineer which is signed by Contractor and Owner and authorizes an addition, deletion, or revision in the Work oc an adjustment in the Contract Price or the Contract Times, issued on or after tlie EffecYive Date of the Agreement. 10. Claim--A demand or assertion by Owner or Contractor seeking an adjustment of Contract Price or Coniract Tiines, or both, oe other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim. 11. Ca71rac1--The entire and integrated written agreement between the Owner and Contractor concerning the Woek. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral. 12. Conlrac! Docunaenls-- Those items so designated in the Agreernent. Only printed or hard copies of the items listed in the Agreement are Contract Documents. Approved Shop Drawings, other ContracYor's submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. l3. Conlract Price--The moneys payable by Owner to Contractor i'or completion of the Work in accordance with the Contract Documents as stated in ihe Agreement (subject to the provisions of Paragraph 11.03 in the case of Unit Price Work). l4. Conlracl Tinaes--The number of days or the dates stated in the Agreement to: (i) achieve Milestones, if any, (ii) achieve Substantial Completion; and (iii) complete the Work so that it is ready foe fina] payment as evidenced by Engineer's written recommendation of final payment. 15. Ca�tracta•--The individual or entity with whom Owner has entered into the Agreement. 16. Cos[ of �he Work--See Paragraph I 1.O1.A for definition. 17. Dra��ings--That part of the Contract Documents prepared or approved by Engineer whicl� graphically shows the scope, extent, and character of tl�e Work to be performed by Contractor. Shop Drawings and otl�er Contractor submittals are not Drawings as so def ned. 18. Effeclive Date of 11�e Agreement--The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, iY means the date on which the Agreement is signed and delivered by the last orthe two parties to sign and deliver. File 6041 Page 21 of 139 � ; 1 � 1 � •` 1 � �' ` � � �'' ] 9. Enginee�•--The individual or entity named as such in the Agreement. 20. Field Order--A wririen order issued by Bngineer which requires minor changes in the Work but which does not involve a change in tlie Contract Price or the Contract Tirnes. 21. General Requirenrenls--Sections of Division ] of the Specifcations. The General Requirements pertain to all sections of tl�e Specifications. 22. Ha�ardous Environmenta! Condilia�--The presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste, or Radioactive Material in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 23. Hazardous Wasle--The term Hazardous Waste shall have the meaning provided in Sectior� 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 24. Laws and Regulalions; Laws or Regulations- -Any and al] applicable laws, rules, regulations, ordinanc- es, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 25. Liens--Charges, security interests, ar encumbrances upon Project funds, real property, or personal property. 26. Milestone--A principal event specified in the Contract Documents relatingto an intermediate completion date or time prior to Substantial Completion of all the Work. 27. No[ice of Award--The written notice by Owner Yo the Successful F3idder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, Owner will sign and deliver the Agreement. 28. Nolice lo Proceed--A written notice given by Owner to Contractor fixing the dale on which the Contract Times will commence to run and on which Contractor shall start to perform,the Work undee the Contrac4 Documents. 29. Owner--The individual or entity with whom Contractor has entered into the Agreement and for whom tl�e Work is to be performed. 30. PCI3s--Polychlorinated biphenyls, �._ , _ ._� ._. �,._._._, �..._s.. � w.v..._ Exhibit D 31. PeU•oleirn7--Petroleum, including crude oil or any fraction tl�ereof whicl� is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and ]4.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-Hazardous Waste and crude oils. 32. Progress Schedule--A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising tlie Contractor's plan to accomplish the Work within the Contract Times. 33. Projecl--The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 34. Projecl Ma�aual--The bound documentary information prepared for bidding and constructing the Work. A listing of the contents of the Project Manual, which may be bound in one or more volumes, is contained in the table(s) of contents. 35. Radioactive Ma[erial--Source, special nucle- ar, or byproduct material as defined by the Atomic Cnergy Act of 1954 (42 USC Section 2011 ef seq.) as arnended from time to time. 36. Related En[iry -- An officer, director, partner, employee, agent, consultant, or subcontractor. 37. Resident Project RepresenPative--The autho- rized representative of Gngineer who may be assigned to the Site or any part thereof. 38. Samples--Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and wl�ich establish the standards by which such porcion oithe Work will be judged. 39. Schedule oJSubmiltals--A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. 40. Schedule of Values--A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to v��i�tis �3ortions of the Work and used as the basis for revicw�dm��; Contractor's Applications for Payment. 41. Shop Drawings--All drawings, diagrams, illustrations, schedules, and other daYa or information whicl� are specifically prepared or assembled by or for Contractor and submiried by Contractor to illustrate some portion of tlie Work. File 6041 Page 22 of 139 t � 1 � � ' 1 � ! � ' , • � 42. Site--Lands or areas indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights-of=way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. 43. Specrficulia�s--That parc of the Contract Documents consisting of written requirements for materials, eyuipment, systems, standards and workmanship as applied to the Work, and cerfair� administrative requirements and procedural matters applicable thereto. 44. SubconlracPor--An individua] or entity having a direct contract with Contractor or with any other Subcontractor for the per�formance of a part of the Work at Yhe Site. 45. Substanlial Canple[ion--The time at which the Work (or a specified parc thereo� has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereo� is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereo� can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 46. Successful L3idder--The Bidder submitting a responsive Bid to whom Owner makes an award. 47. Supplemenlary Condilivns--That part of the Contract Documents which amends or supplements these General Conditions. 48. Supplier--A manufacturer, fabricator, suppli- er, distributor, materialman, or vendor having a direct contract with Concractor or with any Subcontractor to furnisl� materials or equipment to be incorporated in the Work by Contractor or any Subcontractor. 49. Undergrou«d Facililies--All underground pipelines, conduits, ducts, caUles, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey �lectricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or cliemicals, or traffe or other control systems. 50. Ur�i! Pi•ice Work--Work to be paid for on the basis of unit prices. 51. Work--The entire construction or the various separately identifiable pares thereof required to be provided under the Contract Documents. Work includes and is the result of perfonning or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installinb, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. 52. Woi•k Change Dir•ee[ive--,A written statement to Contractor issued on or after the Effective Date of the Agreement and signed by Ow»er and recommended by �ngineer ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence ihat ihe parties expect that the change ordered or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, ii'any, on the Contract Price or Contract Times. 1.02 Terrrpirtology A. The fo]lowing words or terms are not defined but, when used in the Bidding Requirements or Contract Documents, have the following meaning. B. Inlen! ofCerlain Te��ms or Adjeclives 1. The Contract Documents include ihe terms "as allo�ved," "as approved," "as ordered", "as directed" or terms of like effect or import to authorize an exercise of professional judgment by Engineer. In addition, the adjectives "reasonable," "suitable," "acceptable," "proper," "satisfactory," or adjectives of like effect or import are used to describe an action or determination of Engineer as to the Work. lt is intended that such exercise of professional judgment, action or determination will be solely to evaluate, in general, the Work for compliance with the requirements of and information in the Contract Documents and conformance witli the design concept of the completed Project as a f'unccioning wl�ole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such tenn or adjective is not intended to and shall not be effective to. assign to Gngineer any duty or authority to supervise or direct the perfonnance of the Work or any duty or authority to undertake responsibility contrary to the provisions of Paragraph 9.09 or any otl�er provision of the Contract Documents. �..�. . � M�,�� .�..�. �._� �._ Exhibit D File 6041 Page 23 of 139 , � 1 �' � 1 � �' ' �, � � ' C. Day 1. The word "day" means a calendar day of 24 hours measured from midnight to the next midnight. D. Defeclive ]. The word "defective," when modifying the word "Work," refers to Work tl�at is unsatisfactory, faulty, or deficient in that it: a. does not conform to the Contract Documents, or b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents, or c. has been damaged prior to Cngineer's - recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Paragraph 14.04 or 14.05). E. Furnish, Inslall, Perform, Provide 1. The word "furnish," when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. 2. The word "install," when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words "perform" or "provide," when used in connection with services, materials, or equipment, shall mean to furnish and install said services, inaterials, or equipment complete and ready for intended use. 4. When "furnish," "install," "perform," or "pro= vide" is not used in connection with services, materials, or equipment in a context clearly eequiring an obligation of Contractor, "provide" is implied. F. Unless stated otherwise in the Contract Docu- ments, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2 - PRELIMINARY MATTERS 2.01 Delivery of Ba�ds u�rd Evidence of Insuruirce A. When Contractor delivers the executed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. B. Evidence oflnsurance: Before any Work at the Site is started, Contractor and Owner shall each deliver to the other, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance which either of them or any additional insured may reasonably request) which Contractor and Owner respectively are required to purchase and maintain in accordance with Article 5. 2.02 Copies af Documer:ls A. Owner shall furnish to Contractor up to ten printed or hard copies ofthe Drawings and Project Manual. Additional copies will be furnished upon request at the cost of reproduction. 2.03 Corrrmesrcemerr! af Corrlract Tin:es; Notice to Proceed 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 tllrough no fault of the Contractor, the Contractor shall be intitled 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/Gngineer. D. The term "day" as used in the Contract Documents shall mean a calendar day, beginning and ending at ]2:00 midnight, unless otherwise specifically defned by special provision. �___.... u...u_ �............._�.,. _.r �..�__.._.. Exhibit D File 6041 Page 24 of 139 1 1 1 � ' •' �' 1 � , �' � ' ' � ' � ' 2.04 Slartiirg flre Work A. Contractor shall stari to perform the Work on the date when the Contract Times commence to run. No Work shall be done at the Site prior to the date on whicl� the Contract Times commence to run. B. Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces, materials, and equipment, and shall achieve Substantial Completion within ihe Contract Time. If the Contractor rails or reiuses to complete the Work within the Contract Time as specified in tl�e I3id Proposal form, the Building Construction Services Agreement, or in any proper extension ofthe 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 aftee 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, fxed and agreed upon by and between the Contractor and the Owner because of the impracticality and extreme difficulty of fixing and ascertaining the actual damages the Owner would sustain in the event of the Contractor's late completion of the Project, and the stipulated amount is agreed to be the daily amount of damages that the Owner would sustain. The Stipulated Amount, as it accrues, will be retained from any portion of the Contract Sum due or that may become due to the Conh•actor. 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 abents or assigns, institute any legal action against the Owner tq 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 sulfered by the Owner and attributable to the Contractor, as an alternalive to all liquidated damages due. 2.05 Bejore S1nrPiirg Conslruclio�r A. Prelimi»a�y Schedules:� Within IO days afier the Gffective Date of the Agreement (unless otherwise specified in the General Requirements), Contractor shall submit to Engineer for timely review: l. a prelimina�y Progress Schedule; indicatinb the times (numbers of days or• dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents; 2. a preliminary Schedule of Submittals; and 3. a preliminary Schedule of Values for all orthe Work which includes quantities and prices of items which when added together equal the Contract Price and subdi- vides the Work into component parts in sufficienl detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work. 2.06 Preco�sslrucriorr Confererrce A. Before any Work at the Site is starled, a conference attended by Owner, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to in Paragraph 2.OS.A, procedures for handling Shop Drawings and other submittals, processing Applications i'or Payment, and maintaining required records. 2.07 I�rili�rl Acceptarrce of Sdeerlules A. At ]east ]0 days before submission ofthe first Application for Payment a conference attended by Contractor, Gngineer, and others as appropriate will be held to review for acceptability to Engineer as provided below the schedules submiYted in accordance with Paragraph 2.OS.A. Contractor shal] liave an additional ]0 days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to Contractor until acceptable schedules are submitted to Engineer. 1. The Progress Schedule will be accepeable to Engineer if it provides an orderly progression of the Work co cop�pletion withjn the Contract Times. Such acceptance will iiot impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work nor interfere witl� or relieve Contractor from Contractor's full responsi6ility tl�erefor. 2. Contractor's Schedule of Submittals will be acceptable to Gngineer if it provides a workable Exhibit D u �� w� e� _��.. _ �. �.�� Q..V__.. File 6041 Page 25 of 139 1 � 1 �' � 1 � � ' ' 1 � � arrangemcnt for reviewing and processing the required submittals. 3. Contractor's Schedule oTValues will be accept- able to Gngineer as to form and substance if it provides a reasonable allocation of the Contract Price to component parts of the Work. ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Infenl A. The Conteact Documents are complementary; what is required by one is as binding as if required by all. B. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereo� to be constructed in accoedance with the Contract Documents. Any labor, documentation, services, materials, or equip- ment that may reasonably be inferred from the Contract Documents or from prevailing custom or Yrade usage as being required to produce the intended result will be provided whether or not specifically called for at no additional cost to Owner. C. Clarifications and interpretations of the Contract Documents shall be issued by Engineer as provided in Article 9. 3.02 Reference Sla'srlurds A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or 12egulations, whether such refer- ence be specific or by implication, shall mean the standard, specificatioh, manual, code, or Laws or Regulations in effect at the time ot'opening of [3ids (or on the Effective Date of ihe Agreement if there were no Bids), except as may be otherwise specifcally stated in the Contract Documents. 2., No provision • of any such standard, specificatioi�, manual or code, or any instruction of a Supplier shall be effective to change the duties or responsibilities of Owner, Conlractor, or Engineer, or any of cheir subcontractors, consultants, agents, or employees from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to Owner, or Cngineer, or any of, their Related Entities, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake respon- sibility inconsistent with the provisions of the Contract Documents. 3.03 Repnrli�rg and Resolving Discrepancies A. Repoiting Discrepancies l. Conlruclor's Review of Cont�•acl Docunae»[s l3efore Slarling Work: Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to Engineer any conflict, error, ambiguity, or discrepancy which Contractor may discover and shall obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby. 2. Contraclor's Review of ConPracP Docunrents During Perfor�7rance of Work: If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents or between the Contract Documents and any provision of any Law or Itegulation applicable to the performance of the Work or of any standard, specification, manual or code, or of any instruction of any Supplier, Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph 3.04. 3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor knew or reasonably should have known thereof. B. Resolving Disceepancies 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and: .... ___�..__ ..�.. � Exhibit D File 6041 Page 26 of 139 a. the provisions, �of any standard, specification, manual, code, or instruction �(whether or not specifically incorporated by reference in the Contract Documents); or b. tl�e provisions of any Laws or RegulaYions applicable to tlie performance of the Work (unless such an interpretation of the provisions of the � 1 � � � � � � ' � , ; � � Contract Documents would result in violation of sucl� Law or Regulation). 3.04 A�srerrding arrd Supplenrerrling Conlracl Docuirre�:ls A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by either a Change Order or a Work Change Directive. B. The requirements of the Contract Documents may be supplemented and minor variations and deviations in the Work may be authorized, by one or more of the following ways: 1. A Field Order; 2. Cngineer's approval of a Shop Drawing or Sample; (Subject to the provisions of'Paragraph 6.17.D3); or 3. Engineer's written interpretation or clarification. 3.05 Reuse of DocunteraPs A. Contractor and any Subcontractor or Supplier or other individual or entity performing or furnishing all of the Work under a direct or indirect contract with Contractor, shall not: ]. have or acyuire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereo� prepared by or bearing the seal of ]Engineer or Engineer's consultants, including electronic media editions; or 2. Reuse any of such Drawings, Specifications, othei• documents, or copies thereof on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaption by Engineer. B. The prohibition of this Paragrapl� 3.05 will survive final payment, or termination of the.Contract. Nothing herein shall preclude Contractor frotn retaining copies of the Contract Documents for record purposes. 3.06 Electraric Data A. Copies of data rurnished by Owner or �ngineer to Contractor or Contractor to Owner or Engineer that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, gi•aphics, or other types are furnished only for the convenience of tlie receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. ]f there is a discrepancy between the electronic files and the hard copies, the hard copies govern. f3. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic fles agrees that it will perform acceptance tests or procedures within 60 days, after which tl�e receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60-day accepiance period will be corrected by lhe transferring party.. C. When transferring documents in electronic media format, the transferring pariy makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software applicatioii packages, operating systems, or computer hardware differing from those used by the data's creator. ARTICLE 4- AVAILABILITY OF LANDS; SUBSURFACF. AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMGNTAL CONDITIONS; REFERENCE POINTS 4.01 Avai/abi/rly of Laords A. Owner shall furnish the Site. Owner shall notify Contractor of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. Owner wil] obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. If Contractor and Owner are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, as a result of any delay in Owner's furnishing the Site or a part thereof, Contractor may make a Claim therei'or as provided in Paragraph 10.05. B. Upon reasonable written request, Owner shall furnish Contractor with a current statement of record legal title and legal description ofthe lands upon which the Work. is to be performed and Owner's interest therein as necessary for giving notice of or filing a mecl�anic's or construction ]ien against such lands in accordance with applicable Laws and Regulations. C. Contractor shall provide for all additional lands and access thereto that may be required for temporary Exhibit D .�._�.�.�am� _�_�_. _� �u File 6041 Page 27 of 139 1 '' � � 1, ; � ' , � i # ;� . . � ' � �. ` construction facilities or stora�e of materials and equip- ment. 4.02 Subsurfnce and Plrysicnl Co��difions A. Reporls and Dr�a��ings: The Supplementary Conditions identify: 1. Those reports of explorations and tests of subsurface conditions at or contiguous to the Site that Engineer has used in preparing the Contract Documents; and 2. Those drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) that Engineer has used in preparing the Contract Documents. B. Linriled Reliance by Con[ractor on Technica! Data Aullrorized: Contractor may rely upon the general accuracy of the "technical data" contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identified in the Supplementary Conditions. Except for such reliance on such "technical data," Contractor may not rely upon or make any claim against Owner or Engineer, or any of their Related Entities with respect to: 1. the completeness of such reports and drawings for Contractor's purposes, including, but not limited to, any aspects ofthe means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or 2. Other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. Any Contractor interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations, opinions, or infonnation. 4.03 Differerig Subsurjace or P/rysicu! Coardiliars A. Nolice: If Contractor believes that any subsur- face or physical condition at or contiguous to the Site that is uncovered or revealed either: � I. is of such a nature as to establish that any "technical data" on which Contractor is entitled to rely as provided in Paragrapli 4.02 is materially inaccurate; or 2. is of such a nature as to require a cliange in the Contract Documents; or 3. differs materially from tl�at shown or indicated in the Contract Documenls; or 4. is of an unusual nature, and differs materially fi•om conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, promptly after becoming aware tl�ereof and before furiher disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), notiiy Owner and Engineer in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection thet•ewith (except as aforesaid) until receipt of written order to do so. B. Engineer's Review: After receipt of written notice as required by Paragraph 4.03.A, Engineer will promptly review the pertinent condition, determine the necessity of Owner's obtaining additional exploration or tests with respecc thereto, and advise Owner in writing (with a copy to Contractor) of Engineer's findings and conclusions. C. Possible Price and Times Adjustments l. The Contract Price or the Contract Times, or both, wi]l be equitably adjusted to the extent tl�at the existence of such differing subsurface or physical condition causes an increase or decrease in Contractor's cost of, or time required for, performance of the Work; subject, however, to the following: a. such condition must meet any one or more of the categories described in Paragraph 4.03.A; and b. with respect to Work that is paid for on a Unit Price Basis, any adjustment in Contract Price will be subject to the provisions of Paragraphs 9.07 and 11.03. 2. Contractor shall not be entitled to any adjustment in the Contract Price or Contract Times if: a. Contractor knew of the existence of such conditions at the time Coniractor made a final commitment to Owner with respect to Contract Price and Contract Times by the submission of a Bid or becoming bound under a negotiated contract; or b. the existence of such condition could reasonably have been discovered orrevealed as a Exhibit D �� ` �W�mmm File 6041 Page 28 of 139 � - � 1 �' � 1 � � � � �'' result of any examination, invesiigation, explo- ration, test, or study oT the Site and contiguous areas req�ired by the Bidding Requirements or Contract Documents to be conducted by or for Contractor prior to Contractor's making such final commitment; or c. Contractor failed to give the written notice as required by Paragraph 4.03.A. 3. If Owner and Contractot• are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, a Claim may be made thererore as provided in Paragraph 10.05. Howevee, Owner and Engineer, and any oftheir Related Entities shall not be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbiteation or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project. 4.04 Urfdergruund Faciliti�s � A. Shown or lndicaled.• The information and data shown or indicated in the Contract Documents with respect to existing Underbround Pacilities at or contiguous to the Site is based on inSormation and data furnished to Owner or Engineer by the ownees of such Underground Facilities, including Owner, or by others. Unless it is otherwise expressly provided in the Supplernentary Conditions: 1. Owner and �ngineer shall not be responsible for the accuracy or completeness of any such information or data; and 2. the cost oi'all of the i'ollowing will be included in the Contract Price, and Contractor shall have full responsibility for: a. reviewing and checking all such information and data, b. locating all Underground Facilities shown or indicated in the Contract Documents, c. coordination of the Wor�C with the owners of such Underground Facilities, including Owner, during construction, and d. the safety and protection of all such Under- ground Facilities and repairing any damage thereto resultin� from the Work. B. No1 SlaoN�n o�- Indica[ed � Exhibit D �� ]. lf an Underground Facility is uncovered or revealcd at or contiguous to the Site which was not shown or indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, Contractor shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), identify the owner of such Underground Facility and give written notice to that owner and to Owner and Engineer. Engineer will promptly review the Underground Facility and determine the extent, if any, to which a change is required in the Contract Documents to reflect and document tlie consequences of the existence or location of the Underground Facility. During such time, Contractor shall be responsible for the safety and protection of such Underground Facility. 2. If Cngineer concludes that a cllange in the Contract Documents is required, a Work Change Directive or a Change Order will be issued to reflect and document such consequences. An equitable adjustment shall be made in the Contract Price or Contract Times, or both, to the extent that they are attributable to the existence or ]ocation of any Underground Facility that was not shown or indicated or not shown or indicated with reasonable accuracy in the Contract Documents and that Contractor did not know of and could not reasonably have been expected to be aware of or to have anticipated. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment in Contract Price or Contract Times, Owner or Contractor may make a Claim therefor as provided in Paragraph 10.05. 4.05 Refererrce Poi�rts A. Owner shall provide engineering surveys to establish reference points for construction which in Cngineer's judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work, sl�all protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report to �ngineer whenever any reference point or property monument is ]ost or destroyed or requires relocation because of necessary changes in grades or locations, and s}�all be responsible for the accurate replaces��cn# or relocation of such reference points or property m��trtrar��nts by professionally qualified personnel. 4.06 I�azardous ErtvironnrerrPrcl Coirdilio�t uP SrPe The Contractbr and its Subcontractors are deemed to have made themselves familiar with and at all times shall comply with all applicable rederal, state or local laws, File 6041 Page 29 of 139 1- � 1 � � 1 �! � ' • � � rules, regulations, ordinances, and rules of common law now in effect (including any amendments now in effect), relating to�tl�e environment, l�azardous Substances or exposure to Hazardous Substances, including but not limited to tl�e Comprehensive Enviromnental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§ 9601, el seq.; the Hazardous Materials Transporiation 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 §§ 120i, et seq.; tlie 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., arid any current judicial or administrative interpretation ofthese laws, rules, regulations, ordinances, or rules of common law, including but not limited to any judicial or administrative order, consent decree, or judgment affectinb the Project. A. ReporPs and Drawings: Reference is made to the Supplementary Conditions for the identification of those reports and drawings relating to a Hazardous Cnvironmental Conditian identified at the Site, if any, that have been utilized by the Engineer in the preparation ofthe Contract Documents. B. Limited Reliance by Con1�•aclor on Technical Dala Authorrzed: Contractor may rely upon the general accuracy of the "technical data" contained in such repores and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identiiied in the Supplementary Conditions. Except for such reliance an such "technical data," Contractor may not rely upon or make any claim against Owner or Engineer, or any of their Related Entities with respect to: 1. the completeness of such reports and drawings for Contractor's pui-poses, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incider�t thereto; or 2. other data, interpretations, opinions and irif'ormation contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from, any "technical data" or any such other datat interpretations, opinions or information. C. Contractor shall not be responsible for any l�azardous Environmental Condition uncovered or re- vealed at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within tl�e scope of the Wo►•k. If the Owner determines tl�at the Hazardous Substance exists in lhe affected area due to the fault of negligence of the Contractor or any of its Subcontractors, tl�e Contractor shall be responsible remediating the Hazardous Cnvironmental Condition created with any materials brought to the Site by Contractor, Subcontractors, Suppliers, or anyone else for whom Contractor is responsible, at the sole expense of the Contractor in accordance with ihe Contractor's APPROVED Remediation Plan. (APPROVED represents "approved by OWNER) D. lf Contractor encounters a Hazardous Environmental Condition or. if Contractor oe anyone for whom Contractor is responsible creates a Hazardous �nvironmental Condition, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such candition and in any area affected thereby (except in an emergency as required by Paragraph 6.16.A); and (iii) natify Owner and Engineer (and promptly thereafter confirm such notice in writing). Owner shall promptly consult with Engineer concerning the necessity for Owner to retain a qualified expert to evaluate such condition or take corrective action, if any. The Contractor shall be responsible for identification, abatement, cleanup, control, removal, remediation, and disposal of any Hazardous Substance brought into or upon the site by the Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and alB permits necessary for the Begal 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 ArchitecUEngineer so that they may observe the activities; provided, however, that it shall be the Contractor's sole responsibility to comply with all applicable laws, rules, regulations, or ordinances governing the activities. Spill Prevention Plan. Ac 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, ��•� ��•c;v�rition r°��irl��ticans, and poll€.�tian ��a-eventin�l ��i�s and prc�ccc��ae`s.s. The SPRP �I��l1 ir�clude ��;fimates 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 al I applicable twenty-four (24) hour emergency phone number•s, including without limitation that of the Owner's Exhibit D� ---�-�.� �- _�.�.._.__. File 6041 Page 30 of 139 � � � � �• � � � � e � • Project Manager or other designated representative. The Contractor shall not commence any field work prior to approval of such plan by ihe Owner. The following additional rules shall apply with respect to spills or releases caused by ihe Contractor or a SubconYractor: (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. Tliereafter, within two (2) working days after Yhe 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 or release. (3) The Contractor shall dispose of cleanup, abatement, and remediation materials in accordance with EPA and Texas Commission on Environmental Quality (TCEQ) regulations and any other applicable federal, state, or local laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those transporters and disposal facilities that are approved in advance in writing by the Owner. A copy of all transport manifests for the spilled materials shall be obtained and retained in the ContracYor's eecords 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 OP CLEANUP, ABATEMENT, AND REMEDIATION MATERIALS SHALL C3E THE SOLE RCSPONSIBILITY OF THE CONTRACTOR. (4) For purposes of this Subparagraph (d), the term "spill" includes any kind of , environmental discharge or release. Clean Air Managemeirt 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 lhe Contractor's sole expense, to require the removal or retrofitting of any equipment used in the course of construction that does not comply with the Plan submitted to and approved by the Owner. The Contractor sliall 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 disposa] sites oi• 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 govemmental regulatory agency with jurisdiction over the matter. The Contractor is responsible for obtaining all TPDES Storm Water Permits fi•om TCEQ for construction of the Project under regulations contained in 40 CFR Aart 122, as amended, pursuant to the Clean Water Act, 33 U.S.C.A. §§1251 et seq. These regulations require the filing of a notice of intent to obtain and abide by the general storm water permit for construction activities promulgated by EPA, including but not limited to clearing, 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 Subchapters 18 (Land Disturbing Activities) and Subchapter 19 (Drainage Standards) ofthe Denton Development Code, as amended. The Contractor shall not install any materials in the perf'ormance ofthe Work that contain asbestos or asbestos-related material such as hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremoliie, anthophylite or actinolite, whether friable or non-friable. The Owner reserves the right in its sole option to exercise the following remedies (without waiving the right to pursue the imposition of any civil or criminal fines or penalties that may be imposed under state, federal, or local laws or ordinances), at no additional cost to ihe Owner and without an extension ofthe 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�Article, the terms of the SPRP, tl�e tenns of the Clean Air Management Plan, any storm water permit or other envi�•onrnental permit issued in connection with the Work, or any applicable environmental law, rule, regulation, or ordinance: Exhibit D _._._.�._..�m.__ �. _�..�_ —�. �w�m� File 6041 Page 31 of 139 (1) suspend all or any portion ofthe Work until tlie noncompliance is corrected, or ;1 � � 1 � � ' 1 � � ' 1 � ' � " until a delailed plan to achieve compliance �vithin a reasonably prompt period of time is prepared by tl�e 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 ofthe remediation or correction; or (3) terminate the Contract for cause as provided in the General Conditions. E. Contractor shaq not be required to resume Work in connection with such condition or in any affected area until after Owner has obtained any required permits related thereto and delivered to Contractor written notice: (i) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work; or (ii) specifying any special conditions undee which such Work may be resumed safely. ]f Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of any adjustment in Contract Price or Contract Times, or both, as a result of such Work stoppage or such special conditions under whicl� Work is agreed to be resumed by Contractor, either party may make a Claim therefor as provided in Paragraph 10.05. F. If after receipt of such written notice Contractor does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special condiiions, then Owner may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. If Ov✓ner and Contractor cannot agree as to entitlernent to or on the amount or extent, if any, of an adjustment in Contract Price or Contract Times as a result of deleting such portion of the Work, then either party may rnake a Claim therefore as provided in Paragraph 10.05. Owner may have such deleted portion of the Work performed by Owner's own forces or others in accordance with Article 7. G. Deleted by intention. H. To ihe fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants, and subcontractors oreach and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all courl or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4.O6.H sliall obligate Contractor to indemnify any individual or entity fro�r and against the consequences of that individual's or entity's own negligence. 1. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not apply to a Hazardous Environmental Condition uncovered or revealed at the Site. ARTICLE 5- BONDS AND INSURANCE 5.01 Perfarra:arrce, Payenenl, u�sd 011ter Boirds A. Contractor shall furnish performance and payment bonds, eacl� in an amount at least equal to the Contract Price as security for the faithTul performance and payment of all of Contractor's obligatians under the Contract Documents. These bonds shall remain in efi'ect until one year after the date when final payment becomes due or until completion of the correction period specifed in Paragraph 13.07, whichever is later, except as provided otheewise by Laws or Regulations or by the Contract Documents. Contractor shall also furnish such other bonds as are required by the Contract Documents. B. All bonds shall be in the form p�•escribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as pub- lisl7ed in Circular 570 (amended) by the Pinancial Management Service, Surety Bond Branch, U.S. Department of the Treasury. All bonds signed by an agent must be accompanied by a certified copy of the agent's authority to act. C. If the surety on any bond furnished by Conteactor is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located or it ceases to meet the requirements of Paragraph S.O1.B, Contractor sha11 promptly notify Owner and Engineer and shall, within 20 days after the event giving rise to such notification, provide another bond and surety, both of which shall comply with the requirements of Paragraphs S.O1.B and 5.02. 5.02 Lice,rsed Sureties urrd larsurers A. All bonds arid insurance required by the Contract Documents to be purchased and rnaintained by Owner or Contractor shall be obfained from surety or insurance companies that are duly licensed or authorized in m.LL..�.�� ._� ��._...._ m...�� . a...__ _A e.� .. A. Exhibit D Fil2 6041 Page 32 of 139 � 1 � • ' • ' � 1 ! 1 ' �' ' � � the State of 7'exas to issue bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. 5.03 Cerlificales of /�rsurn�rce A. Contractor shall deliver to Owner, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by Owner oe any other additional insured) which Contractor is required to purchase and tnaintain. B. Owner shall deliver to Contractor, with copies to each additional insured identified in the Supplementary Conditions, certifcates of insurance (and other evidence of insurance requested by Contractor or any other additional insured) which Owner is required to purchase and maintain. 5.04 Co►�rracror's Liabilr'ry I,rsurarrce A. Contractor shall purchase and maintain such liability and other insurance as specified through "[nsurance and Workers' Compensation Requirements — Attachment A, and will provide protection from claims set forth below which may arise out of or result i'rom Contractor's performance of the Work and Contractor's other ob]igations under the Contract Documents, whether it is to be performed by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any oi'them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers' compensation, disability benerits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor's employees; . 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor's employees; 4. claims. for damages insured by reasonably available personal injury liability coverage wl�ich are sus- tained: a. by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or b. by any otl�er person for any other reason; 5. claims for damages, other than to the Work itself, because oi' injury to or destruction of tangible property wherever located, including loss of use resulting cherefrom; and 6. claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. B. The policies of insurance required by this Paragraph 5.04 shall: l. with respect to insurance required by Paragraphs 5.04.A3 through 5.04.A.6 inclusive, include as additional insured (subject to any customary exclusion regarding professional liability) Owner and Cngineer, and any other individuals or entities identified in the Supple- mentary Conditions, all of whom shall be listed as addi- tiona] insureds, and include covera�e for the respective officers, directors, partners, employees, agents, consultants and subcontractors of each and any of all such additional insureds, and the insurance afforded to these additional insureds shall provide primary coverage for all claims coveredthereby; 2. include at least the specifc coverages and be written for not less than the limits of liability provided in the "Insurance and Workers' Compensation Requirements — Attachment A, or required by Laws or Regulations, whichever is greater; 3. include completed operations insurance; 4. include contractual ]iability insurance covering Contractor's indemnity obligations under Paragraphs 6.l 1 and 6.20; 5. contain a provision or endorsement that the coverage at'forded will not be canceled, materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Contractor and to each other additional insured identified in the Supplementary Conditions to whom a certifcate of insurance has been issued (and the certificates or insurance rurnished by the Contractor pursuani to Paragraph 5.03 will so provide); , 6. remain in effect at ]east until final payment and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work in accordance with Paragraph 13.07; and 7. with respect to completed operations insurance, and any insurance coverage written on a claims-made �. ..._. �.w.� �. � �k_._ Exhibit D File 6041 Page 33 of 139 1+ , � 1 • � ' 1 � � � � � ' basis, remain in effect for at least two years after final payment. a. Contractor shall furnish Owner and each other additional insured identified in the Supplementary Conditions, to whom a certificate of insurance has been issued, evidence satisfactory to Owner and any such additional insured of continuation of such insurance at final payment and one year thereafter. 5.05 Owrter's Liability Ir:surance A. In addition to tl�e insurance requi►•ed to be provided by Contractor under Paragraph 5.04, Owner, at Owner's option, may purchase and maintain at Owner's expense Owner's own liability insurance as will protect Owner against claims which may arise from operations under the Contract Documents. 5.06 Property /r:surartce A. Unless otherwise provided in the Supple- mentary Conditions, Owner shall purchase and maintain properly insurance upon the Wark at the Site in the amount of the full replacement cost thereof (subject to such deductible amounts as may be provided in the Supplermentary Conditions or required by Laws and Regulations). This insurance shall: � ]. include tl7e interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or encities identified in the Supplementary Conditions, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be listed as an insured or additional insured; 2. be written on a Builder's Risk "all-eisk" or open peril or special causes of loss policy form that shall at least include insurance for physical loss or damage to the Work, tempoi•ary buildings, false work, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, thefi, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage, (other thatt caused by flood) and such othe� perils or causes of loss as may be specifically required by the Supplementary Conditions; 3. include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects); �Bxhibit D� �� m. � 4. cover materials and equipmenl stored at the Site or at another location that was agreed to in writing by Owner prior to being incorporated in the Work, provided that such materials and equipment have been included in an Application for Payment recommended by Engineer; Owner; 5. allow for partial utilization of the Wot•k by 6. include testing and startup; and 7. be maintained in effect until fnal payment is rnade unless otherwise agreed to in writing by Owner, Contractor, and �ngineer with 30 days written notice to each other additional insured to whom a certifcate of insurance has been issued. II. Owner shall purchase and maintain such boiler and machinery insurance or additional property insurance as may be required by the Supplementary Conditions or Laws and Regulations which wil] include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them, each of whom is deemed to have an insurable interesi and shali be listed as an insured or additional insured. C. All the policies of insurance (and the cerlifi- cates or other evidence thereof} required to be purchased and maintained in accordance with Paragraph 5.06 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Cantractor and to each other additional insured to whom a certificate of insurance has been issued and will contain waiver provisions in accor- dance with Paragraph 5.07. D. Owner shall not be responsible for purchasing and maintaining any property insueance specifed in this Paragraph 5.06 to protect the interests of Contractor, Subcontractors, or others in the Work to the extent of any deductible •amounts tliat are identi�ed in the Supple- mentary Conditions. The risk of loss within such identified deductible amount will be borne by Contractor, Subcontractors, or others suffering any such loss, and if any of them wishes property insurance coverage within the limits of such amounts, each may purchase and maintain it at the purchaser's own expense. E. If Conteactor requests in writing that other special insurance be included in the property insurance policies provided under Paragraph 5.06, Owner shall, if possible, include such insurance, and [he cost thereoiwill File 6041 Page 34 of 139 � 1 � �' '•, � 1 l i' � ' � ' �, be charged to Contractor by appropriate Change Order. Prior to commencement oT the Work at the Site, Owner sl�all in writing advise Contractor whetlier or not such other insurance has been procured by Owner. 5.07 Wainer of Rig/rPs A. Owner and Contractor intend that all policies purchased in accordance with Paragraph 5.06 will protect Owner, Contractor, Subcontractors, and �ngineer, and all other individuals or entities identi9ied in the Supple- mentary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them) in such policies and will provide primary coverage for all losses and damages caused by the perils or causes of loss covered thereby. All such policies shall contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no rights of recovery against any of the insureds or additional insureds thereunder. Owner and Contractor waive all rights against each other and their respective officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them for all ]osses and damages caused by, arising out of or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against Subcontractors, and Engineer, and all other individuals or entities identified in the Supplemen- tary Conditions to be listed as insured or additional insured (and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them) under such policies for losses and damages so caused. None of the above waivers shall extend to the rights thal any party making such waiver may have to the proceeds of insurance held by Owner as trustee or otherwise payable under any policy so issued. B. Deleted by intention. C. Deleted by intention. See Supplemental Conditions. 5.08 ReceipP a�:d Applicaliorr of Insuru�rce Proceerls A. Any insured loss under the policies of insurance required by Paragraph 5.06 will be adjusted with Owner and made payable. to Owner as fiduciary for the insureds, as their interests may appear, subject to the requirements of any applicable mortgage clause and of Paragraph 5.08.B. Owner shall deposit in a separate account any money so received and shall distribute it in accordance with such agreemenY as the parties in interest may reach. ]f no other special agreement is reached, tl�e damaged Work shall be repaired or replaced, the moneys so received applied on accounc thereof, and. the Work and the cost thereof covered by an appropriate Change Order . B. Owner as fduciary shall have power to adjust and settle any loss with the insurers unless one of the parfies in interest shall object in writing within I S days after ihe occurrence of loss to Owner's exercise of this power. If such objection be made, Owner as fduciary shall make serilement with the insurers in accordance with such agreement as the parlies in interest may reach. ]f no such agreement among the pariies in interest is reached, Owner as fiduciary shall adjust and settle the loss with the insurers and, i!'required in writing by any party in interest, Owner as fiduciary shall give bond for the proper performance of such duties. 5.09 Acceplartce of Boirds ar:d Insura�tce; Oplion !a Replace A. Ifthe Owner has any objection to the coverage afforded by or other provisions of the bonds or insurance required to be purchased and maintained by the Contractor in accordance with Article 5 on the basis of non-coni'ormance with the Contract Documents, the Owner shall so notify the Contractor in writing within 10 days afier receipt of the cenifcates (or other evidence requested) required by Paragraph 2.OI.B. Contractor shall each provide to the Owner such additional information in respect of insurance provided as the Owner may reasonably request. lf the Contractor does not purchase or maintain all of the bonds and insurance required y by the Contract Documents, the Owner shall notify the Contractor in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. Without prejudice to any other right or remedy, the Owner may elect to obtain equivalent bonds or insurance to protect the Owner's interests at the expense of the Contractor, and a Change Order shall be issued to adjust the Contract Price accordingly. 5.10 Parlial UlilizaPiorr, Acknowledgrrten! of ProperPy Insurer A. If Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 14.05, no such use or occupancy shall commence before the insurers providing the property insurance pursuant,to Paragraph 5.06 have acknowledged notice thereof and in writing effected any changes in covera�e necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or pern�itted to lapse on account of any such partial use or occupancy. __.m.�n �e.e....�,�. �� _��. �., �.�...�._ Exhibit D File 6041 Page 35 of 139 1': ! 1 � �< � � � . � � � ARTICLG 6 - CONTRACTOR'S RC- SPONSIBILITIES 6.O1 Supervesiar and Superi�rteardeace A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expercise as may be necessary to perform the Work in accordance with tl�e Contract Documents. Contractar shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. Contractor shall noc be responsible for the negligence of Owner or Engineer in the design or specification of a specific means, method, tech- nique, sequence, or procedure of construction which is sl�own or indicated in and expressly required by the Contract Documents. B. At all times during the progress of the Work, Contractor shall assign a competent resident superin- tendent who shall not be replaced without written notice to Owner and Engineer.. The superintendent will be Contractor's representative at the Site and shall have authority to act on behalf of Contractor. All communications given to or received from the superin- tendent shall be binding on Contractor. G.02 Labor; Workii:g l�ours A. Contractoe shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Docu- ments. Contractor shal] at all times maintain good disci- pline and order at the Site. B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours. Contractor will not permit the performance of Work on a Saturday, Sunday, or any legal holiday without Owner's written consent (which will not be unreasonably withl�eld) given after prior written notice to Engineer. G.03 Services, Malerials, urtd Eqr�ipnrearl A. Unless otherwise specified in the Contract Docuinents, Contractor shall provide and assume full responsibility for all seevices, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary fo'r the perrormance, testing, start-up, and completion ofthe Work. B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifcations shall expressly run to the benefit of Owner. lf required by Engineer, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. C. All materials and equipment shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in tlie Contract Documents. 6.04 l'rr��r��ss Sc/redule A. Contractor shall adhere to the Progress Schedule established in accordance with Paragraph 2.07 as it may be adjusted from time to time as provided below. 1. Contractor shall submit to Engineer and Owner for acceptance (to the extent indicated in Paragraph 2.07) proposed adjustments in the Progress Schedule that will not result in changing the Contract Times. Such adjustments will comply with any provisions of the General Re- quirements applicable thereto. 2. Proposed adjustments in the Progress Schedule that will cBiange the Contract Times shall be submitted in accordance with the requirements of Article 12. Adjustments in Contract Times may only be made by a Change Order. 6.05 Subslilules a�sd "Or-Eryua/s" A. Whenever an item of material or equipment is specified or desceibed in the Contract Documents by using the name of a proprietary itetn or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or "or-equa]" item or no substitution is permitted, other items of material or equipment or material or equipment of other ��:��lic.es rs��y be submifte� to �ngineer for review under t9�e cir�:��t�nces descril��d below. 1. "Or-Eqtral" I[ems: If in Engineer's discretion, and approved by the Owner, an item of material or equip- ment proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by Cngineer as an "or-equal" item, in which case review and approval _...... �ee.�.�_ _._.� Exhibit D File 6041 Page 36 of 139 �xhibit D CITY OF DENTON GENERAL CONDITIONS FOR WATER PROJECT CONSTRUCTION of tlie proposed item may, in �ngineer's sole discretion, be d. Contractor shall make written application to accomplished without compliance with some or all of the Engineer for review of a proposed substitute item requirements for approval ofproposed substitute items. For of material or equipment tl�at Contractor seeks to the purposes of this Paragraph 6.OS.A.1, a proposed item furnisl7 or use. The application: of material or equipment will be considered functionally equal to an item so named if: ]) shall certify that the proposed substi- tute item wi11: a. in the exercise of reasonable judgment Engineer determines that: ]) it is at least equal in materials of construcYion, quality, durability, appearance, strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole, 3) it has a proven record of performance and availability of responsive seevice; and b. Contractor certifies that, if approved and incorporated into the Work: 1) there will be no increase in cost to the Owner or increase in Contract Times, and 2) it will conform substantially to the detailed requiremenis of the item named in Yhe Contract Documents. 2. Substitute ltems a. If in Engineer's discretion, and approved by the Owner, an item of material or equipment pro- posed by Contractor does not qualify as an `br-equaP' item under Paragraph 6.OS.A.1, it will be considered a proposed substitute item. b. Contractor shall submit sufficient information as provided below to allow Engineer to determine that the item of materia] or equipment proposed is essentially equivalenc to that named and an acceptable substitute therefor. Requests for review of proposed substitute items of material or equipment will not be accepted by Engineer from anyone otrer than Contractor. , c. The requirements for review by Engineer will be as set forth in Paragraph 6.OS.A.2.d, as supplemented in the General 12equirements and as Cngineer may decide is appropriate under the circumstances, with approval from the Owner a) perfonn adequately the functions and achieve the results called for by the genera] design, b) be similar in substance to that specified, and c) be suited to the same use as that specified; 2) will state: a) the extent, if any, to which the use of the proposed substitute item will preju- dice Contractor's achievement of Substantial Completion on time; b) whether or not use of the proposed substitute item in the Work will require a change in any of the Contract Docu- ments (or in the provisions of any other direct contract with Owner for other work on the Project) to adapt the design to the proposed substitute item; and c) wliether or not incorporation or use of the proposed substitute iiem in con- nection with the Work is subject to payment of any license fee or royalty; 3) will identify: a) all variations of the proposed substitute item from that specified , and b) available engineering, sales, maintenance, repair, and replacement services; , 4) and shall c.ontain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including costs of redesign and claims of other contractors affected by any resulting change, B. Subs[i�ule Conslruclion Me[l�ods a� Proce- dures: If a specific means, method, technique, sequence, or procedure of conslruccion is expressly required by the _—._��w_�_...._. _w. .__ .....� �.�_�. .r ._��._. _�._.uwm Cxhibit D File 6041 Page 37 of 139 � 1 � 1 �, �,. i • !' ' "''• ' � �' Contract Documents, Contractor may fw�nish or utilize a substitute means, method, technique, sequence, or procedure of construction approved by Engineer and Owner. Contractor shall submit suffcient infonnation to allow Engineer, in Engineer's discretion, and Owner approval to detennine that the substitute proposed is equivalent to tl�at expressly called for by the Contract Documents. The requirements !'or review by Engineer will be similar to those provided in Paragraph 6.OS.A.2. C. Engineer's Lvalualia7: Engineer will be allowed a reasonable time within wliich to evaluate each proposal or submittal made pursuant to Para�raphs 6.OS.A and 6.OS.B. Engineer may require Contractor to furnish additional data about the proposed substitute item. Engineer will be the sole judge of accepcability, and seek approval from Owner. No "or equal" or substitute will be ordered, installed or utilized until Engineer's review is complete, which will be evidenced by either a Change Order, issued by the Owner, for a substitute or an approved Shop Drawing for an "or equal." Engineer will advise Contractor in writing of any negative determination. D. Special Guaraniee: Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. E. Engineer's Cos! Reimbursemen[: Engineer will record Engineer's costs in evaluating a substitute proposed or submitted by Contractor pursuant to Paragraphs 6.OS.A.2 and 6.OS.B Whether or not Engineer approves a substitute item so proposed or subrnitted by Contractor, Contractor shall reitnburse Owner for the charges of Engineer for evaluating each such proposed substitute. Contractor shall also reimburse Owner for the charges of Engineer for making changes in the Contract Documents (or in the provisions of any other direct contract with Owner) resulting from the acceptance of each proposed substitute. F. Conlruclor's Eapense: Contractor shall provide all data in support of any proposed substitute or "or-equal" at Contractor's expense. 6.06 Cor:cerr:i�rg Subcoerlraclors, Suppliers, arrd Od:ers A. Contractor shall not employ any Subcon- tractor, Supplier, or other individual or entity (including those acceptable to Owner as indicated in Paragraph 6.06.B), whether initially or as a eeplacement, against whom Owner may liave reasonable objection. Contractor shall not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perform any of the Work against whom Contractor has reasonable objection. B. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, or other individuals or entities to be subtnitted to Owner in advance for accepcance by Owner by a specified date prior to the Cfrective Date of ihe Agreement, and if Contractor has submitted a list thereof in accordance with tlie Supple- mentary Conditions, Owner's acceptance (eitl�er in wt•itin�; or by failing to make written objection tl�ereto by the date indicated for acceptance oe objection in the Bidding Documents or the Contract Documents) of any such Subcontractor, Supplier, or other individua] or entity so ideniified may be revoked on tlie basis of reasonable objection after due investigation. Conteactor shall submit an acceptable replacement for the rejected Subcontractor, Supplier, or other individual or entity, and the Contract Price will be adjusted by the difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued . No acceptance by Owner of any such Subconteactor, Supplier, or other individual or entity, whether initially or as a replacement, shall constitute a waiver ot' any right of Owner or Cngineer to reject defective Work. C. Contractor shall be fully responsible to Owner and Engineer 1'or all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work just as Contractor is responsible foe Contractor's own acts and omissions. Nothing in the Contract Documents: l. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between Owner or Engineer and any such Subcontractor, Supplier or other individual or entity, nor 2. shall anything in the Contract Documents create any obligation on the part of Owner or Engineer to pay or to see to the payment of any moneys due any such Subconteactor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regu lations. D. Contractor shall be solely responsible for schedul�ing and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract wiih Contractor. E. Conlractor shall require all Subcontractors, Suppliers, and such other individuals oe entities performing or furnishing any of the Work• to communicaie with Engineer through Contractor. .��...�.�._� �wsw�. �.��..mw_,.�.. �_.m. ��..... Exhibit D File 6041 Page 38 of 139 1 i 1 �' �' 1 � � ' �' � � P. The divisions and sections ofthe Specifications and the identifications of any Drawings sha11 not control Contractor in dividing the Work among Subcontractors or Suppliers or delineatin; the Work to be performed by any specific trade. G. All Work performed for Contractor by a Subcontractor or Supplier will be pursuant to an appro- priate agreement between Contractor and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents (including but not limited to these General Conditions) foe the benefit of Owner and lEngineer. Each subcontract agreement shall preserve and protect the rights of the Owner and the Architect/Engineer under the Contract Documents (including but not limited to these General Conditions) with respect to the Work to be performed by the Subcontractor so that subcontracting will not prejudice the rights of the Owner and the Architect/Engineer. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub- subcontractors. The contractor shall make available to eacli proposed Subcontractor, prior to 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. Whenever any such agreement is with a Subconcractor or Supplier who is listed as an additional insured on the property insurance provided in Paragraph 5.06, the agreement between the Contractor and the Subcontractor or Supplier will contain provisions whereby the Subcontractor or Supplier waives all rights against Owner, Contractor, and Engineer„ and all other individuals or entities identifed in the Supplementary Conditions to be listed as insureds or additional insureds (and the officers, direclors, partners, employees, agents, consultants and subcontractors of' each and any of them) for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils oe causes of ]oss covered by such policies and any other property insurance applicable to tlie Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, Contractor will obtain the same. a-I. The Contractor is solely res}�onsible for making payments properly to the Contractor's Subcontractors on the Project. During performance of the Work, the Contraccor shall comply wilh Yhe following additional rules regarding Subcontractor payments: The Contractor shall submit, beginning witl� the Second Application and Certificate for Payment, a Subcontractor Payment Repoit (the "Report") with each Application and Ceitif icate for Payment, along with partial waivers of liens for all Work included in the application for payment. The Report shall show all payments made to date by the Contractor (plus existing retainage) to each Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by the Owner. Pay applications wil] not be reviewed or certified by the Architect to the Owner without accoinpanying partial lien waivers after the first Certificate ror payment. With each Application for Payment, the Contractor shall certify that there are no mechanics' or materialmen's Liens outstanding at the date of the Application for Payment, and that all bills due with respect to the Work have been paid to date, and that there is no knowm basis for filing of any liens against the Surety or the Owner in connection with the Work. Upon completion by the Contractor orthe construction of the project, but prior to final payment to the Contractor, the Contractor shall deliver to the Owner conditional releases of all liens, which shall identify the remaining sums to be paid pending receipt of fnal payment. The conditional releases of liens, upon final payment by the Owner, shall rlease the Owner of all liens, and of all rights to claim any lien, from all manufacturees, 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 f'or and indicating that the Ower is released from all such claims. As an alternative to the Report, the Contractor may furnish Affidavits of Payment Received with the Application and Certificate for Payment, which affidavits shall be executed by each Subcontractor owed money and paid during the previous progress payment period for work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OP PAYMENT RECEIVED SHALL BE A COND11'ION PRECEDENT TO PAYMENT ON ANY APPLICATION. �_� _.LL�._..�...m.�.wm�.n__._... ...w....... Exhibit D File 6041 Page 39 of 139 Provided that the Owner has been notifed by written coorespondence (a lien notice) Trom any manufacturer, material-men, or subcontractor furnishing services or materials for the project that an outstanding debt is owed, the Owner shall ensure that the Contractor is notified of such notice within ten (10) days of receipt of such notice. The Contractor shall ensure that resolution has been achieved for each written notice filed with the Owner, and provide sufficient written documentation to the Owner that payment has been rendered, or a resolution has been achieved that is satisfactory to the Owner. (1) If, for any reason, the Contractor is withholding pay►nent to a Subcontractor due to a dispute or other problem with � ' 1' `� 1, ' � � ' � � ' � ' ` � �' ' performance, tl�e Contraclor shall note the amount withheld and tl�at payment is in dispute. The Owner may require the Contractor to document and verify the dispute or other problem in question. (2) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to Paragraph 14.02(b) of the General Conditions, should i: 3ppear from the Report, stacements 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 ini'ormation regarding payment of any Subcontractor; or (iii) the Contractor has otherwise failed to make payments properly to any Subcontractor. (3) THE CONTRACTOR SHALL NOT HAVE ANY R1GHT TO MAKE A CLAIM FOIt ADDITIONAL TIM� OR ADDITIONAL COMPENSATION AS A RESULT OF THE OWNER'S OR ARCH 1 TECT/EN G 1NEBR'S ENFORCEMENT OF THIS SUBPARAGRAP]H 6.06(H). NO PROVISION OP TI'1TS SUBPARAGRAPH OR ANY OF THE CONTRACT DOCUMICNTS SHALL BE CONSTRUED TO CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY SUBCONTRACTOR AND EITI-3ER THE OWN�R OR THE ARCHITECT/ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY SUBCONTRACTOR OR ANY OTHER PGRSON OR ENTITY A THIRD PARTY BENCPICIARY OF THE CONTRACT BETWEEN TI�C OWNER AND THE CONTRACTOR. , 6.07 Paier:f Fees and Royaldies A. Owner shall pay all license fees and royalties and assume all costs incident to the use in the performance of tlie Work or tlle incorpoi•ation in the Work of any invention, design, process, product, or device which is the subject of patenY righYs or copyrights held by others. lf a — �.._._.. ....�.e.�,�.....�...___ _��e��._. m__ Exhibit D parlicular invention, design, process, product, or device is specified in the Contract Documents for use in the perfor►nance of tlie Work and if to the actual knowledge of Owner or Engineer its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence oi such rights shall be disclosed by Owner in the Contract Documents. B. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and ]Engineer, a�id the officers, directors, parcners, employees, ager�ts, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringe- ment of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorpo- ration in the Work of any invention, design, process, product, or device not specified in the Contract Documents. 6.08 Per�teifs A. The ArchitecdEngineer will apply and arrange for ihe issuance of tlie City of Denton Building Permit. Unless otherwise provided in the Supplementary Conditions, Owner shall apply for, obtain and pay for all construction permits and licenses. Owner shall assist Owner, obtain such permits and licenses. Ownee shall pay all governmenta] charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Agreement. Owner shall pay all charges of utility owners for connections for providing permanent service to the Work. 6.09 Luws a�rd Re�ululiars A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor Engineer shall be responsible for monitoring Contractor's compliance with any Laws or Regulations. B. If Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractoi• shall assume full responsibility, bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attoi•neys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work, attributable costs of the correction of the Work and any other Work in place that may be File 6041 Page 40 of 139 � t � � � . .. � 1 � �' ` ' � � • adversely affected by the corrective work. However, it shall not be Contractor's primary responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, but this shall noc relieve Contractor of Contractor's obligations under Paragraph 3.03. C. Changes in Laws or 12egulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance of the Work shall be the subject of an adjustment in Contract Price or Contract Times. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph ] 0.05. 6.10 Taxes The Owner qualifies for exemptior� trom state and local sales and use taxes, pursuant to the provisions of Section ] 5].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 properiy being irnproved undee 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 che job site. The Contractor shall issue an exemption certificate in lieu ofthe tax on such purchases. 6.l 1 Use of Si[e �u7d Oi/ter Are�rs The Contractor shall provide the Owner and the Engineer access to the Work in the preparation and and progress wherever ]ocated during the course of construction. A. Limitation on Use of Site and Other Areas , ]. Contractor shall confine construction equip- ment, the storage of materials and equipment, and the operations of workers to tlle Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to tl�e owner or occupant tliereof, or of any adjacent land or areas resulting rrom the perfonrance of tl�e Work. 2. Should any claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such otl�er party by negotiation or otherwise resolve the claim by arbitration or otl�er dispute resolution proceeding or at law. 3. To the fullest extent permitted by Laws and Rebulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attomeys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relatit�g to any claim or action, legal or equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified hereunder to the extent caused by or based upon Conteactor's performance of the Work. B. Renroval of Debris During Performance of 11�e Work: During the progress of the Work Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposa] of such waste materials, rubbish, and other debris shall conibrm to applicable Laws and Regulations. The Contractor shall be responsible for all spoil removals, and any excess soil that will require removal. The Contractor shall coordinate removal and disposal with the Owner. C. Cleaning.• Prior to Substantial Completion of the Work Contractor shall clean the Site and the Work and make it ready for utilization by Owner. At the completion of the Work Contractor- shall remove from the Site all too]s, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. lf 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. D. L.oading S1ruclzrre.r: Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of tlie Work or adjacent proper- ty to stresses or pressures that will endanger it. ExhibitD ��... p�_a��_a�=..w� _,u _.._ �.�_� w.W File 6041 Page 41 of 139 ,i � � �, � , ,, � � ,� ,� � � . � G.12 Record Docrinre�ris A. Conlractor shall maintain in a safe place at the Site one record copy of all Drawings, Specifcations, Addenda, Change Orders, Work Change Directives, Field Orders, and written interpre[ations and clarifications in good order and annotated to show changes made during construction. These record documents together with all approved Samples and a counterpar-t of all approved Shop Drawings will be available to Engineer for reference. Upon completion ofthe Work, these record documents, Samples, and Shop Drawings will be delivered to Engineer for Owner. 6.13 Safery arsd Proteclion A. Conteactor shall be solely responsible for initiating, maintaining and supervising all safety precau- tions and programs in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who may be affected by the Wark; 2. all the Wark and materials and equipment to be incorporated therein, whether in storage on or off the Site; and 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities, and Underground Pacilities not designated for removal, relocation, or replacement in the course of construction. B. Contractor shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. C. All damage, irijuiy, or loss to any property referred to in Paragraph 6. ] 3.A.2 or G.l 3.A.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of tliem may be liable, shall be remedied by Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of Owner or Engineer or , or anyone employed by any or them, or anyone for whose acts any orthem may be liable, and not attributable, direct]y or indirectly, in whole or in part, to the 1'ault or negligence of Contractor or any Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any of them). D. Contractor's duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is comple[ed and Engineer has issued a notice to Owner and Contractor in accordance with Paragraph 14.07.B that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). 6.14 Safely Represenlative A. Contractor shall designate a qualified and experienced safefy representative at the Site whose duties and responsibilities shall be the prevention af accidents and the maintaining and supervising of safety precautions and programs. The contractor's site foreman WII� be responsible for safety. 6.15 Hazard Com►nuJticatio►r Progran:s A. Contractor shall be responsible for coordi- nating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations. 6.16 En:erge�:cies A. In emergencies affecting the safety or protec- tion of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent threatened damage, injury, or loss. Contractor shall give Engineer prompt written noYice if Contractor believes that any significant changes in tl�e Work or variations irom the Contract Documents have been caused thereby or are required as a result thereof. If Engineer and Owner determines that a change in the Contract Docume�7ts is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued. 6.17 SIlO�J DI'UW%11gS Cllt(I SQi11�JIeS A. Contractor shall submit Shop Drawings and Samples to ingineer for review and approval in accordance with the acceptable Schedule of Submittals (as required by Paragraph 2.07). Each submittal will be identified as Engineer may require. _.__._. .� � .��._m �.... �. �. �. _.�.u��_� � �.�... �_._.r.._ . � �....�..�....... �_�.� ,. Exhibit D File 6041 Page 42 of 139 � 1 ! � '•, �' 1 � �' ' � � • 1. Shop Drawings a. Submit number of copies specified in the General Requirements. b. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to sl�ow Engineer the services, materials, and equipment Contractor proposes to provide and to enable �ngineer to review the information for the limited purposes required by Paragraph 6. ] 7.D. 2. Sa��ple.s: Contractor shall also submit Samples to Gngineer for review and approval in accordance with the acceptable schedule of Shop Drawings and Sample submittals. a. Submit number of Samples specified in the Specifications. b. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engineer to review the submittal for the limited purposes required by Paragrapl� 6.17.D. B. Where a Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals , any related Work performed prior to Engineer's review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor•. C. Submittal Procedures 1. Before submitting each Shop Drawing or Sample, Contracior shall have determined and verified: a. all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; b. the suitability of all materials with respect to intendecl use, , rabrication, shipping, handlirlg, storage, assembly, and installation pertaining to the pei•formance of the Work; c. all information relative to Cantractor's responsibilities for means, methods, techniques, sequences, and pi-ocedures of construction, and safety precautions and programs incident tl�ereto; and d. shall also have rcviewed and coordinated each Shop Drawing or Sample with otl�er Shop Drawings and Samples and with the requirements of the Work and the Contracl Documents. 2. Each submittal shall bear a stamp or specifc written certification that Contractor has satisfied Contractor's obligations under the Contract Documents with respect to Coniractor's rev.iew and ap,proval of that submittal. 3. With each submittal, Contractor shall give Engineer specific written notice of any variations, that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawing's or Sample Submittal; and, in addition, by a specific notatio» made on each Shop Drawing or Sample submitted to Engineer for review and approval of each such variation. D. Engineer's Review l. Engineer will provide timely review of Shop Drawings and Samples in accordance with the Schedule of Submittals acceptable to Engineer. Engineer's review and approval will be only to deterrnine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. Engineer's review and approval will not extend to means, methods, tecl�niques, sequences, or procedures of construction (except where a parficular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval orthe assembly in which the item functions. 3. Engineer's review and approval shall not relieve Contractor from responsibility for any variation fi�om the requirements of the Contract Documents unless �:ca��E�°�c,tia�' has ccr��lied ti�fi�l' t�e req�ir�ers7c;r�fs ui` t7��r��;��4a��lr ' 6.17.C.� . <�z�d i:M�a�;inccr ��rrs �av�� vx'itt�.r� ��5��•r�vai c��each su�17 vari�Citatt l�y &;(rc.ti�ific w�-i[lc;�r tacatai�t�s� thereof incorporated in or accompanying the Shop Drawing or Sample. �ngineer's eeview and approval shall not re]ieve Contractor from responsibility for complying with the requirements of Paragraph 6.17.C.1. E. Res:�bmillu! Procedu�•es �., �---� _ ,� .m _��_��...__ � m.. Exhibit D File 6041 Page 43 of 139 �xhibit D CITY OF DENTON G�N�RAL CONDITIONS F012 WATER PROJ�CT CONSTRUCTION 1. Contractor shall make corrections required by Cngineer and shall return the required number of correcfed copies oT Sliop Drawings and suUmit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous submittals. G.18 Conliirui�rg the Work A. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes or disagreements with Owner. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by Paragraph 15.04 or as Owner and Contractor may otherwise agree in writing. 6.19 Conlraclor's Gerteral Warrunly urtd Guaranlee A. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Docu- ments and will not be defective. Engineer and its Related Entities shall be entitled to rely on representation of Contractor's warranty and guarantee. B. Contractor's warranty and guarantee hereunder excludes defects or damage caused by: 1. abuse, modification, or improper maintenance or operation by persons other than Contractor, Sub- contractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. C. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work fhat is not in accordance with the Contract Documents or a release of Contractor's obligation to perform the Work in accordance with the Contract Documents: 1. observat►ans by Engineei•; 2. recommendation by �ngineer or payment by Owner of any progress or final payment; 3. the issuance of a certificate of Substantial Completion by Engineer or any payment related tl�ereto by Owner; 4. use or occupancy of the Work or any part thereof by Owner; w.... �—�......�,__.��... �.��_�..._ �...._ ExhiUit D 5. any review and approval of a Shop Drawing or Sample suUmittal or the issuance of a notice of acceptabil- ity by Engineer; 6. any inspection, test, or approval by others; or 7. any correction of defective Work by Owner. 6.20 l�t de►itn ifrcu lio rt A. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify, defend, and hold harmless Owner and Cngineer, and the officers, directors, partners, cmployees, agents, consultants and subcontractors of each and any of ihem from and against all claims, lawsuits, judgments, Cnes, penalties, costs and expenses for personal injury (including death), losses, and damages, or other harm or violations for which recovery of damages, fines, or penalities is sought, suffered by any person or persons (including but not limited to all fees and charges of enginecrs, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the perforrnance of the Work, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itsel�, incl�d- ing the loss of use resulting therefrom - caused by any 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 oi the contractor, its officers, agents, employees, subcontractors, or sub-contractors and respective ofGcers, agents, or representatives, or any other persons or entities for which the contractor is legally responsible in the performance of ihis contract, any -_; except that the indemnity provided for in this paragraph shall not apply to any liability resulting Trom the sole negligence or fault of the owner, its of�cers, agents, employees or separate contractors, or of the architect/engineer, and in the event of joint and concurrent negligence or fault of the contractor, ihe owner, and the architect/engineer, responsibility and indemnity, if any, shall be apportioned in accordance witli the law oT the State of Texas, witl�out, however, �vaiving any governmental immunity available to the owner under Texas law �and without waiving any defenses �of the parties under Texas law: The provisions of tliis 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. File 6041 Page 44 of 139 �xhibit D CITY OF D�NTON G]CN�RAL CONDTTIONS FOR WATER PROJECT CONSTRU.CTION B. In any and all claims againsl Owner or En�inecr or any of thei►• respective consullanis, agents, of�cers, direclors, partners, or cmployees by any employee (or the survivor or personal representativc of such employee) of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them 4o perform any of the Work, or anyone for whose acts any of tliem may be liable, thc indemnifcation obligation under Paragraph 6.20.A shall not be limited in any w�ay by any limitation on the amount or type of damages, compensation, or benefits payable by or for Contraclor or any such Subcontractor, Supplier, or other individual or entity under workers' compensation acts, disability bcnefit acts, or other employee benefit acts. C. Indemnification under Paragraph 6.20 shall include, but is not limited to, liability wl�ich 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 the occupational safety and health of workers. The Contractor specifically agrees to comply with the above-mentioned la�vs and regulations in the performance of the Work by the Contractor and that the obligations of the Owner, its ofGcers, agents, and employees, and the Architect/Engineer under the above mentioned laws and regulations are secondary to those of the Contractor. D. Deleted by Intention. 6.21 Delegalioit of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. Contractor shall not be required to provide professional services in violation of applicable law. B. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, Owner and Engineer will specify all perfonnance and design criteria that such seryices must satisfy. Contractor shall cause such services or certifcations to be provided by a properly licensed professional, whose signature and seal shall appear on all drawings, calculations, specifications, cerl;ifications, Shop Drawings and other submirials prepared by such professional. Sliop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to En�ineer. C. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy and completeness of the services, cerfifications or approvals pert'ormed by such design professionals, provided Owner and Engineer have specified to Contractor all performance and design criteria that such services must satisfy. D. Pursuant to this Paragraph 6.21, Engineer's review and approval of design calculations and design drawings will be only for the limited purpose of checking for confonnance with perfonnance and design criteria given and the design concept expressed in the Contract Documents. Engineer's review and approval of Shop Drawin�s and other submitta]s (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.17.D.1. E. Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. ARTICLC 7- OTHER WORK AT THE SITC 7.01 Relaled Work al Si1e A. Owner may perform construction, or operations, or other work related to the Project at the Site with Owner's employees, and to award separate contracts in connection with the 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, or have other work performed by utility owners. If such other work is not noted in the Contract Documents, then: ]. written notice thereof wil] be given to Contractor prior to starting any sucli other work; and 2. if Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times that should be allowed as a result of such other work, a Claim may be made tl�erefor as provided in Paragraph ] 0.05. B. Contractor shall afford each other contractor who is a party to such a direct contract, eacli utility owner and Owner, if Owner is performing other work with Owner's employees, proper and safe access to the Site, a reasonable opportunity for the introduction and storage of materials and equipment and ihe execution or such otl�er work, and shall properly coordinate the Work with theirs. ExhibitD _ ��_...�__�w�..� ��._�... .�._...� File 6041 Page 45 of 139 1 � 1' � 1 • , ,•' ' !; • • Contractor shall do all cutting, fitting, and patching of the Work t]�at may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. ContracYor shall not endanger any work of others by cutting, excavating, or other�vise altering their work and will only cut or alter their work with the written consent of �ngineer and the others wliose work will be affected. The duties and responsibilities of Contractor under this Paragraph are for the Uenefit of sucl� utility owners and other contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. C. lf the proper execution or results of any part of Contractor's Work depends upon work performed by others under this Article 7, Contractor shall inspect such other work and promptly report to Engineer in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor's Work. Contractor's failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor's Work except for latent defects and deficiencies in such other work. 7.02 Coordi�ralion A. If Owner intends to contract witl� others for the performance of other work on the Project at the Site, the following will be set forth in Supplementary Conditions: 1. the individual or entity who will have authority and responsibility for coordinatior� of the activities among the various contractors will be identified; 2, the specific matters to be covered by such authority and responsibility will be itemized; and 3. the extent of such authority and responsibilities will be provided. B. Unless otherwise provided in tlie Supplementary Conditions, Owner sliall have sole authority and responsibility for such coordination. 7.03 Legu! Rclalior:slrips A. Paragraphs 7.01.A and 7.02 are not applicable ror utilities not under the control of Owner. B. Eacl� other direct contract of Owner under Paragraph 7.O1.A shall provide that the other contractor is liable to Owner and Contractor for the reasonable direct delay and disruption costs incurred by Contractor as a result of the other contractor's accions or inactions. C. Contractor shall be liable to Owner and any other contractor for the reasonable direct delay and disruption costs incurred by such other contractor as a result orContractor's action or inactions. ARTICLE 8 - OWNGR'S RESPONSIBILITIES 8.01 Cornn:ur�icaliorrs ta Cor8lrac'or A. �xcept as otherwise provided in these General Conditions, Owner shall issue all communications to Contractor through Engineer. 8.02 Replacen:eer� of E,rgi�teer A. In case of termination of the employment of Engineer, Owner shall appoint an engineer to whom Contractor makes no reasonable objection, whose status under the Contract Documents shall be that of the former Engineer. 8.03 Furnislr Data A. Owner shall promptly furnish the data required of Owner under the Contract Documents. 8.04 Pay Wlaerr Due A. Owner shall make payments to Contractor wl�en they are due as provided in Paragraphs 14.02.0 and 14.07.C. 8.05 Lp1tfIS [lIP[I EIlSeN8C171S� Reporls arrd Tesls A. Owner's duties in respect of providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.01 and 4.05. Paragraph 4.02 refers to Owner's identifying and making available to Contractor copies of reports of explorations and tests of subsurface conditions and drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site that have been utilized by Cngineer in preparing the Contract Docum�nts. . , 8.07 C/euorge Orders A. Owner is obligated to execute Change Orders as indicated in Paragraph 10.03. Exhibit D �.W�. _ »�.�..�� _...... ��._..� _�.. File 6041 Page 46 of 139 � 1 �' � 1 • ,! ' � , � • � 8.08 lnspeclions, Tesls, a�rdApprovals A. Owner's responsibility in respect to cerfain inspections, tests, and approvals is set forih in Paragraph ] 3.03.I3. 8.09 LlllilPldP%0l1S O1P OWIPCI''S RCSfIO1PSfGlIlP%L'S A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and I2egulations applicable to the performance oi the Work. Owner will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. 8.10 Urrdisclosed Hazardous Eorvirarme�rPal Co�rdilio�r A. Owner's responsibility in respecY to an undis- closed Hazardous Environmenta] Condition is set forth in Paragraph 4.06. 8.l 1 Evider,ce of FinancialArrmtgersrerrPs A. If and to the extent Owner has agreed to furnish Contractor reasonable evidence that financial arrangements have been made to satisfy Owner's obligations under the Contract Documents, Owner's responsibility in respect thereof will be as set forth in the Supplementary Conditions. • ARTICLE 9 - CNGINCER'S STATUS DURING CONSTRUCTION 9.01 Owrrer'.s RepresenPalive A. Engineer will be Owner's representative during the construction period. The duties and responsi- bilities and the limitations of authority of Engineer as Owner's representative during construction are set forth in the Contract Documents and will not be changed without written consent of Owner and Engineer. 9.02 Yisils lo Sile A. Engineer will make visits to the Site at inter- vals appropriate to the various stages of construction as Engineer deems necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of Contractor's executed Work. Based on ini'ormation obtained during such visits and observations, Cngineer, for the benefit of Owner, will deten�ine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will not be required to make exhaustive or continuous inspections on tl�e Site to check the quality or quantity orthe Work. Engineer's efforts will be directed toward providing for Owner a greater degree of confdence that the completed Work will conform generally to the Contract Documents. On the basis of sucl� visits and observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defective Work. B. JGngineer's visits and observations are subject to all the limitations on Engineer's authority and responsibility set forth in Paragraph 9.09. Particularly, but without limitation, during or as a result of lEngineer's visits or observations of Contractor's Work Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. 9.03 Projecl Represenlative A. lf Owner and Engineer agree, Cngineer will furnish a Resident Project Representative to assist Cngineer in providing inore extensive observation of the Work. The authority and responsibilities of any such Resident Project Representative and assistants will be as provided in the Supplementary Conditions, and limitations on the responsibilities thereof will be as provided in Paragraph 9.09. If Owner designates another representative or agent to represent Owner at the Site who is not Engineer's consultarit, agent or employee, the responsibilities and authority and limitations thereon of such other individual or entity will be as provided in the Supplementary Conditions. 9.04 Autlrurized Vrrrialioo�s rn Work A. Engineer may authorize minor variations in tlie Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design c��ice��st of the compl�.t�d I��°��c�t ��ti,a ('unetic�i�ing whole as in��ed by the �C�s��f�a�t S�c��ri��is. 'I7sese may be accomplished by a Field Order and will be binding on Owner and also on Contractor, who shall perform the Work involved promptly. If Owner or Contractor believes that a Pield Order justifies an adjustment in the Contract Price or ConU�act Times, or both, and the parties are unable to agree on entitlement to or on the amount or extent, if any, of any ExhibitDdv. �.��_. ��.��_.�,._ u_�..�.... �_�,__ File 6041 Page 47 of 139 � � 1 � �' 1 ;• ! � � •, such adjustment, a Claim may be made therefor as provided in Paragraph ]0.05. 9.05 Rejecling Defedive Work A. Engineer will have authority to reject Work which Engineer believes to be defective, or that Engineer believes will not produce a completed Project that conforms to the Contract Documents or that will prejudice the integrity ofthe design concept ofthe completed Project as a functioning whole as indicated by the Contract Documents. Cngineer will also have authority to require special inspection or testing of tiie Work as provided in Paragraph 13.04, whether or not the Work is fabricated, installed, or completed. 9.06 S/top Drawiergs, Clrmzge Orders arrd Payet:erals A. In connection with Engineer's authority, and limitations thereof, as to Shop Drawings and Samples, see Paragraph 6.17. B. In connection with Engineer's authority, and limitations thereof, as to design calculations and design drawings submitted in response to a delegation of professional design services, if any, see Paragraph 6.21. C. In connection with Engineer's authority as to Change Orders, see Articles 10, 11, and 12. D. In connection with Engineer's authority as to Applications for Payment, see Article 14. 9.07 Delerr7riaraliorts for Ua:it Price Work A. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor. Engineer will review with Contractor the Engineer's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer's written decision thereon will be f nal and binding (except as modified by Engineerto reflect changed factual conditions or more accurate data) upon Owner and Contractor, subject to the provisions of Paragraph 10.05. 9.08 Decisiorzs on Requiremerrls of CoesPrucl Docume�rts ar:d Acceplabi/iry of Work A. Engineer will be the initial interpreter of the i•equirements of the Coi7tract Documents and judge of the acceptability of Yhe Work thereunder. All matters in question and other matters between Owner and Contraceor arising prior to the daYe fnal payment is due relating to the accepiability of the Work, and the interpretation or the _ _m _�.w��.M.M.�. Exhibit D requirements of the Contract Documents pertaining to the perfonnance of the Work, will be referred initially to Engineer in writing within 30 days of the event giving rise to tl�e question B. Engineer will, with reasonable promptness, render a written decision on the issue referred. If Owner or Contractor believe that any such decision entitles them to an adjustment in the Conteact Price or Contract Times or both, a Claim roay be made under Paragraph 10.05. The date of �ngineer's decision shall be the date of the event giving rise to the issues referenced for the purposes of Paragraph 10.O5.B. C. �ngineer's written decision on the issue referred will be final and binding on Owner and Contractor, subject to the provisions of Paragraph 10.05. D. When functioning as interpreter and judge under this Paragraph 9.08, Engineer will not show partiality to Owner or Contractor and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity. 9.09 Linrllulior8s aii Er:girreer's Aullaoriry ar:d Resporrsebilities A. Neither Engineer's authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by �ngineer in good faith either to exercise oe not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by Engineer shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by Engineer to Contractor, any Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, teclmiques, sequences, or procedures of construction, or the safety precautions and pro�rams incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Engineer will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. C. Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractor, any Supplier•, or of any other individual or entity performing any of the Work. D. Engineer's review ofthe fnal Application for Payment and accompanying documentation and all mainte- nance and operating instructions, sehedules, guarantees, File 6041 Page 48 of 139 � � 1 �' �''1 � � '�' ' 0 Uonds, cerlificates of inspection, tests and approvals, and other documentation required to be delivered by Paragraph 14.07.A will only be to determine general]y that their content complies with tl�e requirements of, and in the case of certificates oi' inspections, tests, and approvals that the results certifed indicate compliance with the Contract Documents. E. The limitations upon authority and responsibil- ity set forlh in this Paragraph 9.09 shall also apply to, the Resident Yroject Representative, if any, and assistants, if any. ARTICLE ]0 - CNAIVGES IN TH� WORK; CLAIMS 10.01 Aul/roriaed C/rarrges en i/re Work A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the Work by a Change Order, or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved which will be performed under the applicable conditions ofthe Contract Documents (except as otherwise specifically provided). B. lf Owner and Contractor are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price or Contract Times, or both, that should be allowed as a result of a Work Change Directive, a Claim may be made therefor as provided in Paragraph 10.05. 10.02 Urraulltorized Clrarrges i�t Ilre Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.16 or in the case of uncovering Work as provided in Paragraph 13.04.8. ] 0.03 ExecuPiorr of C/�a�rge Order,s A. Owner and Contractor shall execute appropri- ate Change Orders recommended by Engineer covering: ]. chan�;es in the Work which are: (i) ordered by Owner pursuant to Paragraph lO.OI.A, (ii) required because of acceptance of defective Work under Paragraph Exhibit D �� 13.08.A or Owner's correction of defective Work under Paragraph 13.09, or (iii) agreed to by the parties; 2, chan�es in the Contract Price or Contract Times which are abreed to by the parties, includin�; any undisputed sum or amount of time for Work actually performed in accordance with a Work Cl�ange Directive; and 3, changes in the Contract Price or Contract Times �ahich embody the substance of any written decision rendered by Engineer pursuant to Paragraph ]0.05; provided that, in lieu of executing any such Change Order, an appeal may be taken Trom any such decision in accor- dance with the provisions of the Contract Documents and applicable Laws and Regu]ations, but during any such appeal, Contractor shall carry on the Work and adhere to the Progress Schedule as provided in Paragraph 6.18.A. 10.04 NoFifrcalioor lo Surery A. lf notice of any change affecting the geneeal scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times) is required by the provisions of any bond to be given to a surety, the giving of any such notice will be Contractor's responsibility. The amount of each applicable bond will be adjusCed to reflect the effect of any such change. ] �.0$ CllfllPtS A. E»gineer's Decision Requi�•ed: All Claims, except those waived pursuant to Paragraph 14.09, shall be referred to the Cngineer for decision. A decision by Engineer shall be required as a condition precedent to any exercise by Owner or Contractor of any rights or remedies either may otherwise have under the Contract Documents or by Laws and Regulations in respect of such Claims. B. Nolice: Written notice stating the general nature of each Claim, shall be delivered by the claimant to �ngineer and the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto. The responsibiliry to substantiate a Claim shall rest with the party making the Claim. Notice of the amounY or extent of tlie Claim, with supporting data shall be dejivered to Yhe Engineer and the o�her par[y to the Contract within 60 days after the start of such event (unless Bngineer allows additional time for claimant to submit additional or more accurate data in support of such Claim). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph ] 2.O I.B. A Claim for an adjustment iii Contract Time shall be prepared in accordance with the provisions of Paragraph 12.02.B. Each Claim shall be accompanied by claimant's File 6041 Page 49 of 139 � 1 � 1 � �= 1 • � ' � � �" written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The opposing party shall submit any response to Engineei• and lhe claimant within 30 days after receipt of the claimant's ]ast submittal (unless Engineer allows additional time). C. Engineer's Aclion: Engineee will review each Claim and, within 30 days after receipt ofthe last submittal of the claimant or the last submittal of the opposing party, if any, take one of the following actions in wricing: 1. deny the Claim in whole or in part, 2. approve the Claim, or 3. notify the parties thaC the Engineer is unable to resolve the Claim if, in the Engineer's sole discretion, ii would be inappropriate for the Engineer to do so. For purposes of further resolution of the Claim, such notice shall be deemed a denial. b. In the event that Engineer does not take action on a Claim within said 30 days, the Claim shall be deemed denied. E. Engineer's written action under Paragraph 10.O5.0 or denial pursuant to Paragraphs 10.O5.C.3 or 10.O5.D will be final and binding upon Owner and Contractor, unless Owner or Contractor invoke the dispute resolution procedure set forth in Article 16 within 30 days of such action or denial. F. No Claim for an adjustment in Contract Price or Contract Times will be valid if not submitted in accordance with this Paragraph ] 0.05. ARTICLE 11 - COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK 11.01 Cosl of Ure Wark A. Cosls lnclzrded: The term Cost of the Work means the sum of all costs, except those excluded in Paragraph I1.Ol.B, necessarily incurred and paid by Co,ntractor in the proper performance of the Work. When the value of any Work covered by a Cl�ange Order or when a Claim for an adjustmenY in Contract Price is determined on the basis of Cost of the Work, the costs to be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the Claim. Except as otherwise may be agreed to in writing by Owner, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items, and shall iiot include any of the costs itemized in Paragraph ] 1.O1.13. 1. Payroll costs for employees in tl�e direct employ oi Contractor in the performance of the Work under schedules of job classifications agreed upon by Owner and Contractor. Such employees shall include, without ]imitation, superintendents, foremen, and other personnel employed full time at the Site. Payroll costs for employees not employed full time on tl�e Work shall be apportioned on the basis of cheir time spent on the Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits, which shall include social securiiy contributions, unemployment, excise, and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses ofperforming Work outside of regular working hours, on Saturday, Sunday, or ]egal holidays, shall be included in the above to the extent authorized by Owner. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transpoitation and storage thereof, and Suppliers' field services required in connection therewith. All cash discounts shall accrue to Contractor unless Owner deposits funds with Contractor with which to make payments, in which case the cash discounts shall accrue to Owner. All trade discounts, rebates and refunds and retums from sale of sueplus materials and equipment shall accnae to Owner, and Contractor shall make provisions so that they may be obtained. 3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by Owner, Contractor shall obtain competitive bids from subcontractoes acceptable to Owner and Contractor and shall deliver such bids to Owner, who will then determine, with the advice of Engineer, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor's Cost of the Work and fee shall be determined in the same manner as Contractor's Cost of Yhe Work and fee as provided in this Paragraph 11.01. 4. Costs of special consultants (including but not �limited to Engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services specifically related to the Work. 5. Supplemental costs including the following: a. The proportion or necessary transportation, travel, and subsistence expenses of Contractor's �__...._ �. �., e.�....��_ .�.,.._� � __ Exhibit D File 6041 Page 50 of 139 � 1' � 1 � � 1 � � , � � employees incurred in discharge of duties connected willi the Work. b. Cost, including transportation and mainte- nance, of all materials, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, and hand tools not owned by the workers, which are consumed in the perfor- mance of the Work, and cost, less ma►-ket value, of sucl� items used but not consumed which remain the property of Contractor. . c. Rentals of all construction equipment and machinery, and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or pares shall cease when the use thereof is no longer necessary for ihe Work. d. Sales, consumer, use, and other similar taxes related to tl�e Work, and for which Contractor is liable, imposed by Laws and Regulations. e. Deposits lost for causes other than negligence or Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses. f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Coi7tractor in connection with the performance of the Work (except losses and damages within the deductible amounts of property insurance established in accordance wiYh Paragraph 5.06.D), provided such losses and damages have resulted 1'rom causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of Owner. No such losses, damages, and expenses shall be included in tl�e Cost of the Work for the purpose of determining Contractor's fee. g. The cost of utilities, fuel, and sanitary facilities at the Site. _ _.,�_..�.�..�..�.�_.�m._...�.g.__..M_._...u..�...._._.__ _�u�.. "�.v._�._ Exhibit D h. Minor expenses such as telegrams, long distance telephone calls, telephone service at the Site, expresses, and similar petty cash items in connection witl� the Work. i. The costs of premiums for all bonds and insui•ance Coniractor is required by the Contract Documents to purchase and maintain. B. Costs Excltrded: The tenn Cost of the Work shall not include any ofthe following items: l. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnerships and sole proprietorships), general managers, safety managers, engineers, architects, estimators, attor- neys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor's principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 11.O1.A.1 or specifically covered by Paragraph 11.OI.A.4, all of which are to be considered administrative costs covered by the Contractor's fee. 2. Expenses of Contractor's principal and bi•anch offices other than Contractor's of�ice at the Site. 3. Any part of Contractor's capital expenses, including interest on Contractor's capital employed for the Work and charges against Contractor for delinquent pay- ments. 4. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any ofthem or for whose acts any ofthem may be liable, including but not limited to, the correction of defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraphs 1].O1.A and ] 1.O1.B. C. Cont�•aclor's Fee: When all the Work is per�`�J�LLr��d on the l��:�is oi' cost-plus, �'�s�iractor's fee shall be ci��c;�-��ined as ��t forth in the tl�rccment. W,hen the value of any Work covered by a Change Order or wl�en a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, Contractor's fee shall be deYermined as set forth in Paragrapl� 12.0 ].C. D. Documenlation: Whenever the Cost of the Work for any purpose is to be determined pursuanY to 1'aragraphs ]].OI.A and 1 1.Ol.B, Contractor will establish File 6041 Page 51 of 139 / � 1 � � • � ' � �' � � and maintain records tliereof in accordance with generally accepted accounting practices and submit in a form acceptable to Cngineer an itemized cost breakdown together with supporting data. 11.02 Allowur:ces A. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause tl�e Work so covered to be perfonned for such sums and by such persons or entities as may be acceptable to Owner and Engineer. B. Cash Al1oH�ances 1. Contractor agrees that: a. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment requieed by the allowances to be delivered at the Site, and all applicable taxes; and b. Contractor's costs for unloading and handling on the Site, labor, installation , overhead, profit, and other expenses contemplated for the cash allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. C. Contingency Allowance l. Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. D. Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reilect actual amounts due Contractor on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. l 1.03 Unit Price Work A. Where the Contract Documents provide that all or part of tlie Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price W ork an amount equal to the sum of the unit price for each separately identified item of lJnit Price Work times the estimated quantity of each item as indicated in the Agree- ment. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison or Bids and determining an initial Contract Exhibit D � �p�_ .v._.u..._ ��_..�,_. Price. Deteraninations of the actual quantities and classifications of Unit Price Work performed by Coniractor �vil] be made by Enbineer subject to the provisions oT Paragraph 9.07. C. Eacl� unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor's overhead and profit for each separately identified item. D. Owner or Contractor may make a Claim for an adjustment in the Contract Price in accordance with Paragraph 10.05 if: ]. the quantity of any item of Unit Price Work ��e��ar°��cs3 t�y �r��tr�c:t�rr dit�f��°s materially and signifi- �a�ni,ly fi°c�n} t}t� cstir»afc;t� qua�tt�ty of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect any other item of Work; and 3. Contractor believes that Contractor is entitled to an increase in Contract Price as a eesult oi' having incurred additional expense or Owner believes that Owner is entitled to a decrease in Contract Price and the parties are unable to agree as to the amount of any such increase or decrease. ARTICLE 12 - CHANGE OF CONTRACT PRICE; CHANGC OF CONTRACT TIMES 12.01 C/range of Coo:lract Price A. The Contract Price may only be changed by a written Change Order, approved by Cngineer and issued by Owner, on a form approved by the Owner and the Owner's Attorney. Any Claim for an adjustment in the Contract Price shall be based on written notice submitted by the party making the Claim to the �ngineer and the other party to the Contract in accordance with the provisions of Paragraph 10.05. B. The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Price will be detennined as follows: 1. where the Work involved is covered by unit prices contair�e�i in the Contract 1:7��uments, by applic.�El°eon of such unit fia��ices to the quant�tdt:� of the items inrre�dued (subject to the provisions of Paragraph 11.03); or 2. wliere the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually File 6041 Page 52 of 139 � r � � � � � �; e •° agreed lump sum (which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 12.O1.C.2);or 3. where tlie Work involved is not covered by unit prices contained in tl�e Contract Documents and agreement to a]ump sum is not reached under Paragrapli 12.O�1.B.2, on the basis of the Cost of the Work (determined as provided in Paragraph 11.01) plus a Contractor's fee for overhead and profit (determined as provided in Paragraph I 2.01.C). C. Con[raclor's Fee: The Contractor's fee for overhead and profit shall be determined as follows: ]. a mutually acceptable fixed fee; or 2. if a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a. for costs incurred under Paragraphs ] 1.01.A.1 and 11.01.A.2, the Contractor's fee shall be ] 5 percent; b. for costs incurred under Paragraph 11.O1.A.3, the Contractor's fee shall be five percent; c. where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraph l 2.0 ].C.2.a is that the Subcontractor who actually performs the Work, at whatever tier, will be paid a fee of 15 percent of tl�e costs incurred by sucli Subcontractoe under Paragraphs 11.O1.A.1 and 11.O1.A.2 and that any higher tier Subcontractor and Contractor will each be paid a fee of five percent of the amount paid to the next lower tier Subcontractor; d. no fee shall be payable on ihe basis of costs itemized under Paragraphs 11.0 ].A.4, 1].O 1.A.5, and 11.O1.B; e. the amount of credit to be allowed by Contractor to Owner for any change which results in a net decrease in cost will be the amount of the actual net decrease in cost plus a deduction in Contractor's fee by an amount equal to five percent of such net decrease; and f. when both additions and credits are involved in any one change, the adjustment in Contractor's fee shall be computed on the basis of tl�e net change in accordance with Paragraphs ]2.OI.C.2.athrou�h 12.O1.C.2.e, inclusive. �..__ __w.�,m.m..,.,.� . ._�... _..__ .. _.m. Exhibit D 12.02 Clrnrrge of Car�racl Ti��es A. The Contract Times may only be changed by a Change Order. Any Claim for an adjustment in the Contract Times sliall be based on wririen notice submitted by the pany making the Claim to the Gngineer and the ocher party to the Contract in accordance witli the provisions of Paragraph 10.05. B. Any adjustment of the ContracY Times covered by a Change Order or any Claim for an adjustment in the Contract Times will be determined in accordance with the provisions ofthis Arcicle ]2. 12.03 Delays urrd Exlerssions of Time A. Where Contractor is prevented from completing any part ofthe Work within the Contract Times due to delay beyond the control oi'Contractor, the Contract Times will be extended in an amount equal to the time lost due to such del.ay if a Claim is made therefor as provided in Paragraph ]2.02.A. Delays beyond the control of Contractor shall include, but not be limited to, acts or neglect by Owner, acts or neglecl orutility owners or other contraccors performing other work as contemplated by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God. B. If Owner, �ngineer, or other contractors or utility owners performing other work for Owner as contemplated by Article 7, or anyone for whom Owner is responsible, delays, disrupts, or interferes witli the performance or progress of the Work, then Contractor sha11 be entitled to an equitable adjustment in the Contract Price or the Contract Times , or both. Contractor's entitlement to an adjustment ofthe Contract Times is conditioned on such adjustment being essential to Contractor's ability to complete the Work within the Contract Times. C lf Contractor is delayed in the performance or progress of tl�e Work by fire, flood, epidemic, abnormal weatlier conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or otl�er causes not the fault of and beyond control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in �.a�t�tract �l"��nes, if such adjustment is essential to Co�it�•a�tor's. ataility to complete the Work within the Contract Times. Such an adjustment shall be Contractor's sole and exclusive remedy for the delays described in this Paragraph 12.03.C. D. Owner, Engineer and the Kelated Entities of each of tliem shall not be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of �ngineers, architects, attorneys, File 6041 Page 53 of 139 � l � 1 � '•' � 1 • �' � � ' and other professionals and all court or arbitration or otlier dispute resolution costs) sustained by ConYractoi• on or in connection with any other project or anticipated project. E. ContracYor shall not be entitled to an adjustment in Contract Price or Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. F. Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT DOCIJMENTS, INCLUDiNG THE G�NERAL CONDITIONS, NO ADJUSTMCNT SI�ALL BE MADE TO TH� 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, PORCE MAJEURE, IMPACT, OR INTERPIERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR UNPORESEEN, WHICI-I INCREASES TH6 TIME TO COMPLETE THE WORK, INCLIJDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN PART BY TI�E ACTS, OMISS10N5, FAILURES, NEGLIGENCE, OR FAULT OF THE OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S REPiZESENTATIVE, AN CXTENSION OF Tl-IE CONTI2ACT TIME UNDER PARAGRAPH 12.02 BEING THE CONTRACTOR'S SOLE R�MEDY. � � �.. � , � �. . • . �; � •� 13.01 Nolice of DefecAs A. Prompt notice of all defective Work of which Owner or Engineer has actual knowledge will be given to Contractor. All defective Work may be rejected, corrected, or accepted as provided in this Article 13. 13.02 Access fo Work A. Owner, Gngineer, their consultancs and other representatives and personnel of Owner, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspecting, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor's Site safety procedures and programs so that they may comply therewith as applicable. 13.03 Tesls and Inspeclions A. Contractor shal I give Engineer timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperale with inspection and testing personnel to facilitate required inspections or tests. B. Owner shall employ and pay for the services of an independent testing laboratory to perfonn all inspections, tests, or approvals required by the Contract Documents except: l. for inspections, tests, or approvals covered by Paragraphs 13.03.0 and 13.03.D below; 2. that costs incurred in connection with tests or inspections conducted pursuant to Paragraph 13.04.B shall be paid as provided in said Paragraph 13.04.C; and 3. as otherwise specifically provided in the Con- tract Documents. C. lf Laws or Regulations of any public body having jurisdiction require any Work (or part thereo� specif cally to be inspected, tested, or approved by an employee or other representative of such public body, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish Engineer the required ceetificates of inspection or approval. D. Contractor shall be responsible for arranging and obtaining and shall pay all costs in conneclion with any inspections, tests, or approvals required for Owner's and Engineer's acceptance of materials or equipment to be incorporated in the Woek; or acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to Owner and Gngineer. E. If any Work (or the work of others) that is to be inspected, tested, or app►•oved is covered by Contractor without written concurrer�ce of Engineer, it must, if requested by Engineer, be uncovered for observation. 1'. Uncovering Work as provided in Paragraph ] 3.03.E shall be at Contractor's expense unless Contractor has given ]Engineer timely notice of Contractor's intention to cover the same and Engineer has not acted with reasonable promptness in response to such notice. ��.... ��.��.� m�__.m Exhibit D File 6041 Page 54 of 139 ! � 1 • � 1 � ' � � ' � � " 13.04 Uncoveriag 1�'ork A. If any Work is covered contrary to the �aritten request of �ngineer, it must, if requested by Engineer, be uncovered for Enginecr's observation and replaced at Contractor's expense. B. If Engineer considers it necessary or advisable that covered Work be oUserved by Engineer or inspected or tested by others, Contractor, at Engineer's request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as Engineer may require, that portion of the Work in question, furnishing all neces- sary ]abor, material, and equipment. C. If it is found that the uncovered Work is defective, Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and Owner shall be entitled to an appropriate decrease in the Contract Price. lf the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph ]0.05. D. If the uncovered Work is not found to be defective, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Times, or both, directly attributable to such uncovering, exposure, obse►•vation, inspection, testing, replacement, and reconstruction. If the parties are unable to agree as to the amount or extent thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. 13.05 Ow►tcr May Sfop tlee Work A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of Owner to stop the Work shall not give rise to any duty on the pari of Owner to exercise this right for Yhe benefit of Contractor, any SuUcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of' any of them. 13.06 Correcrion or Rernov�r! of Defecai►�e Wnrk A. PrompUy after receipt of notice, Contractor shall correct all defective Work, whether or not fabricated, Exhibit D � �� installed, or completed, or, if the Work has been rejected by Engineer, remove it froin the Project and replace it witl� Work that is not defective. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or otl�er dispute resolution costs) arising out of or relating to sucli correction or removal (including but not limited to all costs of repair or replacement of work of others). B. When correcting defective Work under the terms of this Paragraph 13.06 or Paragraph 13.07, Contractor shall take no action that would void or otherwise impair Owner's special warranty and guarantee, if any, on said Work. 13.07 CorrecPioor Period A. If within one year afier the date of Substantial Completion (or such longer period of time as may be prescribed by the terms of any appl icable special guarantee required by the Contract Documents) or by any specific provision of the Contract Documents, any Work is found to be defective, or if the repair of any damages to the land or areas made available 1'or Contractor's use by Owner or permitted by Laws and Regulations as contemplated in Paragraph 6.11.A is found to be defective, Contractor shall promptly, without cost to Owner and in accordance with Owner's written instructions: l. repair such defective ]and or areas; or 2. correct such defective Work; or 3. if the defective Work has been rejected by Owner, remove it from the Project and replace it with Work that is not defective, and 4. satisfactorily correct or repair or remove and i•eplace any damage to other Work, to the work of others or other land or areas resulting therefrom. B. If Contractor does not promptly comply with the terms of Owner's written instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or �•�pv�ir�ed €�r �n�� hav� tP��; rr°j�ct�c� Wc��°� r��is�s�r��d w�nd �c��ecf.1�11 c��ims, cast�, Ec�s�c�,;�r�ei c��rn�� (i�r�;l��cf�ng la��t nat IiN�iitcd to all f��s <��i ri��0'�,c�s r�l` es��;i��rs, architects, attorneys, and other prof'essionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by Contractor. File 6041 Page 55 of 139 � , 1 � 1 � �' ! 1 � • � C. In special circumstances ��vhere a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run i'rom an earlier date if so provided in the Specifications. D. Where defective Work (and damage to other� Work resulting therefrom) I�as been corrected oe removed and replaced under this Paragraph 13.07, the coreection period hereunder with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. E. Contractor's obligations under this Paragraph 13.07 are in addition to any other obligation or warranty. The provisions of this Paragraph 13_07 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitation or repose. 13.08 Acceptartce of Defecleve Work A. If, instead of requiring correction or removal and replacement of defective Work, Owner (and, prior to Engineer's recommendation of final payment, Cngineer) prefers to accept it, Owner may do so. Contractor sliall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to Owner's evaluation of and determination to accept such defective Work (such costs to be approved by Engineer as to reasonableness) and the diminished value of the Work to the extent not otherwise paid by Contractor pursuant to this sentence. If any such acceptance occues prior to Erigineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and Owner shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. Ifthe parties are unable to agree as to the amount ther•eof, Owner may make a Claim therefor as provided in Paragraph 10.05. If the acceptance occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner. 13.09 Oavrter May Correct Defeclivc Work A. If Contractor fails within a eeasonable time after written notice from Engineer to correct defective Work or to remove and replace rejected Work as required by �ngineer in accordance with Paragraph 13.06.A, or if Contractor fails to .perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, Owner may, after seven days written notice to Contractor, correct or remedy any such deficiency. B. ]n exercising the rights and remedies under this Paragraph ]3.09, Owner shal] proceed expeditiously. In connection with such corrective or remedial action, Owner may exclude Contractor fi•om all or part of the Site, take possession of all or parl of tl�e Work and suspend Contractor's services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the Site, and incorporate in the Wot-k all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Owner's representatives, agents and employees, Owner's other contractors, and Engineer and Engineer's consultants access to the Site to enable Owner to exercise the rights and remedies under this Paragraph. C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attomeys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by Owner in exercising the rights and remedies under this Paragraph 13.09 will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Docu- ments with respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price. lf the parties are unable to agree as to the amount of the adjustment, Owner may make a Claim therefor as peovided in Paragraph ] 0.05. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Contractor's defective Work. D. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the exercise by Owner of Owner's rights and remedies under this Paragraph 13.09. ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Sclaedule of Vulues A. The Schedule of Values establisl�ed as provid- ed in Paragraph 2.07.A will serve as the basis for progress payments and will be incorporated into a form of Applica- tion for Payment acceptable to Engineer and Owner. Progress payments on account of Unit Price Work will be based on tl�e number of units completed. Exhibit D. _.. �.�.�� ..� w..�...� File 6041 Page 56 of 139 � � � � � . ' �' � ! � .. � ', � . 14.fl2 Progress Pu��nrenls A. Applications for Payments 1. At least 20 days before the date established in the Agreement for each progress payment (but not more often than once a month), Contractor shall submit to �ngineer for review an Application for Payment filled out and signed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested on the basis of materials and equiprnent not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that Owner has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other arrangements to protect Owner's interest therein, all of which must be satisfactory to Owner. 2. Beginning with the second Application for Payment, each Application shall include an affidavit of Contractor stating that all previous progress payments received on account of the Work have been applied on account to discharge Contractor's legitimate obligations associated with prior Applications for Payment. 3. The amount of retainage with respect to progress payments will be as stipulated in the Agreement. Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a percentage of the Application, less applicable retainage, to the Contractor within thirty (30) days following Owner's receipt and approval of the Certificate for Payment certified by the Architect/Engineer. The Application may include acceptable nonperishable materials delivered to the Work or stored as provided for in Paragraph 14.02.5 and the payment will be allowed on the net invoice value, less taxes and applicable retainage. The City is required to withhold retainage for public works contracts in which the total contract price estimate at the time of execution is more than $400,000; however, this requir�ment is typically appliecl by the,City for all public works contracts in excess of $50,000. The City may require varying percentage withholding amounts; however, the City typically requires five percent. For retainage percentages in excess of five percent, the City must deposit the retainage into an interest-bearing accounf and pay the interest earned to tl�e contractor on completion of the contract. The retainage will be witliheld by the Owner from each progress payment until final completion of the Work by the Contractor, approval of final completion by the Architect/Engineer, and final acceptance of the Work by the Owner. LJnless otherwise required by state ]aw, the retainage percentage as specified above is based upon the original Contract Sum, and will not be affected in the event the original Contract Sum is subsequently increased or decreased by Change Order. No progress payments shall be made on contracts where performance and payment bonds are not required or furnished. In such instances, payment for the Work performed will be made upon final completion and acceptance by the Owner of all Work. 4. Applications for Payment may not include request 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 Paragraph 6.06 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. 5. 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 Projecl 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: . r.� a.. � n. e�...,. � .,�,_ ..__ ______. ..�.. �.,_.. Gxhibit D File 6041 Page 57 of 139 (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 tlie Work wiihin thircy (30) days afier delivery. STORAGG IN FACILITIES OF THE MANUFACTURER OR THE . CONTRACTOR WILLNOT I3E PGRMITTED OR PAID POR, UNLGSS TI�E OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. � 1' � 1 � �' 1 ,;� • � � � ° 7'he 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 fiariher warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received fi•om the Owner sliall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials, and equipment relating to the Work. All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an approved schedule for delivery to the Project site shall be classified as an "early delivery." All early delivery materials or equipment must have the express written permission of the Owner- to be stored on the Project site. If any unauthorized early delivery occurs, Contractor shall, at Contractor's expense or at the expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the Project site and stored off-site until required at the Project site. All costs of labor, transportation and storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole expense, and amounts may be withheld from the Contractor's Application for Payment to reimburse the Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OP LOSS ON ANY EARLY DELIVERY MATEI2IALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE �ARLY DBLIVERY 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 tl�e incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date is expressly approved in v�•iting by the Owner. If the Contract Sum is equal to or less lhan $25,000.00 and performance and payrnent 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. , B.1Zeview ofApplica[ions 1. �ngineer will, within ]0 days after receipt of eacl� Application for Payment, either indicate in writing a recommendation of payment and present the Application to Owner or return the Application to Contractor indicating in writing Engineer's reasons for refusing to r.ecommend payment. �In the ]atter case; Cor�traccor •rxiay make thc necessary con•ections and resubmit the Application. 2. Gngineer's recommendation of any payment requested in an Application for Payment will constitute a representation by Engineer to Owner, based on Engineer's observations on the Site of the executed Work as an experienced and qualified design professional and on Engineer's review of the Application for Payment and the accompanying data and schedules, that to the best of Engineer's knowledge, information and belief: a. the Work has progressed to tlie point indicated; b. the quality of the Work is generally in accor- dance with the Contract Documents (subject to ai7 evaluation of the Work as a functioning whole prior to or upon Substantial Completion, ta the results of any subsequent tests called for in ihe Contract Documents, to a final determination of quantities and c]assifications for Unit Price Work under Paragraph 9.07, and to any other qualifications stated in the recommendation); and c. the condicions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is Engineer's responsibility to observe the Work. 3. By recommending any such payment Engineer will not thereby be deemed to have represented that: a. inspections rnade to check the quality or the quantity oi' the Work as it has been perfoemed have been exhaustive, extended to every aspect oi the Work in progress, or involved detailed inspec- tions of the Work beyond the responsibilities specifically assigned to Engineer in the Contract Documents; or b. that there rnay not be other matters or issues between the parties that might entitle Contractor to be paid additionally by Owner or entitle Owner to withhold payment to Contractor. 4. Neither Engineer's review of Contractor's Work for the purposes of recommending payments nor Engineer's ,recommendation of any payment,� including final payment, will impose responsibility on Engineer: a. to supervise, direct, or control the Work, or b. for the means, metliods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or �......... ....� ... _.. __�.�v.. �..� .. � . �.�...m. Exhibit D File 6041 Page 58 of 139 � � 1 � � 1 t '� �' ' ` � '' � ' c. for Cantractor's- failure ta comply with•La�vs• and Regulatioeis applicable to Contractor's performance af the Work, or d. to make any examination to ascertain how or for what purposes Contraclor has used the moneys paid on account ortlle Contract Price, or e. to determine that title to any of the Work, maYe- rials, or equipment has passed to Owner free and clear of any Liens. 5. Engineer may refuse to recommend the wl�ole or any part of any payment if, in Engineer's opinion, it would be incorrect to make the representations to Owner stated in Paragraph 14.02.B.2. Engineer may also refuse to recommend any such payment or, because of subsequently discovered evidence or the results of subsequent inspections or tests, revise or revoke any such payment recommendation previously made, to such extent as may be necessary in Engineer's opinion to protect Owner from loss because: a. Yhe Work is defective, or completed Work has been damaged, requiring correction or replace- ment; b. the Contraci Price has been reduced by Change Orders; c. Owner has been required to correct defective Work or complete Work in accordance with Paragraph 13.09; or d. Engineer has actual knowledge of the occurrence of any of the events enumerated in Paragraph 15.02.A. C. Payment Becomes Due ]. Ten days after presentation of the Application for Payment to Owner with Engineer's recommendation, the amount recommended will (subject to the provisions of Paragraph ] 4.02.D) become due, and wl�en due will be paid by Owner to Contractor. D. Reduclion in Paynaen! ]. Owner may refuse to make payment ofthe full amount recommended by Engineer because: a. claims have been made against Owner on account of Contractor's perfonnance or furnish- ing of the Work; Exhibit D N�m WY�^ U. Liens have been filed in connection �a�ith th., Work, except where Contractor has delivered a specifc Uond satisfactory to Owner to secure the satisfaction and discharge of such Liens; c. there are other items entitling Owner to a set-off against the amount recommended; or d. Owner has actual knowledge of the occurrence of any of the events enumerated in Paragraplis 14.02.B.S.a through 14.02.B.S.c or Paragraph ] 5.02.A. 2. lf Owner refuses to make payment of the rull amount recommended by Engineer, Owner will give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action and promptly pay Contractor any amount remaining afier deduction of the amount so withheld. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor corrects to Owner's satisfaction the reasons for such action. 3. If it is subsequently determined that Owner's refusal of payment was not justified, the amount wrongfully withheld shall be treated as an amount due as determined by Paragraph 14.02.C.1. 14.03 CorrlracPor's Warrarfty of TiPle A. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether• incorporated in the Project or not, will pass to Owner no later than the time of payment free and clear of all Liens. 14.04 Subslanlinl Corrzplelio�r A. When Concractor considers the entire Work ready for its intended use Contractor shall notify Owner and Engineer in writing that tl�e enlire Work is substantially complete (except for items specifically listed by Contractor as incomplete) and request that Gngineer issue a certifcate of SubsYantial Completion. B. Promptly after Contractor's notification, Owner,,Coi7tractor, and Engineer shall make an,inspection of the Work to determine the status of completion. lf �ngineer does not consider the Work substantially complete, Engineer will notify Contractor in writing giving the reasons therefor. File 6041 Page 59 of 139 � 1 • 1 � ' • ' � 1 • • !', • ' �': " C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a tentative certificate of Substantial Completion which sliall fix tlie date of SubsYantial Completion. There shall be attached to the certifcate a tentative list of items to be completed or corrected before final payment. Owner shall have seven days after receipt of the tentative certificate during which to make written objection to Engineer as to any provisions of the certificate or attached list. lf, after considering such objections, Engineer concludes that the Work is not substantially complete, Engineer will within 14 days after submission of the tentative certificate to Owner notify Contractor in writing, stating the reasons therefor. ]f after consideration of Owner's objections, Engineer considers tl�e Work substantially complete, �ngineer will within said 14 days execute and deliver to Owner and Contractor a definitive certificate of Substantial Completion (with a revised tentacive list of items to be compleYed or corrected) reilecting such changes from the tentative certificate as Engineer believes justified after consideration of any objections from Owner. D. At the time of delivery of the tentative certificate ofSubstantial Completion, Engineerwill deliver to Owner and Contractor a written recommendation as to division of responsibilities pending final payment between Owner and Contractor with respect to security, operation, safety, and protection of the Work, rnaintenance, heat, utilities, insurance, and warranties and guaeantees. Unless Owner and Contractor agree otlierwise in writing and so inform �ngineer in writing prior to Engineer's issuing the definitive certificate of Substantial Completion, Engineer's aforesaid recommendation will be binding on Owner and Contractor until final payment. E. Owner shall have the righY to exclude Contractor from the Site after the date of Substantial Completion subject to allowing Contractor reasonable access to complete or correct items on the tentative list. 14.05 Iilll'1%UI Ul1J%ZGl%Olf A. Prior to Substantial Completion of al] the Work, Owner may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which Owner, Gngineer, and Contractor a�ree constitutes a separately functioning and usable part of the Work that can be used by Owner for its intended purpose without significant interference with Contractor's performance of the remainder of the Work, subject to the following conditions. l. Owner at any time may request Contractor in writing to permit Owner to use or occupy any such pari of the Work which Owner believes to be ready for its intended use and substantially complete. If and when Coiitractor agrees that such part of the ��Jork is substantially complete, Contractor will certify to Owner and Engineer that such parl oT the Work is substantially complete and request �ngineer to issue a certifcate of Substantial Completion for that parc of the Work. 2. Contractor at any time may notify Owner and Engineer in writing that Contractor considers any such part of the Work ready for its intended use and substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 3. Within a reasonable time aiter either such request, Owner, Contractor, and Cngineer shall make an inspection of that parc of the Work to determine its status of completion. If �ngineer does not consider that part of the Work to be substantially complete, Engineer will notify Owner and Contractor in writing giving the reasons there- for. If Engineer considers that part of the Work to be substantially complete, the provisions of Paragraph 14.04 will apply with respect to certification of Substantial Com- pletion of that part of the Work and the division of responsibility in respect thereof and access thereto. 4. No use or occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Paragraph 5.10 regarding property insueance. 14.06 Finallerspeclio�r A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Engineer will promptly make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 14.07 Firrrrl Payr»errt A. Application for Payment 1. After Contractor has, in the opinion of 6ngineer, salisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with tl�e Contract Documents, all maintenance and �operating instructions, schedules, guarantees, bonds, cerlificates or other evidence of insurance certificates of inspection, marked-up record documents (as provided in Paragraph 6.12), and other documents, Contractor may make application for final payment following the procedure for progress payments. � W �_... ��..�._..._ �......__._,. Exhibit D File 6041 Page 60 of 139 � � 1 i � � '! � � �'` 2. Th.; firal Application for Payment shall be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 5.04.8.7; b. consent of ihe surety, if any, to tinal payment; c. a list of all Claims against Owner tl�at Contractor believes are unsetiled; and d. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien rights, claims, security interests, or encumbrances arising out of the Contract or Liens filed rn connection with the Work, to the extent and in such form as may be designated by the Owner. e. an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied. f. a certifcate evidencing that insurance required by the Contraci Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to the Owner. g. a written staternent that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the ConYract Documents. 3. In lieu oi' the releases or waivers of Liens specified in Paragraph ]4.07.A.2 and as approved by Owner, Contractor may furnish receipts or releases in full and an affidavit of Contractor that: (i) the releases and receipts include all labor, services, material, and equipment for which a Lien could be filed; and (ii) all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner or Owner's property might in any way be eesponsible have been pai� or otherwise satisfied. if any Subcontractor or Supplier fails to furnisli such a release or receipt in full, Contractor may furnish a bond or otl�er collateral satisfactor�y to Owner to indemnify Owner against any Lien. 4. As a precondition Yo final payment by the Owner under this Contract, the Contractor's affidavit shall state that the Contractor has paid each of his � ..__�...�.._M._ _ ��.w��.�._ Exhibit D subcontractors, laborers or materialmen in full for all labor and materials provided to him for the Work under tl�is Contract. In tlie event the Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Contractor shall state in the affdavit the amount owed and the name of each subcontractor, laborer or materialmen to whom such payment is owed. IN ANY GV�NT, TH� CONTRACTOR SHALL BE R�QUIRED TO EXBCUTE THC OWNER'S STANDARD AFFIDAVIT OF FINAL PAYMENT AND RELEAS� AS A PRECONDITION TO RECEIPT OF FINAL PAYMENT. B. Engineer's Revie�� of Applicalion and Accep[ance 1. If, on the basis of Engineer's observation of the Work during construction and final inspection, and �ngineer's review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Engineer is satisfied that the Work has been completed and Contractor's other obligations under the Contract Documents have been fulfilled, lEngineer will, within ten days after receipt of the final Application for Payment, indicate in writing Engineer's recommendation of payment and present the Application for Payment to Owner for payment. At the same time Engineer will also give written notice to Owner and Contractor that the Work is acceptable subject to the provisions of Paragraph ] 4.09. Otherwise, Engineer will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. C. Payment Becomes Due ]. Thirty days, or in accordance with the provisions of Texas Government Code 2251 (Prompt Payment Act), after the presentation to Owner of the Application for Payment and accompanying docu- mentation, the amount recommended by Engineer, less any sum Owner is entitled to set off against Engineer's recommendation, including but not limited to liquidated damages, will become due and , will be paid by Owner to Contractor. 14.08 Firral Coerrp/,�Piar Delayed A. If, through no fault of Contractor, final completion of the Work is significantly delayed, and if Cngineer so confirms, Owner shall, upon receipt of Contractor's fna( Application for Payment (for Work fully completed and accepted) and recommendation of Engineer, and without tenninating the Contract, make payment of the balance due for that portion of the Work File 6041 Page 61 of 139 � 1 ! �' 1 � �' ' , � � ' • fully completed and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds l�ave been furnished as required in Paragraph 5.01, the written consent of the surety to Yhe payment of the balance due for that portion of the Work fully completed and accepted sliall be submitted by Contractor to Engineer with the Application for suclr payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of Claims. 14.09 1�Vaiver of Claierrs A. The making and acceptance of fnal payment will constitute: ]. Deleted by Intention. 2. a waiver of all Claims by Contractor against Owner other than those previously made in accordance with the requirements herein and expressly acknowledged by Owner in writing as still unsettled. 3. The acceptance by the Contractor of the f nal payment shall operate as and shall be a complete release orthe Owner from all claims or liabilities under the Contracc, for anything done or furnished or relaiing 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 l5 - SUSPEIYSiON Or WORK AND TERMINATION 15.01 Owrrer May Suspeerd Work A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 consecutive days by notice in writing to Contractor and Gngineer which will fix the date on which Work will be resumed. Contractor shall resume the Wo►•k on the date so fixed. Contractor shall be granted an adjust- ment in the Contract Price or an extension of the Concract Times, or both, directly attributable to any such,suspension if Contractor makes a Claim thereror as provided in Paragraph ] 0.05. 15.02 Ow�rer Mrty Terr:Binale for Calase A. The occurrence of any one or more of the following events will justify termination for cause: .1. Contractor's persis;ent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the Progress Schedule established under Paragraph 2.07 as adjusted from time to time pursuant to Paragraph 6.04); 2. Contractor's disregard of Laws or Regulations of any public body having jurisdiction; 3. Contractor's disregard of the authority of Engineer; or 4. Contractor's violation in any substantial way of any provisions of the Contract Documents. B. If one or more of the events identified in Paragraph 15.02.A occur, Owner may, after giving Contractor (and surety ) seven days written noiice of its intent to Yerminate the services of Contractor: I. exclude Contractor from the Site, and take possession of Yhe Work and of all Contractor's tools, appliances, construction equipment, and machinery at the Site, and use the same to the full extent they could be used by Contractor (without liability to Contractor for trespass or conversion), 2. incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere, and complete the Work as Owner may deem expedient. C. If Owner proceeds as provided in Paragraph 15.02.B, Contractor shall not be entitled to receive any furthee payment until the Work is completed. lfthe unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all courl or arbitration or other dispute resolution costs) sustained by Owner arising out of or relafing to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by Engineer as to their reasonableness and, when so approved by Engineer, incorporated in a Change Order. When exercising any rights oe remedies under Yhis Para�;raph Owner shall not be required to obtain the lowest price for tl�e Work performed. ��_._m �..�.�....�____�_ _�._.�.�.._�_.�...�__...�.. ,��.�... ��a..��. ExhiUit D File 6041 Page 62 of 139 � 1 . • 1i � � 1 � � �,; , • ' �' D. Notwithstandir�g Paragraphs ] 5.02.B and 15.02.C, Contractor's services will not be tenninated if Contractor begins within seven days of receipt of notice of intent to terminate to correct ics failure to perform and proceeds diligenily to cure such failure within no more than 30 days of receipt oTsaid notice. E. Where Contractor's services have been so terminated by Owner, the termination will not affect any rights or remedies of Owner against Contractor tl�en existing or which tnay tl�ereaTier accrue. Any retention or payment of moneys due Contractor by Owner will not r•elease Contractor from liability. F. If and to the extent that Contractor lias provided a performance bond under the provisions of Paragraph S.OI.A, the termination procedures of that bond shall supersede the provisions oi' Paragraphs 15.02.B, and 15.02.C. 15.03 Ow�ier May Terrniriale For Car:verrre�rce A. Upon seven days written notice to Conteactor and Engineer, Owner may, without cause and without prejudice to any other right or remedy of Owner, terminate the Contract. In such ��se, Contractor sha�l be paid for (without duplication of"�r7y items): , 1. completed and acceptable Work executed in accordance with tlie Conteact Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; 3. all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, arcl�itects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred in settlement of terminated contracts with Subcontractors, Suppliers, and others; and , 4. reasonable expenses directly attributable to termination. I3. Contractor shall not be paid on account of loss of anticipated profts or revenue or other economic loss arising out of or resulting from such termination. Gxhibit D ��_��ym�^ � 15.04 Conlraclor A�ay S1np Work or Ternrinale A. If, tl�rough no act or fault of Contractor, (i) the Work is suspended for more than 90 consecutive days by O�vner or under an order of court or other public autl�ority, or (ii) �ngineer fails to act on any Application for Payment �vithin 30 days after it is submitted, or (iii) Owner fails for 30 days to pay Contractor any sum finally determined to be due, tl�en Contractor may, upon seven days written notice to Owner and Engineer, and provided Owner or Cngineer do not remedy such suspension or failure within that time, terminate the Contract and recover from Owner payment on the same terms as provided in Paragraph 15.03. B. In lieu of terminating the Contract and wiYhout prejudice to any other righl or remedy, if Engineer has failed to act on an Application for Payment within 30 days after it is submitted, or Owner has failed for 30 days to pay Contractor any sum finally determined to be due, Contractor may, seven days atler writien notice to Owner and Engineer, stop the Work until payment is made of all such amoants due Contractor, including interest thereon. The provisions of this Paragraph 15.04 are not intended to preclude Contractor from making a Claim under Paragraph ] 0.05 for an adjustment in Contract Price or Contract Times or otherwise for expenses or damage directly attributable to Contractor's stopping the Work as permitied by this Paragraph. ARTICLE 16 - DISPUTC RESOLUTION 16.01 Me!leods a�rrf Procedures A. Upon the occurrence of any dispute or disagreement between the parties hereto arising out of or in connection with any term ot• provision of this Agreement, the subject matter hereof, or the interpretation or enforcement hereof (the "Dispute"), the parties shall engage in informal, good faith discussions and attempt to resolve the Dispute. In connection therewith, upon written notice of either party, each of the parties will appoint a designated officer whose task it shall be to meet for the purpose of attempting to resolve such Dispute. The designated officers shall meet as often as the parcies shall deem to be reasonably necessary. Sucl� officers will discuss the Dispute. lf the parties are.unable to resolve the Dispute in accordance with this Section, and in the event ihat either of the parties concludes in good faith that amicable resolution ihrough continued negotiation witli respect Yo the Dispute is not reasonably likely, then the parties are fi-ee to pursue whatever action or rights they may have in equity or at law. File 6041 Page 63 of 139 � 1' • 1 � �' 1 ,� �' • � �'"< ARTICLG 17 - MISCCLLANEOUS 17.01 Crvi�rg Nolice A. Whenever any provision of the Contracl Documents requires the giving of written notice, it will be deemed to have been validly given if: 1. delivered in person to the individual or to a member of the fim� or to an offcer of the corporation for whom it is intended, or 2. delivered at or sent by registered or certified mail, postage prepaid, to the ]ast business address known to the giver of the notice. l 7.02 Conrpuluiiar of Times A. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. 17.03 Curtrulaleve Renredies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to tl�e parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract I7ocuments. The provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply. 17.04 Survival af 081rgatioors A. All representations, indemnifications, warran- ties, and guarantees made in, required by, or given in accor- dance with the Contract Documents, as well as all continu- ing obligations indicated in the Cont►•act Documents, will survive final paymen(, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Conlractor. 17.05 Corrlro!lirrg Law arrd Ve�tue A. This Contract shall Ue governed by the laws and case decisions of the 5tate of Texas, without regard to conflict of law or clioice of law principles of Texas or of any other state. B. This Contract is entered in�o subject to and conlrolled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations or the State of Texas and the Government of the United States of America. The Contractor sliall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable State and Pederal laws, rules and regulations, as amended. 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. 17.06 Headi�rgs A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. 17.07 Non-Discrimination As a condition of this Contract, the Contractor covenants tliat 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 ofrace, 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. 17.08 Independent Contractor In performing the Work under this Contract, the rel�tianship b�twe�,�� tlie Ownc�• ,�ric� 4is� �.cy��r�is:lor is �1��[ of an ii�tl��a�a��3�r�1 contrac�i��r, "i'�ru �"��ai��c;tor shall exercise independeni judgment in performing the Work and is solely responsiUle for setting working hours, scheduling or prioritizing the Work flow and determining the means and methods of perforrning tlie Work, subject only to the requirements of the Contract Documents. No term or provision of tliis Contract sl�all be construed as Exhibit D -� A�mmmmm �WM�� File 6041 Page 64 of 139 � 1' ! 1 � ' • ' � " ;� ;• � � ' � rr�aking the Contractor an agent, servant, or employee of tlie 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. ] 7.09 Gifis to Public Servants (a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred, or agreed to confer any benefit on . a City of Denton employee or official that the City of Denton employee or official is prohibited by law from accepting. (b) Por purposes of this Article, "beneft" mean� anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. (c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any ernployee of the Contractor from the Project who has violated the restrictions oftl�is Article oe any similar State or Federal law, and obtain reimbursement for any expenditures made to the Contractor as a result ofthe improper offer, agreement to confer, or conferring of a benefit to a City of Denton employee or official. 17.10 Right to Audit Contractor's Records [3y execution of the Building Construction Services Agreement, the Contractor �rants the Owner the right to audit, at the Owner's election, all of the Contractor's rccords and billings eelating to the performance of the Work under tl�e Contract Documents. The Contractor agrees to retain its Project records for a minimum oifve (5) years following completion of the Work. The Owner a;.��•its that ii �rill ex�r°�;ise ihe right to audit only at ��:{��s�nable lar��-s. Cit�� n�ay review any and all of the services performed by Contractor under this Contract. Any payment, settlement, satisfaction, or release made or provided during tlie course of performance of tliis Contract shall be subject to City's rights as may be disclosed by an audit under this section. 17.1 1 Notice of Contract Claim Exhibit D �� Tl�is Contract is subject to the provisions of tlie Denton City Code, as amended, relating to requirements for filing a notice of a breach of contract clairn against City. Contractor shall comply witl� tlie requirements of tl�is 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. 17.12 Successors and Assigns The Owner and the Contractor respectively bind tliemselves, their partners, successors, assigns, and legal representatives to ihe 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 wheee assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law. 17.13 Written Notice Except as otherwise provided within these General Conditions, 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 pecsonal delivery in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an officer, partner, or other designated representative of either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by �vritten notice in accordance with this section. Mailed notices sl�all be deemed communicated as of three (3) days after mailing. 17.1,4 Righfs and Remedies; No waiver of Rights by Owi7er File 6041 Page 65 of 139 (a) The duties and obligations imposed on the Contractor by tlie Contract Documents and tl�e 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, � : 1 � 1 �' ' • • 1 • �' ' � � ' 4 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 at'forded tl�e Owner under the Contract Documents, nor shall any action o►- failure to act by tl�e Owner constitute approval of or acquiescence in a breach of the Cor�tract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. 17.15 Interest The Owner shail not be liable for interest on any progress or final payrnent to be made under the Cantract Documents, except as may be provided by the applicable provisions ofthe Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject ta Article 14 of these General Conditions. `�6��Id �t s�r�a��i�d ��°i�ca t�c�tv��€��r� �� 1�Cf�� 'N��N'' �c��x�trx�:��d� rasrrfirac:�c�ary C�r-__��j_:s,c�r° �c�Nai�Ma�tw t�r�c ��w�ii�� ti �c�aa[�i1it'��s�; �s�eC fta�°C1� Frj tlae t►[��t�ti�aic�t! c�an1�T��t' sP��rl �are►+�iE. e� .. w.e_... �...�AU�.mm�_�.._m.......� �_m_..�,�__ ��,v�,�.��._.. Exhibit D File 6041 Page 66 of 139 �, 1 � ! i ; ! � 1 � �" � � � . � � . :, • � � The terms in the Supplementary Conditions will have the same meaning as in the General Conditions of the Construciion Contract (CJCDC C-700, 2002, Edition) SC-1 SC-2 The following modifications shall be made to 1.01 A; Delete 1.01 A. 19. and insert the following: 19. Engineer--The word "Engineer" in these specifications shall be understood as the Owner's representative that has been authorized to act in that parlicular position. Kimley-Hom and Associates, Inc. 801 Cherry Street, Unit 11, Suite 950, Fort Worth, Texas 76]02-G308, shall assisc the Owner's duringthe Pre- Construction Conference, Visits to Site and Observations of Construction, Shop Drawings and Samples, Applications for Payment, and coordination with other Owner's representatives. Kimlcy-Horn's responsibility is limited to those tasks delineated in the Engineer's contract with the Owner. Add the following to 1.01 A. 19. The Engineer's Consultants are; CMJ Engineering, Inc. McCreary and Associates Insert the following in 1.01 A as definition number 28. Renumber the definitions to reflect the change (ie, "Modification" is number 28; 28 is 29; etc.): 28. MODIFICATION -(a) Written Amendment; (b) Change Order; (c) Field Order; (d) Work Change Directive Add the following to 1.01 A. 47. Where in the Bonds and elsewhere in the contract, the terms "Special Provisions", and "Special Conditions" appear they shall be eead to mean "Supplementary Conditions". Delete 1.02 C. and insert the following: C. Day 1. A"calendar day" shall be a day of twenty-four hours measured from midnight to the next midnigl�t, and is any day of the year, no days being excepted". 2. A"working day" sl�all be a day, not including Saturdays, Sundays or any of the following holidays: New Year's Day, President's Day, Me��ai�t�ial I�ay, ls,cl�pender�'ce i��y, Labor Day, Thanksgiving Day and Christmas Day, in whidi weather t�r c�the�� ct>r��iiii�ns not ��i�c�ea� the control of che Contractor will permit construction of the principal units of the work for a period of not less than seven hours between 7:00 aan. and 6:00 p.m. �� _�.. -�w�.M.M.... ..�. Exhibit D File 6041 Page 67 of 139 � SC-4 SC-5 SC-6 SC-7 � ` 1' � 1 ° � � � ' � ' � ' Delete Paragraph 2.05 A. of the General Conditions in its entirety and inseri the following in its place: A. Contractor's Review of Construction Documents: Before undertaking each pari of the Work, Contractor shall carefully study and compare the Contract Docutnents and check and verify pertinent figures therein and all applicaUle field meas�rements. Contractor shall promptly report in writing to �ngineer any conilict, error, ambiguity or discrepancy whicl� Contractor may discover and shall obtain a written ii7terpretation or clarification from Engineer before proceeding with any work affected thereby. In the event of a conflict in the Drawings, Specifications, or other portions of the Contract Documents which were not reported prior to the Bidding of the Contract, the Contractor shall be deemed to have included the most cxpensive in his Bid." Delete Paragraph 3.01 B. of the General Conditions in its entirety and insert the following in its place: C_ Evidence oflnsw•ance: Before any Work at the Site is started, Contractor shall deliver to the Owner, with copies to eaeh additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance which Owner or any additional insured may reasonably request) which Contractor is required to purchase and maintain in accordance with Article 5. Amend Paragraph 2.07 A. by adding the following: Such acceptance of the contract completion schedule in no way affects the Contract Times. Add a new pa►-agraph immediately after paragraph 2.07 of the General Conditions which is to read as follows; 2.08 Change in Conlrac! Tiine A. The Contract Times may be changed only as set forth in Article ] 2 of the General Conditions, and a progress schedule shall not constitute a change in the Contract Times. Amend Paragraph 3.01 A. by adding the following: The title and headings contained in the contract documents and the subject organization are used only to facilitate reference, and in no way define or limit tl�e scope of intent of any of the provisions ofthis contract. Add to paragraph 3.01 D. The Contract Documents comprise the entire Agreement between Owner and Contractor. The Contract Documents may be altered only by a Modification. ExhibitD � �_ �.��,.� ��w��.� W, ��..� � e� � w..�. �... e� �_. �_� �.� ._._�._. File 6041 Page 68 of 139 SC-9 SC-10 SC-11 � ' 1 ! ', 1 • ' • � 1 � � � � Amend para;raph 3.03. A.3. of the General Conditions by siriking out the following words: "tliat Contractor shall not Ue liable to Owner or Engineer for failure to reporc any such conflict, error, ambiguity or discrepancy unless Contractor knew or reasonably should have known thereof." and add the roiioW�n�: In the event of a conflict in the Drawings, Specifications, or other portions of the Contract Documents which were not reported prior to the Bidding orthe Contract, the Contractor sliall be deemed to have included the mosY expensive in his 13id. Delete Paragrapl� 4.02 of the General Conditions in its entirety and insert the following in its place: 4.02 Exanzi,�a�ron of Plans, Specifrcations and Sile of the Work A. Bidders are advised that the plans, specifications and other documents ]isted in Paragraph 4.02 C shall constitute all the information which the Owner shall furnish. Bidders are required, prior io submitting any proposal, to review the plans and read the specifications, proposal, contract and bond forms carefully; to visit the site of the work; to examine carefully local conditions; to infonn themselves by their independent research, tests and investigations of the difficulties to be encountered and judge for themselves the accessibility of the work and all attending circumstances affecting the cost of doing the work or time required for its completion; and to obtain all information required to make an intelligent proposal. B. No information given by the Owner or any official thereof, other than that shown on the plans and contained in the specifications, proposals and other contract documents, shall be binding upon the Owner. Bidders shall rely exclusively upon their own estimates, investigations, tests and other data which are necessary for full and complete information upon which the proposal may be based. Any bidder, by submitting his bid, represents and warrants: that he has prepared his bid in accordance with the specifications, with full knowledge and understanding ofthe terms and provisions thereof, that he has reviewed, studied and examined the bid prior to Yhe signing and su�mission o!'same; and that he was cognizant of the terms of his proposal, verified his calculations and found them to be correct and agrees to be bound thereby. C. As set forth in paragraph 4.02, Gngineer OR �ngineer's Consultants in the preparation of Drawings and Specifications have relied upon: l. Report dated May 2013, prepared by CMJ �ngineerin�, Inc., entifled: "Geotechnical Engineers Study Elevated Water Tank, H. Lively Road, Denton, Texas". Contractor recognizes that the technical data listed rellect only the conditions for lhe day the data was collected and reflects only conditions existing at the exact location of Samples. Contractor is not entitled to rely upon other information and data utilized by Engineer and Engineer's Consultants in preparation of Drawings and Specifications. 2. Copies of the boring logs from this report are provided at no cost, and available for download frorn the City's website. A copy of the boring ]ogs froro this report may also be examined at the offices of Kimley-Horn and�Associates, Inc. located at 801 Cherry Street, Unit 11, Suite 950, Port Worfh Texas during regular business hours. Delete Paragraplls 4.03 and 4.04. of the General Conditions in their entirety. �.��....�.�..._.�,__. n,_.,.�.._�. �......�.__ �..�_ Exhibit D File 6041 Page 69 of 139 SC-12 SC-]3 SC-14 :Y� � � 1 � '. � �,, �� ' • Deleted intentionally, Delete Paragraph 5.02 A. of the General Conditions in its entirety and insert the following in its place: 5.02 Licensed Surelies and /nsu�•ers A. All Bonds and insurance required by the Contract Documents to be purchased and maintained by Contractor shall be obtained from surety or insurance companies that are duly licensed or authorized in the jurisdiction in which the Project is located to issue Bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. Delete Paragraph 5.03 B.: The limits of liability for the insurance required by Paragraph 5.04 of the General Conditions shal] provide as a minimum tl�e coverage indicated in the document entitled "City of Denton Insurance Requirements for Contractoi•s" that follows these Supp]ementary Conditions and not less than the amounts required by Laws and Regulations. Add at the end of Paragraph 5.04 B.I - The following are to be listed as additional insured on all insurance policies: SC-16 SC-17 City of Denton, Texas Kimley-Horn and Associates, Ine. CMJ Engineering, Inc. McCreary and Associates Amend paragraph 5.04 B.7. by changing "two years" to "three years". Delete Paragrapl� 5.06 A. of the General Conditions in its entirety and insert the %llowing in its place: A. Contractor shall purchase and maintain property insurance upon the work at the site on a replacement cost basis with a limit not less than ] 00% or the Project's replacement value thereof (subject to such deductible amounts as may be provided in these Supplementary Conditions .or required by Laws and Regulations). This limit should include "soft cost," or expenses relating to the construction project(s) over and above those costs which would l�ave been incurred if there had been no loss. These soft costs should include, but not be limited to, interest, additional ta�:es, advertising/promotional expenses, addifional commissions, loss of rents, architects or Engineering fees. This insurance shall: _. _. ...� ��_�a..........�...�� a� r��. Exhibit D File 6041 Page 70 of 139 � • � 1 �' • • ' , � � '' I. include the interests of Owner, Contractor, SubContractors, Engineer, Engineer's Consultants and any other persons or entities identified in paragraph 5.04 B.1 (SC-1 S) of these Supplemcntary Conditions, each of whom shall have an insurable interest and shall Ue listed as an additional insured; 2. be written on a Builder's Risk "all risk" or open peril or special causes of loss policy rorm tl�at shall at least include insurance for pl�ysical loss and damage to the Work, temporary buildings, false work and Work in transit and shall insure against at least the following perils; fire lightning, extended coverage, theft, vandalism .and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage, and such other causes of loss as may be specifcally required by the Supplementary Conditions; 3. include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of Engineers and architects); 4. cover materials and equipment in transit to the Project site, and materials that the Contractor has taken possession of whether stored at the Project site; allow for Partial Utilization of the Work by Owner; 6. include testing and startup; and 7. b� a��ir�t�inc€i in � 4`�`eci �s�t`sl final payment is rn�a�ie unle�� c�tl�erwise agreed to ist �:i•a�ing by Owner, Contr�s;l�a�, ��7� �ngirrecr �vit#t thirty days writte�� 7�atice to ��l� other additional ia7�u�•�ti to whom a certifcate of insurance has been issued. The policies of insurance required to be purchased and maintained by Contractor in accordance with this paragraph 5.06 shall comply with the requirements of paragraph 5.06 C. SC-18 SC-19 SC-20 Delete Paragraph 5.06 B. of tl�e General Conditions in its entirety and insert the following in its place: B. Contractor shall purcl�ase and maintain such boiler and machinery insurance or additional properiy insurance as may be required by the Supplementary Conditions or Laws and Regulations which will include the interests of Owner, Contractor, SubContractors, Engineer, Engineer's Consultants and any other persons or entities identified in paragraph 5.04 B.l (SC-15) of these Supplementary Conditions, each of whom is deemed to have an insurable interest and shall be listed as an insured or additional insured. Amend paragrapl� 5.06 C by revising the last sentence to add the rollowing: and will contain a waiver of subrogation by the insurance company against tl�e Owner and each additional insured. Delece Paragraph 5.06 D. orthe General CondiYions in its entirety and insert the following in its place: D. Owner shall not be responsible for purchasing and maintaining any insurance to protect the interest of the Contractor, SubContractors, or otl�ers in tl�e Work. The stated limits of insurance required are minimum only. Contractor shall determine the limits tl�at are adequate. Tliese limits �nay be basic policy limits or any combination of basic limits and umbrella limits. ]n any event, Contractor is fully responsible for all losses arisirg out of, resulting from or connected with operations uiider this contract whether or not said —��...�.�m......�.. .�_._.._. �.�.��---- _... w�.mm._..__ �._. �xhibit D File 6041 Page 71 of 139 SG21 EY� � :� i � � r � � • � � • � �- � � losses are covered by insurance. The acceptance of certificates or other evidence of insurance by the Owner, Engineer, and/or others listed as additional insured in Paragraph 5.04 B.] (SC-15) that in any respect do not comply with the Contract requirements does not release the Contractor f'rom compliance herewith. Delete Paragraph 5.06 E. of the General Conditions in ifs entirety, Delete Paragrapli 5.07 of the General Conditions in its entirety. Delete Paragraph 6.05. A. of the General Conditians in its entirety and insert the following in its place:. 6.05 Substitutes and "Or Equals" A. Wl�ere equipment and products are specified by name, no substitutes or "ar-equal" will be considered or approved unless the term "or-equal" is included in the acceptable manufacturer section of that Specification. ]. If substitutes or "or equals" are specifically pe►•mitted for consideration by the individual Specifications, they must be submitted and will be reviewed and evaluated in accordance with the provisions esiablished in General Condiiion paragraph 6.05 and in Division 1 of the Specifications. Any determination made by the Engineer is subject to the review and approval of the Owner and the Owner's determination shall be final. Amend paragraph 6.05 B. by changing the reference in the last sentence from 6.OS.A.2 to 6.05_A.1 Amend paragraph 6.05 C. by deleting the third sentence and rep]acing it with the following sentence: No "or-equal" or substitute will be ordered, installed or utilized until �ngineer's eeview is complete, which will be evidenced by either a Cl�ange Order or Field Order. SC-26 Amend paragraph 6.05 E. by changing the reference in the first sentence from 6.OS.A.2 to 6.OS.A. In addition, atnend paragraph 6.05 E. by deleting the word "substitute" in all locations and replacing it with tl�e phr•ase "substitute or "or-equal"' . SC-27 Amend para;raph 6.06 A. by adding the following to the last sentence: unless called for in the Contract Documents. � m.��.mm�......,�� .rr�. � Exhibit D File 6041 Page 72 of 139 SC-28 ;r � � • � � � � . , � ;• � Add the following text at the end of 6.06 Concerning StibCa�l�•aclors, Suppliers, nnd Olhe�•s, Part G: No work may be performed by any SubContractor until the Contractor executes a subcontract with SubContractor which, as pr�vi�ied in this ,�<��;t.�ph, ��ressly incorport;ut�s the provisions of the ct�ntract documents as binding on and �gay�lying to the ��9�C'c�ncra��a�• insofar as they �rt. applicable to the work perd't��•med by the SubContractor. The Contractor shall provide �aritten documentation to the Owner which indicates the name of the SubConU�actor, the date the subcontract was executed and the value of the executed subcontract. No work may be perfonned by any SubContractor until the written documentation is provided following executio�i uf the suUcontract. The Cuntractor alsa rnust provide written notification of any amendrnent or changes in any subcontract value. SC-29 Add a new paragraph immediately after paragraph 6.06 G of the General Conditions which is to read as follows: H. Owner or �ngir�cer may furnish to any such SubContractor, Supplaer, or e�tl�er° �acm•��an or organization, to the exlent pra�Eicable, information about amounts paid to Contra�t�r in g��:�;�rt13��ce with Contractor's Application for Payment on account ofthe particular S�bContractor's, Supplier's, other person's or other organization's Work. SC-30 Add a new paragraph immediately after paragraph G.08 A of ihe General Conditions which is to read as fol lows� In accordance with the Federal Water Pollution Control Act, 33 U.S.C. Para. ]251-1387 (1990), also known as the Clean Water Act, as amended in 1987 and codified at 40 C.F.R. Part 122, the Contractor shall be required to obtain a stormwater discharge permit for construction activity from the United States Environmental Protection Agency (EPA). Under current regulations, construction activities including clearing, grading and excavation, must be permitted for storm water discharge unless the operations result in the disturbance of less than five acres total land areas which are not part oTa larger common plan of development. The Contractor is required to submit a Notice of Intent (NOI) for stormwater discharges associated with industrial activity under the NPDES General Permit with EPA at least two days prior to the date on which construction is to commence. In addition the Contractor shall prepare and recain on-site a SYormwater Pollution Prevention Plan in accordance with EPA requirements. SC-31 Add a new paragraph immediately after paragraph 6.09 C. of the General Conditions which is to read as follows: D. All Bidd'ers are required to complete and'submit with their Bid the Vendc�r Compliance to State Law i'orm, which follows the proposal. �._ �.�.�........_._ �.� � Exhibit D File 6041 Page 73 of 139 SC-32 � 1 � 1 � � 1 � �' � ' ! � Add the rollowing language at the end of the first sentence of paragraph 6. ] 0 A. of the General Conditions: The Owner qualifies as an exempt agency as defined by the statutes of the State of Texas. The Contractor shall comply with all statutes and rulin�s ofYhe State Compiroller. SC-33 Add the following sentence to paragraph 6.12 of the General Conditions: Drawings submitled upon completion of the project will be submitted by che Contractor on full size set of construction plans. SC-34 Revise paragraph 6.13.A3 of the General Conditions to read as follows: othee property at the site or adjacent thereto, including trees, shrubs, lawns, lawn irrigation systems,..... Add the following paragraphs to Article 6.13.B of the Genera] Conditions: The Contractor shall comply with the provisions of the Occupational Safety and Health Act of ] 970, and the standards and regulations issued thereunder and warrant that all work, materials, and peoducts furnished under this contract will conform to and comply with said standards and regulations which are in existence on the date of this contract. The Contractor furtl�er agrees to indemnify and hold harmless the Owner and the Engineer for all damages suffered by the Owner and tl�e Engineer as a result of the Contractor's failure to comply with the Act and the Standards issued thereunder and for the failure of any material and/or equipment furnished under this contract to so comply. The Contractor shall also comply with all pertinent provisions orthe "Manual of Accident Prevention in Construction" issued by the Associated General Contractors of America, Inc., if not in conflict with those of the Occupational Safety and 1-Yealth Act of 1970 and shall maintain an accurate recoed of all cases of death, occupational disease, and injury requiring medical attention or causing loss of time from work, arising out of and in the course of employment or work under the contract. The Contractor alone shall be responsible for the saTety, efficiency, and adequacy of his equipment and employees, and for any damage which may result from their failure or tl�eir improper construction, maintenance or operation. Per Texas I�ouse Bill 1569 effective as of September 1, 1989, it shall be the responsibility of the Contractor to provide and maintain a viable trench safety system at all times during construction activities. The Contractor is directed to become knowledgeable and familiar with the standards as set forth by the Occupational Safety and Health Administration (OSHA) for trench safety that will be in effect during the period of construction of the project and the co�tract is responsible for confor•ming to such eegulations as prescribed by OSHA standards. A bid item for trench excavation safety protection and shoring is included in the proposal. _ _..._.....�.. �. ._.�..m�_ ..�_._. Exhibit D File 6041 Page 74 of 139 � SC-36 SC-37 r�►hibit D CITY OF llT'NTON G�N�RAL CONDITIONS FOR WATER PROJrCT CONSTRUCTION Amend paragraph 6.16 by revisin� the last sentence to read: If Engineer determines thal the incident giving rise to the emergency action was not tl�e responsiUility of the Contractor and that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued. Delete Paragraph u.17. C. 2. of the General Co�ditions in its entirety and inscrt the following in its place: 2. All Shop Drawings sha❑ be in strict compliance with tlie Contract Documents. The Contractor may seek a deviation by requesting a Modification. All approved Written Amendments, Change Orders, Field Orders and/or Work Change Directives shall be incorporated into the Shop Drawings. The Contractor may submil a Sliop Dra�ving or sample that varies from compliance with the Contract Documents providing thc submittal is accompanied by a Shop Drawing Deviation Requcst. If the proposed Modification is approved by the Engincer, thc submittal will be considered to be in strict compliance with tl�e Contract Documents and it will be reviewed in accordance with the Contract Documents. If the proposed Modification is not approved, the submittal will be returned to the Contractor �vith appropriate comments. All Sl�op Drawings shall bear a duly executed statement by the Contractor as set forth liereinunder. THIS SHOP DRAWING HAS BEEN REVIEWED AND DET�RMIN�D TO BE IN ❑ COMPLIANCE 0 COMPLIANCE SUBJECT TO APPROVAL OF ATTACHED CHANGE ORDER/FIELD ORDER AND W1TH TH� CONTRACT DOCUMENTS AS MODIFIED BY ADDENDA, CHANGE ORDER AND P1ELD ORDER. CONTRACTOR BY DATE Delete Paragraph 6.17 C. 3. oi'the General Conditions in its entirety and insert the followin� in its place: � 3. The Contractor'may submit a Shop Drawing or Sample that varies from strict compliance with the Contract Documents providing the submittal is accompanied by a proposed Change Order or Field Order. lfthe proposed Change Order or Field Order is approved by tlie Engineer, the submittal will be considered in strict compliance with the Contract Documents. Submittals under this provision shall bear a duly executed statement by the Contractor as set forth in paragraph 6.17 C.2. as modified in these Supplementary Conditions. lf the proposed Change Order or Field Order is approved by tl�e Engineer, the submittal will be reviewed in accordance with the Contract Documents. If the Change Order or Field Order is not approved, the submittal will be returned to tl�e Conlractor witl� appropriate comments. Exhibit D�� File 6041 Page 75 of 139 � 1 � 1 � � 1' �' � � � �" SC-38 Delete the following fi•om 6. ] 7 D.3. "unless Contractor has in writing called Engineer's attention to each such variation at the time of each submirial as required by paragraph 6.17 C.3. and Engineer has given wi•itien approval of each such variation by specif ic written notation thereof incorporated in or accompanying the Shop Drawing or Sample approval" SC-39 L�e!ete the last sentence in para�raph 6.17 �. The followir.� shall be added: All resubmittals shall be in strict compliance with the Drawings, Specifications and Contract Documents, and only the changes permitted from the prior submittal shall be modifications or additional inrormation addressing specifically the Engineer's previous comments. SC-40 Delete the 1'ollowing from paragraph 6. ] 8-"or as Owner and Contractor may otherwise agree in writing." Add the following language at the end of the second sentence of paragraph 6. ] 8 oi'the General Conditions: Contractor assumes and bears responsibilily for all costs and time delays associated with any variation from the requirements ofthe Contract Documents. SC-41 Delete the following from paragraph 6.20. —"but only to the extent caused b any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for �vhose acts any of the may be liable" replace with the following language: IS CAUSED IN WHOLE OR 1N PART BY ANY NEGLIG�NT ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANY SUPPLIER, OR ANY INDIVIDUAL OR ENTITY DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM TO PCRFORM ANY OF THE WORK OR ANYON� FOR WHOSB ACTS ANY OF THEM MAY BE LIABLE, 1��C;_Aix1�i��5 OF WH]GTHER OR NOT CAUSED IN PART BY ANY NEGLIGENCE OR (,�11�1i�`�iCA�4' OF AN 1�'ll��'l�li9�f.� OR ENTiTY ,NnEmNi��En HEREurrnER oR vvH�cT,�ca �J��r�r�a��r rs rr��c��r� vPorv svcH INDEMNIFIED PARTY BY LAWS AND REGIJLATIONS ��.1t:�Ai�i��F�_� OF THE �k',�L1GIGNCC OF ANY SUCH INDIVIDUAL OR ]CNTITY. SC-42 Add the rollowing paragraph after Paragraph 6.21 Delega[ion qfProfessional Design Services: 6.22 Perfa•mance of Work by lhe Con1�•actor Contractor Participation: Cxcept as other�vise provided, the Contract shall perform no less than 25 percent (25°/a) of the work with his own organization. The on-site production of materials produced by other than the Contractor's forces shall be considered as being subcontracted. If, during the progress of work hereunder, the Contractor requests a reduction in such participation percentage and tl7e Owner determines that it would be to the Owner's advantage, the percentage of work required to be performed Uy the Contractor may be reduced; provided, written appi•oval of such reduction is obtained by the Contractor from tlie Owner. ExhiUitD _� �� ..�.�� .,A.um��IT ��. �...�.. ��.m._ .�_ File 6041 Page 76 of 139 SC-43 SC-44 SC-45 SC-46 SC-47 SC-48 � '1 � 1 � � 1 � �' ' � � Delete Paragraph 8.01 of the General Conditions in its entirety and insert the following in its place; 8.01 Communications to Contractor. A. Owner will issue project communications related to the administration of the Construction contract through the Engineer. Delete Paragraph 8.02 A of the General Conditions in its entirety and insert tlie following in its place: A. In the case of termination of the employment of the Engineer, Owner will notify the Contractor of their intent to appoint a different Cngineer to the Project. Contractor may voice any objections with regard to the Owner's replacement Engineer within a reasonable time set by the Owner and Owner will take these objections (if any) into consideration before appointing the new Engineer. Amend Paragraph 8.09 A. by adding the following: Any failure or neglect on the part of Owner, or Engineer to enforce provisions herein dealing �aith supervision, control, inspection, testing or acceptance and approval of the work shall never operate to relieve Contractor from full compliance wiih the contract documents nor render Owner liable to Contractor for money damages, exYensions of time or increased compensation of any kind. Delete paragraph 8.10 in its entirety. Delete Paragraph 9.01 of the General Conditions in its entirety and inseri the following in ils place: 9.01 Au[ha•ity of Engineei• A. Engineer is the Owner's representative during the construction period. However, any determination made by the Engineer is subject to tl�e review and approval of the Owner and the Owner's determination shall be final. � Delete Paragraph 9.03 of the General Conditions in its entirety and insert the fo]lowing in its place: 9.03 Projec[ Re��resenlalive - A. The Owner may elect to have a Resident Project Representative on the Site. The Owner may also have an assistant Resident Project Representative on the Site that will report directly to the Resident Project Representative. The duties, responsibilities and the limitations of authority of the Resident Project Representative, and designated assistants, are as follows: m_._ �—�.m�.�.,.r-- ---..a��e�___. ...��._.w,._ Exhibit D File 6041 Page 77 of 139 il � 1 � � I , � � ' ' � � �` 1. Resident Project Representative is the Owner's agent at tl�e site, will act as directed by and under the supervision of the O�vner, and �vill confer with Owner regarding Resident Project Representative's actions. Resident Projecl Representative's dealings in matteis pertaining to the on- site Work sl�all in general be witli eitl�er tl�e Owner and Contractor, keeping all pariies advised as necessary. Itesident Project Representative's dealings with SubContractors shall only be through ot- with full knowledge and approval of Contractor. Resident Project IZepresentative shall generally communicate with Owner with the knowledge of and under the direction of Owner. B. Duties and Responsibilities of Resident Project Representative and desi�nated assistants: 1. Schedules: Review the progress schedul�, schedule of Shop Drawing submittals and schedules of values prepared by Contractor and consult with Owner concer•ning acceptability. 2.Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences and other project-related meetings, and prepare and circulate copies of minutes thereof. 3. Liaison: a. Serve as Owner's liaison with Contractor, working principally through Contractor's superintendent and assist in understanding the intent of Contract Documents; and assist Engineer in serving as Owner's liaison with Contractor when Contractor's operations affect Owner's on-site operations. b. Assist in obtaining from Owner additional details or information, when required for proper execution of the Wark. 4. Shop Drawings and Samples: a. Record date of receipt of Shap Drawings and Samples. b. Receive Samples which are furnished at the Site by Contractor, and notify Owner of availability of Samples for examination. c. Advise Owner and Contractor of the commencement of any Work i•equiring a Shop Drawing or Sample if the submittai has not been approved by Owner or Engineer. Review of Work, Rejection of Defective Work, Inspections and Tests: a.. Conduct on-site observations of the Work in progress to determine if ihe Work is in general proceeding in accordance with the Contract Documents. b. Report to Owner whenever Resident Project Representative believes that any Work will not produce a completed Project that conforms generally to the Contract Documents or will p�•ejudice the integrity of the design concept of the completed Project as a functior�ing whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test.or approval required to be made; and advise Owner of Work tfie Residerrt Project Representative Uelieves•should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. c. Verify that tests, equipment and systems start-up and opei•ating and maintenance training are conducied in the presence of appropriate petsonnel, and the Contractor maintains adequate records thereof and observe, record and repoi-f to Owner appropriate details relative to the test procedures and start-ups. ,.� __ �_�__.w.,a.__ v.�.....a�,�. _. Exhibit D File 6041 Page 78 of 139 � � 1 � � 1 � �'' ' � � �' d. Accompany visiting inspectors representing public or other agencies having jurisdiction over tlie Project, record the results of tliese inspections and report to Owner. 6. Interpretation of Contract Documents: Report to Owner when claritications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by Owner. 7. Request for Revisions: Consider and evaluate Contractor's suggestions for revisions to Drawings or Specifications and report with Resident Project Representative's recommendations to Owner. Transmit to Contractor in writing decisioiis as issued by Owner. 8. Records: a. Maintain at the job site orderly files for correspondence, reporls of job conferences, Shop Drawings and Samples, reproductions of original Contract Documents, including all Work Change Directives, Addenda, Change Orders, Field Orders, Written Amendments, additional Drawings issued subsequent to the execution of the Contract, Owner's clarifications and interpretations of the Contract Documents, progress reports, submittals and correspondence received from and delivered to Contractor and other Project related documents. Reports: a. Furnish to Owner periodic reports as required of progress of the work and of Contractor's compliance with the progress schedule and schedule of Shop Drawings and Sample submittals. b. Consult witl� Owner in advance of scheduled major tests, inspections or start of important phases of the Work. c. Draft proposed Written Amendments, Change Orders and Work Change Directives, obtaining backup material from Contractor and recommend to Owner Written Amendments, Change Orders, Work Change Directives, and Pield Orders. d. Report immediately to Owner the occurrence of any accident. 10. Payment Requests: Review Applications for Payment with Contractor for compliance with the established procedure for their submission and forward with recornmendations to Owner, noting particularly the relationship of the payment requested to the schedule of values, Work completed and materials and equipment at tl�e Site but not incorporated in the Work. 11. Certificates, Maintenance and Operation Manuals: During the course of the Work, verify that certifcates, maintenance and operafion manuals and other data required to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have this material delivered to Owner for review and forwarding to Owner prior to final payment for the Work. 12. Completion: a. Before Owner issues a Certif cate of Substantial Completion, submit to Contractor a list of observed items requiring completion or correction. b. Observe whetlier Contractor has performed inspections required by laws or regulaiions, ordinances, codes or order applicable to the Work, including but not limited to those to be performed by public agencies having jurisdiction over the Work. �._..a w.�. ........ ra.�.. � �.,_.. Exhibit D File 6041 Page 79 of 139 SC-49 SC-50 � � • � 1 � � ' ' � � - ! c. Conduct a final inspection in the company of Owner and ConU-ac[or and prepare a final list of items to be completed or corrected. d. Observe whether all items on final list have been completed or corrected and make recommendations to Owner concerning acceptance. C. Limitations of Autl�ority of Residenc Project Representative and desibnated assistants: l. Shall not authorize any deviation from the Contract Documents or substitution of materials or equipment (including "or-equal" items), unless authorized by Owner. 2. Shall not exceed limitations of Owner's authority as set forth in Agreement or the Contract Documents. 3. Shall not undertake any of the responsibilities of Contracior, SubContractor, Suppliers, or Contractor's superintendent. 4. Shall not advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or pi-ocedures of construction unless such advice or directions are specifically required by the Contract Docurnents. 5. Shall not advise on, issue directions regarding or assume control over safety precautions and programs in connection with the Work or any activities or operations of Owner or Contractor. 6. Shall not accept shop drawing or sample submittals from anyone other than the Contractor. 7_ Shall not participate in specialized feld or laboratory tests or inspections conducted by others, except as specifically authorized by Owner. Delete Paragraph 9.04 of the General Conditions in its entirety and insert the following in its place: 9.04 Aulha'ized vurialions in Work A. Engineer may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concepY of the completed Project as a functioning whole as indicated by the Contract Documents. These may be accomplished by a Field Order. The Contractor shall notify the �ngineer in writing prior to beginning any Work addressed in a Field Order if the Contractor does not agree that the Work involved represents no additional cost and/or time change in tl�e Contract Documents. Delete Paragraph 9.07 of the General Condiiions in its entirety and insert the following in its place: 9:07 Delerminulions for Unil P��iae Wo�•k A. Engineer will determine the actual quantities and classifications of Unit Price Work perfortned by Contractor. Engineer will review with Contractor tl�e Engineer's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Cngineer's written decision thereon is subject to the review and approval of the Owner and the Owner's determination shall be final as provided in 9.01 A. _,...�.....�.._....._. _.�.,�._� __. _—,..�..._.�..._ Exhibit D File 6041 Page 80 of 139 SC-51 SC-52 SC-53 1 � � � � . � 1' � � ' � � � Delete Paragraph 9.08 of the General Conditions in its entirety and insert the following in its place: 9.08 Decisions on Requi�•enaenls of ConU•ac! Docw��enls and Acceplabi/ity of Work A. Engineer will be the inilial interpreter ofthe requirements ofthe Contract Documents and judge of the acceptability of the Work thereunder. Claims, disputes, and other matters relating to the acceptability of tlie Work, the quantities and classifications of Unit Price Work, the interpretation of the requirements of the Contract Documents pertaining ta the performance of the Work, and Claims seeking changes in the Contract Price or Contract Times will be referred initially to Engineer in writing, in accordance with thc provisions or parajraph 10.05, with a request for a formal decision. �ngineer's formal decision thereon is subject to the review and approval of the Owner and the Owner's determination sliall be final as provided in paragraph 9.OlA B. The rendering of a decision by Engineer pursuant to this paragraph 9.09 and the review and fina] decision by Owner thereof, with respect to any such claim, dispute, or other matter (except any which have been waived by the acceptance of final payment as provided in paragraph 14.07) will be a condition precedent to any exercise by Contractor of any rights or remedies it may otherwise have under the Contract Documents or by Laws or 12egulation in respect to any such claim, dispute, or other matter. Delete Paragraph ] 0.05 of the General Conditions in its entirety and insert the following in its place: 10.05 Claims A. Notice: Wriiten notice stating the general nature of each Claim, dispute, or other rnatter shall be delivered by the claimant to Gngineer promptly (but in no event later than 7 days) after the starc of the event giving rise thereto. Notice of the amount or extent of the Claim, dispute, o�• other matter with supporting data shall be delivered to the Engineer within 30 days after the start ofsuch event (unless Engineer allows additional time for claimant to submit additional or more accurate data in support of such Claim, dispute, or other matter). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of paragraph 12.O1.B. A Clai►n for an adjustment in Contract Time shall be prepared in accordance with the provisions of paragraph 12.02.B. �ach Claim shall be accompanied by claimant's written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. B. Engineer will issue a written recommendation to the Owner in wricing within 30 days after eeceipt of the last submittal of the claimanc or the last submittal oTthe opposing party, if any. C. If �ngineer does not issue a written recommendation within the time stated in paragraph 10.O5.B, a decision denying the Claim in its entirety shall be deemed to have been issued 31 days after receipt of the last submittal of the claimant or the last submittal of the opposing party, irany. D. No Claim for an adjustment in Contract Price or Contract Times (or Milestones) will be valid if not submitted in accordance with this paragraph 10.05. Add the following paragraph afier Paragraph 10.05 C[ainas, Part B Nolice: Exhibit D w � a_�, �� _ �.� � �_ —�..� � _....� File 6041 Page 81 of 139 SG54 SC-56 � ! 1 ` � � l, � � ' ':' � , � . � C. S2lL)C01911"QClOJ" C%G1177.5, Da�ry of Con�raclo�� As provided in paragraph 6.06 G, the provisions of the contract documents are binding on and apply to SubContractors insofar as they are applicable to tl�e work performed by the SubContractor. This especially includes, without litnitation, the terms of the gener�al conditions, and any addendums or suppleir�entary conditions modifying the general conditions. In regard to any claim for additional time, additional compensation, or other darnages filed by a SubContractor againsY ihe Contractor, the Contractor agrees to thoroughly review and analyze the claim in good faith as to its merits and amount. Contractor also agrees that it will not present or pass the claim through to the Owner as if it were the Contrator's claim, if the claim is subject to any valid legal or equitable defenses available to either Owner or Contractor under the contract documents, the terms of the subcontract, or applicable statutory or case law, which defenses include, but are not limited to, any and all notice and claim defenses arising under the subcontract or the contract documents. !f tl�e SubContractor claim is subject to any valid lega] or equitable defense under the contract documents, the subcontract, or applicable statutory or case law, Contractor shall, as a condition precedcnt to the filing of any claim against the Owner by virtue of any derivative liability ot the Owner under the contract dacuments or applicable law, defend against the invalid SubContractor claim in a court of competent jurisdiction, at Contractor's sole cost and expense. Failure of Contractor ta defend against invalid SubContractor claims as required in this paragraph shall constitute a complete and unequivocal waiver of any right of Contractor to seek reimbursement from Owner. Further, if the Contractor fails to provide the defense required above, Contractor shall be obligated to indemnify and reimburse Owner for all expenses and costs, including but not limited to attorney's fees and expert witness costs, incurred by Owner in defending any lawsuit based upon a SubContractor claim, in which lawsuit a valid legal or equitable defense was available under the contract documents, the subcontract oi• applicable statutory or case law. In Section 10.05 Claims, revise the existing headings of Paragraphs C, D, E and F to read D, E, F and G. Amend paragraph 1 1.01 A. ofthe General Conditions by striking out the 1'ollowing words in the third sentence: "those prevailing in the locality of the Project, shall include only the following items, and shall not include aiiy of tlie costs itemized in paragraph 11.01 B." and adding the following: "those paid for the Work included in the Contract Price, shall include only the following itetns, and shall not include any of ihe costs itemized in paragraph 1].O1 B. Contractor shall provide certified payroll records listing personnel classifications and salaries for all individuals involved in additiot�al Work. Salaries for those not included in the certified payroll will be considered as being compensated under paragraph 11.01 B.". Amend paragraph ] 1.0] A.1 of.the General Conditions by striking out the Tollowing words.in the second sentence: "without limitation superintendents, foreman" and adding the following: "one foreman (unless agreed upon prior to be�;inning Work). Amend paragraph 11.01 A.1 ofthe General Conditions by striking out the following words in the last sentence: "be included in the above" and adding the following: "not exceed 1.5 times regular pay and shall be included in the above" �.........w_____.,_ ��.__, �..._.. �..� �.�_. Gxhibit D File 6041 Page 82 of 139 sc-s� SC-58 SC-59 SC-GO SC-GI , r • � � � r r �" � � � Amend paragraph 1].01 B.I by adding the followina to the list of excluded personnel in the first sentence: Superintendents Amend paragraph ] 1.01 D. by modifying the sentence to read as follows; "..... and submit in a form and at intervals acceptable to Engineer ..." Delete Paragraph 11.03 C. of the General Conditions in its entirety and insert the following in its place: C. The unit price of an item of Unit Price Work shall be subjecc to reevaluation and adjustment in accordaiice with par.agraph 10.05 under the following conditions: ]. if the total cost of a particular item of Unit Price Work amounts to twenty percent (20%) or more of the Contract Price and the variation in the quantity of that particular item of Unit Price Work perforn�ed by the Contractor differs by more than twenty percent (20%) f'rom the estimated quantity of such item indicated in the Agreement; and ifthere is not corresponding adjustments with respect to any other item of Work; and 3. if Contractor believes that Contractor has incurred additional expense as a result thereof; or if Owner believes that the quantity variation entitles Owner to an adjustment in the Unit Price, either the Owner or Contractor may make a claim Tor an adjustment in the Contract Price in accordance with Article 1 I.O1 if the parties are unable to agree as to the effect of any such variation in the quantity oi'the Unit Price Work performed. Add new paragraph following 11.03 1].04 No Clainrs for Delays A. The Contractor agrees to make no claims for damage for delay in the performance of the Contract occasioned by any act or omission to act ofthe Owner, Engineer, or any ofthe Engineer's or Owner's agents, and agrees that any such claim shall be fully compensated by an extension of time, as set forth in a Change Order, to complete performance of the work as provided herein. Delete Paragraph ) 2.0•1 A. of the General Conditions.in its entirety and insert the following in its place: A. The Contract Price may only be changed by a Change Order or Written Amendment. Any claim by Contractor for an adjustment in the Contract Price sliall be in writing to the Engineer and will be processed in accordance witl� Article 10 hereof. Exhibit D `�"'� �� .u...M� _. __ File 6041 Page 83 of 139 SC-62 SC-63 SC-64 . � � t � 1 � � 1 �' � ,•� • � Delete Paragraph 12.02 A. of ihe General Conditions in its entirety and insert the following in its place: A. The Contract Times (or Milestones) may only be changed by a Change Order or Written Amendment which shall be processed in accordance with Article 10 hereof. Amend paragraph 12.03 A. by deleting "abnormal weather condition:' Add following: No time extension will be allotived for �veather conditions. Add the following paragraph to 13.03.B of the General Conditions: 13.03.B.3 for tests or inspections resulting from failure of initial test and inspections. The Contractor shall be responsible for paymenY of these tests and inspections. Add the following to 13.03 of the General Conditions; During the progress of tl�e work, all materials, equipment and workmanship shall be subjected to such inspections and tests as will assure conformance with the contract requirements. Inspections and tests as required will be performed by an independent testing laboratory approved by the Owner and paid for by the Contractor. All inspection and testing reports shall be furnished to the Owner and the Engineer as they are completed. The Contractor shal] be responsible for coordination of all testing. The Owner shall have the right to perform additional testing by its own testing laboratory if it desit•es. The Contractor shall furnish at his expense all necessary specimens and sainples for such additional testing. Any test results by the Owner or his representative not meetSng the specifications will require additional tests and inspections paid for by the Contractor. The Engineer will determine the additional testing and extra inspection required to obtain substantial conformance with the Contract. In the event materials, canstruction items or products incorporated in the work fail to satisfy the minimum requirements of the initial test, appropriate additional tests shall be made as directed by the Owner to determine the extent of the failure and to verify that the corrective measures have brought the item up to specification requirements. The cost of all testing necessary to determine the extent of the failure and the adequacy of the corrective measures shall be the responsibility of the Contractor. Tests, unless otherwise specified, shall be made in accordance with the latest methods ofthe Atnerican Society for Testing and Materials. The Contractor sliall provide such facilities as the Owner may eequire for collecting and forwarding samples and shall not use the materials represented by the samples until tests l�ave been made. The Contractor shall furnish adequate samples without charge. The inspections and Yests rnade by the Owner, its inspectors or agents shall or�dinarily be made without cost to the Contractor unless otherwise expressly specified in the eontract documents. The Contractor shall furnish without additional cost to the Owner such materials for testing as may be reasonably necessary. Retesting after failure to pass tests shall be at the expense of the Contractor. Should the percentage of rejected material or equipment be unreasonably large, the additional cost of such inspections and tests resulting therefrom sl�all be borne by the Contractor. The Owner shall judge what is extra inspection and sha11 detertnine the additional cost thereby and payable by the Contractor. _.�.�_u .�m__�__. �� ..._�..._�_ Exhibit D File 6041 Page 84 of 139 SC-65 SC-66 SC-G7 SC-68 �xhibit ll CITY Ol+ DI:NTON G�N�RAL CONDITIONS FOR WAT�R PROJ�CT CONSTRUCTTON Delete Paragraph 13.04 of the Genera] Conditions in its entirety and insert the following in its place: ] 3.04 Uncovering Work A. If any Work is covered contrary to the request of Engineer, it must, ii'requested by Engineer, be uncovered for Cn�ineer's observation and replaced at Contractor's expense. B. In circumstances different from 13.04 A above, irEngineer considers it necessary or advisable that covered VJo�k be observed by the Engineer or inspected or tested by athers, Contractor at Engineer's request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as Engineer may require, that poition ofthe Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is defeetive, Contractor shall pay all Claims, costs, losses, and damages (including but not limited to all fees and eharges of En�ineers, architects, atforneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and Owner shall be entitled to an appropriate decrease in the Contract Price. Add the following to paragraph 13.07 A.: When early acceptance of a Substantially Completed portion of the Work is accomplished in the manner indicated, the correction period i'or that portion of the Work shall commence at the time of substantial completion of that Work. Delete Paragraph ] 3.08 A, of the General Conditions in its entirety and insert the following in its place: A. If, instead of requiring correction or removal and replacement oi'defective Work, Owner (and, prior to Engineer's recommendation of final payment, Cngineer) prefers to accept it, Owner may do so. Contractor shall pay a11 Claims, cosis, losses, and damages (including but not ]imited to all fees and charges of Engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to Owner's evaluation of and determination to aceept such defective Work (such costs to be approved by Engineer as to reasonableness) and the diminished value of the Work to the extent not otherwise paid by Contractor pursuant to this sentence. If any such acceptance occurs prior to Engineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and Owner shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. Delete Paragraph 13.09 C. of the General Conditions in its entirety and insert the following in its place: ' C. All Claims, costs, losses, and damages (including but not limited to all fees and charbes of �ngineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by Owner in exercising the rigl�ts and remedies under this paragraph 13.09 will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents witli respect to the Work; and Owner shall be entitled to an appropriate decrease in tlie ConU-act Price. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement orwork of others destroyed or damaged by correction, removal, or replacement of Contractor's defective Work. ExhibitD _ � e.e._.��ma...�.�.._ �..LL��W..� � . File 6041 Page 85 of 139 SC-G9 SG70 SC-71 SC-i2 1' � ' 1 � • 1' � ,' � , � � . � Delete paragraph 14.01 of the General Conditions in its entirety and repiace with the following para�;raph: The schedule orvalues submitted as provided in paragraph 2.OS.B.3 will serve as the basis for progress payments, subject to acceptance Uy �nbineer, and will be incorporated into a form of Application for Payment acceptable to Gngineer. Progress payments on account of Unit Price Work will be based on the number of units completed. Contractor shall submit a detailed scl�edule of values of the work to be performed on the project in coniormance with Section 01310 Schedules, Reports and Paymei�ts. belete Paragraph 14.02 A3. of the General Conditions in its entirety and insert the following in its place: 3. The amount of retainage with respect to progress payments wiil be five percent (5%) of the total amount of completed Work and properly stored materials on hand. In addition to the amount retained above, the Owner may retain additional amounts as set forth elsewhere in the Contract Dacuments. Amend the first sentence of paragraph 14.02 C. ]. to read as follows: "Thirly (30) days afl:er presentation of the Applicatian for Payment to Owner ...." Delete 14.02 D. 1. d. Add new paragraphs immediately after paragraph 14.02 D.l .c. of the General Conditions which are to read as follows: d. Owner has been notified of Contractor's failure to make payments to SubContractors or Supplie'•s or for labor; e. Contractor's failure to submit up-to-date record documents as required by GC- 6.12; f. Contractor's failure to submit monthly progress schedule updates ot• revised schedules as requested by ihe Owner or Engineer; g. Contractor's failure to provide Project photographs required by Specifications; h. Unsatisfactory progress of the wor�k not caused by coriditions beyond the Contractor's control; Contractor's failure to carry out instructions of the Ov,mer or his representative; , j. Owner has a reasonable doubt that the contract can be completed i'or the balance then unpaid; k. Damage to another Contractor; I. Claim filed by or against Contractor or reasonable evidence indicating probable filing of claims; or _ _m._� �____.....� _._. — _�.....� . .m_�,, �w_._ Exhibit D File 6041 Page 88 of 139 � � 1 � 1 ! � ! � < • � ! ; m. Owner has actual knowledge af the occurrence of any of the events enumerated in paragraphs 14.02.B.S.a through 14.02.B.5.1 or paragrapl7 15.02.A. �4��:�-��ae.��►f�,a-��=��a��c1¢�te�� e+ti�c�=��-1i=�. �—��a�u+�c��a�x�•��aty1;��4��d:��d��y��a�a��'�� €�is�s=�1��c�-�� r�,;..a.,..,.�.,� �,.��a��i�.��c��a��-��c��r��i� r�� i��,3�r°;�- i�.—�,,.�Fi��c=��%��a��ii�.g� .•};��ir��a��=-��3��a��€ ��fi�-��t-i�h -��ai�d=+��-�v--��'��i�3��it�� .�„—.€��`��#�s��1�i��a�s�i��ai�l'�e�-J ��-��s�s��-��d�.�e�r-��-��e �'��i �e-�a�r�t�a�-��-��i�� t-��d=�� .��a��aa��a��c��: �f��g�a�a�€ac��.,��a€��1��r��la�{'��c�i��=��t� ��€��a��.. -- ��r��t�t� �.n� a,�_.. �_�. -�_.�. ��m��c��a�["�1��:� �k1��; ��:+�dJ ,_�.. m� _ _ �?�� i��r�?�°��e�� e�:�t3��3 �.�.��s��a•�d�'��c��r��r�� "��L�.{��9 ��s��#i��i��-a��a�� ..� ��:�1��-�{.�:� .�.�m .__ __. ��a�ic,��i�,��.�.��t��s�t�d�+� ��(#��;-�=��:�3� � �.._.�. �.��... . — -- ,.w _ ,._. �� ;�� m ��,n_.� _..� ��i€��-�°i�� 1��c-�� d��l�:� -- — . :'� . ��C3:i�� a =�I�� -�c��=��a d-i��; �i� t� ��1=��t-�l�a.� �s�i �� #t��fl�y—�-� � c. Costs for tests performed by the Owner to verify that work previously tested and found to be defeciive has been corrected. Verification testing is ta be provided at the Contractor's expense to verify products or constructed works are in compliarice afier corrections have bzen made. delete Paragraph 14.04 of the General Conditions in its entirety and insert the following in its place: I 4.04 Subslan[ia! Carrpletion A. When Contractor considers the entire Work ready for its intended use Contractor sl�all notify Owner and Engineer in writing that the entire Work is substantially cornplete (except foi� items specifically listed by Contractor as incomplcte) and request that Engineer issue a certificate of Substantial Completion. Promptly thereafier, Owner, Contractor, and Engineer shall make an inspection of the Work to determine the status of completion. lf En�;ineer does not consider the Work substantially complete, Gngineer will notify Contractor in wriYing giving the reasoiis therefor. lf Engineer considers the Work substantially complete, .�... _ � =u. - - . _w,..� �.,�...� Exhibit D File 6041 Page 87 of 139 1: � ,; � � • , , � � � . � � � Cn�ineer wil] prepare and deliver to Owner a tenYative certiticate of Substantial Completion which shail fix the date of Substantial Completion. There shall be attached to the ceriifcate a tentative list of items to be compleYed or corrected before final payment. Owner will thereafter �•eview the tentative ceitificate of Substantial Completion and make a final determination as to substantial completion which will be communicated to the Contractor in writing within 20 days after receipt of the tentative certificate. SC-75 Delete Paragrapl� 14.07 A.1. of the General Conditions in its entirety and insert the following in its place: A. H�)�)I!L'pLIUJ? f01^ Pay�srenl 1. After Contractor has satisfactorily completed all corrections identifed during the fnal inspection and has delivered, in accordance with the Cantract Documents, all maintenance and operating instructions, schedules, guarantees, IIonds, certificates or other evidence of insurance certifcates of inspectian, marked-up record documents (as provided in paragraph 6.12), and other documents, Contractor may make application for final paymer�t following the procedure for progress payments. SC-76 7A�#��d"��ds��+��1�a�{��=�� g��i'�-:��Cr, i�� r€�d��+�t��#c�t��t��t��t�i�i�,w4'��l�ti��+�€`�3�e��.��i��t�3�� €��4��F��a��-a��i��a��1��t�=€�c�t. �=�s��C��r�a�a��id��€€�d��-��m�a�;��a��1i��r�a-�d�� C'��t��r�r�'��i��a�3rat��c�t��saw��r��1��-�€��-�� Si�t�r��d��€��#��A��a�� a��3�� ° ��,��i��,��;�,��a��a�c=�c•��t�J��s3t��d��3`°t�+3:�c��1t��i��u��'��d�t�is��'��a.�ia�r� ��m�c��,a,a��c��s��a��a-�t��s.=-�.��-��.��=i�:��;�t��e��•-��r��a�v��1��c-��c�i�y�� a��a��1��-�� %€�a�#r��-t�,�-'��a�€��v�r��a��t��--��a € �I��=,;;�d11�=��1��t��=3 ��c-�€�c�ci��a�a��c��`�a��;�a�; �€��i��Yt�;��-�t��t<x�; ��ta�—=��s��+��c��=-�+��i��u��ta��,�;�a�-�-f��#�€�I�+�dd�:��t&: �� d�.�� c��t�a��f�cl �avi�a� r� �k��x�a��l��da�ati��l ��r�t�i��ac�-��a�i�kt��€�t=��at�•��j�t�i{��-i�a��e�t��a�.�� i�y��=��c,r�}�rs�t,.,��er��€�d�t�a��+��+-��i��,��c�a��r€��i��c��i�t�c�i�ta��r��=—��irlad�r�a €�z�� a5��c��x��s�e�w��{�-��w��c��-��#��€�ta�� v�=�:�f��a��a�t=��d �,��a<��c�a�a� i��a�-�a��;c:�l��a� �w��c�aw�a��r;�+��t�a�� 1��:�� }a��cxt•€�f�#��C"��a�r,�t��c��%r��a-�a�-�zc�a�� ,++t��-d�l��i�-�� `� ��r� l�`�t.�::. SC-77 Delete Paragraph 14.08. of the General Conditions in its entirety and insert the following in its place: ] 4.08 Fina/ Conrplelion Delayed A. If after Substantial Completion of the Work final completion thereof is rnaterially delayed though, no fault of the Contractor, and the Cngineer so confirms, Owner, upon certification by Engineer, and without terminating the Agreement, may make payment of all or a portion of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for the Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if Bonds have been furnished as required in Paragraph 5.01, the written'consent of the surety to payment ofthe balance due fo►• that partion ofthe Work fully completed and accepted shall be suUmitted by the Contractor to Engineer prior to certifications of such payment. Such payment, if approved, sl�all be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. SC-78 Delete 1'aragraph 14.09. of tl�e General Conditions in its entirety and insert tlie following in its place: , �........_.. .. �_ �.a�� _�..��_ ExhiUit D File 6041 Page 88 of 139 SC-79 � � 1 � � � � '' � ; � ' � 14.09 17�aiver of CluinTs A. The acceptance of final payment by the Contractor shall constitute a waiver of all claims Uy Contractor against Owner. DeleYe Paragraph I 5.01 orthe General Conditions in its entirety and insert the following in its place: i 5.01 Owr�er's Righ! to Tempa•arily Suspend Work A. Reasons for Suspension. The Owner shall have the right by written order to temporarily suspend the work, in whole or in part, wlienever, in the judgment of the Owner, such temporary suspension is required: in the interest of the Owner generally, , 2. due to government or judicial controls or orders which make performance of this contract temporarily impossible o� illegal, to coordinaie the work of separate Contractors at the job site, 4. to expedite the completion of a sepaeate contract even though the completion of this particular contract may be thereby delayed, 5. because of weather conditions unsuitable for performance of the work, or 6. because the Contractor is pr�oceeding contrary to contract provisions or has failed to correct conditions considered unsafe for workmen. B. The written order of the Owner to the Contractor shall state the reasons for suspending the work and the anticipated periods for such suspension. Upon receipt of the Owner's written order, the Contractor shall suspend the work covered by the order and shall take such means and precautions as may be necessary to properly protect the finished and partially finished work, the unused materials and uninstalled equip�nent, including the providing of suitable drainage about the work and erection of temporary structures where necessary. The Contractor shall not suspend tl�e work without written direction from the Engineer and shall proceed with the work promptly when notified by the Engineer to resume operations. C No additional compensation shall be paid to the Contractor for such suspension under Paragraph 15.01 A.fi. above or otherwise where same is caused by the fault of the Contractor. Where such temporary suspension is not due to the fault of the Contractor, he shall be entitled to: � l. An equitable extension o1'working time for the completion of the work, not to exceed the delay caused by such temporary suspension, as determined by the Owner; and 2. the actual and necessary costs of properly protecting the finished and partially f nished work, unused maeerials and uninstalled equipment during the period or th'e ordered suspension as determined by tlie Owner as being beyond the contract requirements, such costs, if any, to be determined on the basis set forth in Article ]2 ofthe General Conditions, and 3. where the Contractor elects to move equipment fi•om tl�e job site and then return it to the site wlien the work is ordered resumed, tlie actual and necessary costs of tliese moves, in an amount determined by the Owner under the provisions of Article 12 of the General Conditions Exhibit D _�e..�...�� a.a �..n�� _.. �.._ File 6041 Page 89 of 139 SC-80 � 1 � 1 . � � 1 � �,, ' � , � � Delete Paragraph 15.02 of the General Conditions in its entieety and insert the fo]lowing in its place: ] 5.02 Conb�acla• Defa:�/�: Oi7�ner;s Righl Po Sus�end Wa•k and A��a:rl Ca7U•ace A. The work or any portion of the work under contract shall be suspended immediately on written order of the Owner declaring the Contractor to be in default. A copy of such notice shall be served on the Contractor's surety. The contract may be annulled by the Owner for any good cause or causes, among others of which special reference is made to the following: • • ]. failure of the Contractor to start the work within l0 days from date specified in the written work order issued by the Owner fo begin ihe work; 2. substantial evidence that the progress of the work being made by the Contractor is insufficient to complete the work within the specified working time; 3. failure of the Contractor to provide sufficient and proper equipment, materials or construction forces for properly executing the work; 4. substantial evidence that the Contractor has abandoned the work or discontinuance of the performance of the work or any part chereof and failure to resume performance within a reasonable time after notice to do so; 5. substantial evidence that the Contractor has become insolvent or bankrupt, or otherwise financially unable to carry on the work; 6. deliberate failure on the part of the Contractor to observe any requirements of these specifications oe to comply with any orders given by the Engineer as provided for in these specifications; 7. failure of the ConYractor to promptly make good any defects in materials oa- workmanship, or any defects of any nature, the correction of which has been directed in writing by the Owner; 8. substantial evidence of collusion for the puepose of illegally procuring a contract or perpetrating fraud on the Owner in the construction of work under contract; 9. repeated and flagrant violations of safe working procedures; ] 0. the filing by the Contractor of litigation against the Owner prior to final completion of the work. B. When the work is suspended for any of the causes itemized above, or ror any other cause or causes, the Contractor shall discontinue the work or such part thereof as the Owner shall designate, whereupoi7 the surety may either at its option assume the contract or tl�at portion thereof which the Owner has ordered the Contractor to discontinue and.perform the same or, with the.written consent of the Owner,.sublet the same, prov�ded, however, that tl�e surety 'shall exercise its option withid two weeks after the written �yotice to discontinue the work ]�as been served upon the Contractor and upon the surety or its authorized agents. The surety in such event shall assume the Contractor's place in all respects and shall be paid by the Owner for all work performed by it in accordance with the terms of the contract, but in no event shall such payments exceed the contract amount, regardless of the cost to the surety to complete the work. -_ �_.�..._.._�._. ..... M..__.�_._ v.____._ Exhibit D File 6041 Page 90 of 139 SC-81 � � 1 � � �' �' ' • ! � All monies remaining due the Contractor at the iime of his derault shall thereupon become due and payable to tl�e surety as the work progresses, subject to all terms of the contract. In case the surety does not, within the hereinabove specified time, exercise its obligation to assume the contract or that portion thereof which the Owner has ordered the Contractor to discontinue, then the Owner shall have the power to complete by contract or otherwise, as it may determine, the work herein described or such part thereoi'as it may deem necessary; and the Contractor hereto 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 oT every kind provided by the Conteactor for the purpose of his work and to procure other tools, equipment and materials for the completion of the same and to charge to the account of the Contractor the expense of said contract for labor, materials, tools, equipment and expenses incident thereto. The expense so charged shall be deducted by the Owner out of such monies as may be due or may at any time thereat�er become due the Contractor under and by virtue of the contract or any part thereof. C. The O�vner shall not be requ ired to obtain the lowest bid for the work of completing the contract, but the expenses to be deducted shall be the actual cost of such work. In case such expense is less than the surn which would have been payable under the contract if the same had been completed by the Contractor, then in such case the Owner may pay the Contractor the difference in the cost, provided Yhat the Contractor shall not be entitled to any claim for damages or for loss of anticipated profits. D. In case such expense shall exceed the amount wl�ich would have been payable under the contract ifthe same had been completed by the Contractor, the Contractor and his surety shall pay the amount ofthe excess to the Owner on notice feom the Owner for excess due including any costs incurred by the Owner, such as inspection, legal fees and ]iquidated damages. When any particular part of the work is being carried on by the Owner by contract or otherwise under the provisions of this section, the Contractor shall continue the remainder of the work in conformity with the terms of the contract and in such a manner as not to hinder or interfere with the peeformance of workmen employed as above provided by the Owner or surety. Delete Para�raph 15.03 of the General Conditions in its entirety and insert the following in its place: 15.03 Te�•minulion for Convenience of the Oivne�- A. The performance of the work under this contract may be terminated by the Owner in whole or from time to time in part, in accordance with this section, whenever the Owner shall determine that such termination is in the best interest of the Owner. Any such termination shall be effected by mailing a notice of termination to the Contractor specifying the extent to which performance of work under the contract is tei•minated, and the date upon which such termination becomes effective. Receipt ofthe notice shall be deemed conclusively presumed and established when the letter is placed in the United States Mail by the Owner. Further, it shall be deemed conclusively presumed and established that such termination is made with just cause as therein stated; and no proof in any claim, demand or suit shall be required of the Owner regarding sucli discretionary action. i3. After receipt of a notice of termination, and excepY as otherwise directed by the Engineer, the Contractor shall: stop work under tl�e conYract on the date and to the extent specified in the notice of termination; 2. place no further orders or subcontracts for materials, services or facilities except as may be necessary i'or completion of such portion the work under the contract as is not terminated; 3. tenninate all orders and subcontract to the exient that they eelate to the performance of work terminated by the notice of tennination; Exhibit D �wv�p _ �- � File 6041 Page 91 of 139 1 � � 1 1 � '' � " � � . � 4. transfer title to tl�e O�vner and deliver in the manner, at tlie times, and to the extent, if any, directed by the Engineer: a. the fabricated or unfabricated parls, �aork in process, completed work, supplies and other material produced as a pari of, or acquired in conr�ection witl� the performance of, the work terminated by the notice of termination; and b. tlie completed or partially completed plans, drawings, information and other property which, if the contract had been completed, would have been required to be furnished to the Owner. 5. complete performance of such part of the work as shall not have been terminated by the notice oftermination; and 6. take such action as may be necessa�y, or as the Gngineer may direct, for the protection and preservation of the property related to its contract which is in the possession of the Contractor and in which the Owner has or may acquire an interest. At a time not later than 30 days after the termination date specified in the notice of termination, the Contractor may submit to the Engineer a list, certif ed as to the quantity and quality, of any or all items of termination inventory not previously disposed of, exclusive of items the disposition of which has been directed or authorized by the Engineer. Not later than 15 days thereafter, Yhe Owner shall accept title to such items and remove them or enter into a storage agreement covering the same, provided that the list submitted shall be subject to verification by the Engineer upon removal of the items, or, if the items are stored, within 45 days from the date of submission of the list, and provided that any necessary adjustments to correct the list as submitted shall Ue made prior to fina] settlement. C. Within 60 days after notice oftermination, the Contractor shall submit his termination claim to the Bngineer in the form and with the certification prescribed by the lEngineer. Unless one or more extensions in writing are granted by the Engineer upon request of the Contractor, made in writing within such 60-day period or authorized extension thereof any and all such claims shall be conclusively deemed waived. D. Subject to the provisior�s of Paragraph 15.03 C., the Contractor and Owner may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or• partial termination of work pursuant hereto, provided that such agreed amount or amounts shall never exceed the total contract price as reduced by the amount of payments otherwise made and as fiarther reduced by the contract price of work not terminated. The contract shall be amended accordingly, and the Contractor shall be paid the agreed amount. No amount shall be due for lost or anticipated profits. Nothing in Paragraph 15.03 E., hereunder, prescribing the amount to be paid to the Contractor in the event of failure of the Contractor and the Owner to agree upon tl�e whole amount to be paid to the Contractor by reason of the termination of work pursuant to this section, shall be deemed to limit, restrict or otherwise deYermine or affect the amount or amounts which may be agreed upon to be paid to Yhe Contractor pursuant to this paragraph. E. In the event of tl�e failure of the Contractor and the Owner to agree, as provided in Paragraph 15.03 D., upon the whole amount to be paid to the Contractor by reason of the termination of work pursuant to this section, the Owner shall determine, on the basis of information available to it, the amount, if any, due to the Contractor by reason of the termination and shall pay to tlie Contractor tl�e amounts determined. No amount shall be due for lost or anticipated profits. . � F. Jn ara•iving at the amount due the Contractor under this section, there shall be deducted: 1. all unliquidated advance or other payments on account theretofore made to the Contractoe, applicable to the terminated po��tion of this contract; 2. any claim which the Owner may have against the Contractor in connection with this contract; and _—._�a. � .vw � �.�.� �w_.._� .,._______.._ �__.� ._a..� � Cxhibit D File 6041 Page 92 of 139 � il` �; 1 � ; � � �'' � � � ! � 3. the agreed price for or ihe proceeds of sale of any materials, supplies or other things kept by the Contractor or sold, pursuant to the provisions of this clause, and not otl�erwise recovered by or creditcd to the Owner. G. lf tl�e termination liereunder be partial prior Yo tl�e settlement of the terminated portion of this contraet, the Contractor may file witl� the �ngineer a request in writing for an equitable adjustment ofihe price or prices specifed in the contract relating to the continued portion of the contract (the portion not terminated by the notice of termination), and such equitable adjustmenf as may be agreed upon shall be made in such price or prices; nothing contained herein, however, shall limit the right of the Owner and the Contractor to agree upon the amount or amounts to be paid to the Contractor for the completion of the continucd portion of the contract wl�en said contract does not contain an established contract price for such continued portion. I-T. Nothing contained in this section shall limit or alter the rights which the Owner may have for termination of this contract under Paragraph 15.02 hereof entitled "Concractor Default; Owner's Right to Suspend Work and Annual Contract" or any other right which Owner may have Tor default or breach of contract by Contractor. SC-82 Delete Paragraph 15.04 in its entirety. SC-83 Delete Paragraph 16.0] ofihe Gener•al Conditions in its entirety. SC-84 In paragraph 17.01 A., insert the words "return receipt requested" after the words "certified mail" in line 6. SC-85 In paragraph 17.02 A., remove "such day will be omitted from the computation" in line 6 and replace it with "then the last day of such period shall be the next working day." SC-86 SC-87 Add the following paragraph after paragraph 17.05 A.: B. Exclusive venue for any action under this Contract shall be a court of competent jurisdiction in Denton County, Texas. Add the following paragraph after paragraph 17.06: 17.07 Fixed Dale Cont��acls A. All references and conditions ror a"calendar contract" in tl�e General Conditions shall apply for a "Fixed Date Contract." �.��..�.. �._.....m.�_.�._a�. �.,_..__ �_� Exhibit D File 6041 Page 93 of 139 SC-88 SC-89 � 1 � � � • , � 1 � � • • ' � ' • � Add the following paragraph after paragraph 17.07: 17.08 No Waiver of Legal Righls A. Inspection by the Engineer; any order, measurement, quantity or certificate by the Engineer; any order by the Owner for payment of money; any payment for or acceptance of any work; or any extension of time or any possession taken by the Owner shall not operate as a waiver of any provisions of the co�itract or any power- therein reserved to the Owner oi any rights or damages cherein provided. Any waiver of any b;each of contract shall not be held to be a waivcr of any other or subsequent breach. The Owner :eserves the right to correct any error that may be discovered in any estimate that may have been paid and to adjust the saroe to meet the requirements of tl�e contract documents. The Owner reserves ihe right to recover by process of law sums as may be sufficient to correct any error or make good any defrciency in the work resulting from such error, dishonesty or collusion by the Contractor or his agents and the Engineer or his assistants, discovered in the work aier the final paymenc has been made. Neither final acceptance of the work, nor final payment shall relieve the Contractor of responsibility for faulty materials or workmanship, and the Contractor shall promptly remedy any defects due thereto and pay for any damage to other work resulting therefrom. Likewise, neither final acceptance nor final payrnent, nor partial or entire use or occupancy of ihe work by the Owner shall constitute acceptance of work not done in accordance with the contract documents or relieve Contractor oi'liability with respeci to any expressed or implied warranties or responsibility for faulty materials or workmanship, whether same be patently or latently deTective. Add the fotlowing paragraph after paragraph 17.08: 17.09 Equal Enapdoymen! Opportunrry A. During the performance of ihis contract the Contractor agrees as follows: 1. Contractor shall not disct•iminate against any employee or applicant for employment because of race, color, religion, sex, age or national origin. The Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, sex, religion, age or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transi'er; recruitment or recruitment adveetising; layoff or termination, rates of pay or other forms of compensation; and selection for training, including apprenticesliip. The Contractor agrees to post in conspicuous places, available to employees or applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. Contractor shall, in all solicitations or, advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, r�ational origin or age. 3. Contractor shall send to each labor union or representative of woi•ket-s with which he has a collective bargaining agreement or other contract or understanding a notice to be provided, advising the said labor union or workers' representaiives of the Contractor's commitments under this section, and sha•ll post copies of the notice in conspicuous places available to employees and applicants for employment. 4. Contractor shall include the provisions of this section in all subcontracts pertaining to the work. 5. During the course ofthe work, the Contractor shall submit to the Engineer, on a monthly basis, a breakdown by minority group of all employees at the site of the work. ExhiUit D�.�_.... _�er...�...��., ��_.� . File 6041 Page 94 of 139 SC-90 SC-91 SC-92 ,1 � � � ! 1 � ' � ' ' � ! � Add the rollowin�; paragraph after paragraph 17.09: 17.10 Loss of An[icipaled Profits A. Contractor will not be entitled to loss of anticipated profts pursuant to any claim under this Agreement. Add the rollowing paragraph after paragraph 17.10: ] 7.11 Obligalion to Perfor�rr Funclions A. Any failure or neglect on the part of Owner, Engineer or inspectors to enforce provisions herein dealing with supervision, control, inspection, testing or acceptance and approval of the work shall never operate to relieve Contractor from full compliance with the contract documents nor rendes• Owner liable to Contractor for money damages, extensions of time or increased compensation of any kind. All bonds must be submitted on Owner forms. Copies are attached. SC-93 Insurance Certificate must be submitted and issued with the Owner ]isted as the certificate holder. SC-94 SC-95 SC-9G The Cancellation Policy must read as follows: "Said policy shall not be cancelled, non-renewed or materially changed without 30 days advance written notice being given to the Owner, except when the policy is being cancelled for nonpayment of premium in which case ]0 days advance written notice is required." By signing the proposal sheet, the representative has read and understands all plans, specifications, general design standards involved with this project. Deleted by Intention. SUBCONTRACTORS Each bidder shall submit the names of the SubContractors and material suppliers proposed for such portions of the work as are designated in tlie bidding documents, and the names of the SubContractors proposed for the principal portions of work. The Bidder will be required to establish to the satisfaction of the Owner the reliability and responsibility of che proposed SubContractor to fumish and perform such porlions of tl�is work. Prior to the award of the contract, the Owner will notify ihe Bidder in writing if the Owner has a reasonable objection to any SubContractor on the list. If the Owner objects to any SubContractor on the list in writing, the Bidder may, at its option, witl�draw its bid without forfeiture•of bid security, notwithstanding ar�ytl�ing to the contrary herein. The Bidder may submit an acceptable substitute without a change in the bid price. SubContractors and other persons and organizations proposed by the Bidder and accepted by the Owner must be used on the woi•k for which they were proposed and accepted and shall not be changed except witl� the written approval of tl7e Owner. 1 � � .�.. -.....-.�....�....._____.�.___ � .,_. � � .� _..._.. Exhibit D File 6041 Page 95 of 139 �xliibit D CITY OF DENTON GEN�RAL CONDITIONS FOR WAT�R PROJ�CT CONSTRUCTION � � r � . '� ,, / r „ ,; r � � Respondent's attenlio» is dh�ecled l0 1he insurance ��eyuirenre��ts belo��. It is highly reconrn7ended thal responde��ls confer• wilh their res7�eclive i»su�^ance ca�^rie�•s or• broke�•s lo deternzine in udvance of Proposal/13id sub��ission ihe availabilily of 1T7SZl1'L119CG' cerlificates and endorsenrenis as presc��ibed and provided hereiri. If a�a appar•en! Zoti�� i�espondenl fails to canply slrictly wilh ihe insurance requirenrents, thn.t respondenl n�uy be c�isqi!alifred fronz ati�a�•d of the conh•act. Upon c.onlrac! awa��c� all in.cw�ar�ce reyui�•ements shall become cor�lraclual obliga[rnns, which lhe successful conb�actor shall have a duty lo nrai��lain ll�roughoul !he cow°se of this conl��act. STANDARD PROV�SIONS: Wiihout /inaituzg any of the ollrer ob/igalions or Iiabilrlies of the Cazfrac[or, tlre Cniilraclor s/rnll provide nnd i�taintai�: u►Tti! t/re co�rtracted work has been co»rplefed a�zd accepted by f/te City of Denlon, Owner, the �ninimunt ir7sura�zce coverage as indicaled /:ereinafter. As soo�: as prr�cticable afler �:otifrcation of contract award, Co»tractor slial! file widr i1:e Purc/iasi�:g Deparinzeirt satisfuctory certifr.cates of insurance ii:cludi��g aizy applicable addeiTdunr or e�idorsen:ei�ts, co�zlaini►tg tlte contrac[ number and litle of tlte projecl. Ca:lraclor may, upo�t wriPten request to t/re Purchasing Departmenl, ask for c/arifrcalio►z of a�:y iizsurance requireme�zts nt any tir�te; however, Co�ilraclors nre stroi:gly advised to �nake suc/r requesls prior to proposal/bid openi�rg, si�:ce the i►zsurm:ce reguiren:ents �:ay not be modifred or waived after proposal/bid opening unless a wrilten exceptio�z /ras been submilied wif/� t/ie proposn//birl. Corilraclor s/:al! nol ca�unence a►ry work or deJiver n�:y rnaterial uizPi! he or she receives notrfrcaiion lh�t !he conlracP /tas been accepted, approved, and sigi:ed by 1/te City of De�rton. A!1 insurance policies proposed or obtai�zed in satisfactior: of flrese requiremerzts slta/l con:ply wil/t t/re jollowinggeneral specifications, andshall be ��zaintrti�ied in conrpliance wilh diesegenernl specificadions tltroug/roul llte ciur[rliat of t/ie Cattract, or loi:ger, if so note�f: • Cach policy shall be issued by a company autliorized to do business in the State of Texas witl� an A.M. Best Company rating of at least A or better. • Any deductibles or self-insured retentions shall be declared in ihe proposal. If requested by tl�e 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 insuraiice is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that tl�is insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than _ _ �.�.�_� � �..�.,. __.... u...,. Exhibit D File 6041 Page 96 of 139 Exhibit D CITY OF DENTON GICNERAL CONDITIONS FOR WATER PROJ�CT CONSTRUCTION one insured shall not operate to increase the insw�er's limit of liability. a Cn►rce!!rrlio»: Ciry requires 30 d�ry writie�r notice shoul�l rriry of i/re pulicies described o�r l/re cerlific�te Ge cance//ed or i�tnlerin//y c/ranged before t/re expirntio�r dMe. $ Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the tenn 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 shal] 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 ihe occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Sl�ould any required insurance lapse during the contract term, requests ror 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. ]f insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. • Concerning the insurance to be furnished by the Contractor, it is a condition precedent to acceptability that: (1) All policies must comply with the applicable requirements and special provisions of Attachment A. (2) Any policy evideitced by a certificate of insurance or submitted for review shall not be subject to limitations, conditions or restrictions deemed inconsistent with the intent of the insurance requirements set forth herein, and the Owner's decision regarding whether any policy contains such provisions, contrary to tl�is requirement, sl�all be fnal. • The Contractor agrees to the following special provisions: (1) The Contractor liereby waives subrogation rights for loss or damage to the extent same are covered by insurance. Insurers shall have no right of recovery or subrogation agaiilst il�e Owner, it being the intention that the insurance policies shall protect all parties to the Contract and be primary coverage for all losses covered by the policies. This waiver of subrogation shall be included, by endorsement or otherwise, as a provision of a11 policies required under Attachment A. (2) lnsurance compailies issuing the insurance policies and the Contractor shall l�ave no recourse against the Owner for pay►nent o1' any premiums or assessments for any deductibles, as all sucli premiums and deductibles are tlte �sole responsibility and risk of Contractor. (3) Approval, disapproval or failure to act by the Owner regarding any insurance supplied by the Contractor (or any Subcontractors) shall not relieve the Contractor of any responsibi]ity or liability for damage or accidents as set forth in the Conlract Documents. The bankruptcy, v�_�...�.,� . �� - ��. M.___ Exhibit D File 6041 Page 97 of 139 Exhibit D CITY Ol+ DENTON G�NEI2AL CONDITIONS FOR WAT�R PROJECT CONSTRUCTION insolvency or denial of liabil ity of or by the Contractor's insurance company shall likewise not exonerate or relieve the Contractor from liability. (4) The Owner reserves the right to review the insurance requirements of this Attachment A during the effective period of this Contract and to modify insurance coverage's and their limits when deemed necessary and prudent by the Owner's Risk Management Division, based upon economic conditions, the recommendation of professional insurance advisors, clianges in statutory law, courl decisions or other relevant factors. The Contractor agrees to make any reasonable request for deletion, revision or modification of particular policy ierms, conditioiis, iimitations or exciusions (excepi w}�ere policy pro�isions are established by law or regulation binding upon eitl�er party to iliis Contract or upon the underwriter of any such policy provisions). Upon request by the Owner, the Contractor shall exercise reasonable efforis to accomplish such changes in policy coverage's and shall pay the cost thereof. (5) No special payments shall be made for any insurance policies that the Contractor and Subcontractors are reyuired to carry; all are included in the stated Contract value. SPECIFIC ADDITIONAL INSURANCE REQUIREM�NTS: A!/ io:surnrxce policies propnsed ar oGtai�:ed ior satisfaclior: of lhis Contract s/ra!! arlr�it�crrially canply wit/r !/re following inarke�l specificalions, r�nd sl:a!/ be nrai��triined in co�rtpliance wit/: t/iese addilio�:al specifrcatio�ts llrroughoul t/re duration of t/te Contract, or /onger, if so rToted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than �I,[��t�,f�i�li,f�� shall be provided and maintained by the Contractor. The policy sl�all be written on an occurrence basis either iii 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 forn� property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is iiot required. Ifthe Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting rrom explosion, collapse or underground (XCU) exposures. • Broad form contracival liability (preferably by endorsement) covering this contract, persona] injury liaUility and broad form property damage liability. Exhibit D �,v�� _ �n� ^' File 6041 Page 98 of 139 Cxhibit D CITY OF DENTON GEN�RAL CONDITIONS FOIt WATER PROJECT CONSTRUCTION [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insw�ance with Combined Single Limits (CSL) of not less than �5{1+�,�1C�[l 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 ofthe operation, maintenance and use of all automobiles and mobile equipment used in conjunction ��ith th is contract. Saiis;aciio�i oi tiie above �•cquireri�cj�t si�alt be in i�;e form of a�;alicy endorser�er.t 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 requiremenis for issuance of such insurance, has Cmployer's Liability limits of at least $100,000 for each accident, $100,000 per eacl� employee, and a$500,000 policy ]imit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive a11 rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed ror the City by theNamed Insured. Por building or construction projects, the Contractor sllall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 1] 0.1 ] 0 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 ihe City as insured for property damage and bodily injury which may arise in the prosecution of tl�e work or Contractor's operations under this contract. Coverage sllall be on an "occurrence" basis and the policy shal) be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least ��f�+D,�}[l�.{��l combined bodily injury and property damage per occurrence with a��(�()��,(�[d�1.��} aggregate. [] Fire Damage Legal Liability Iusurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than _ each occurrence are required. [ ] Professional Liability Insura�ice Professional liability insurance with limits not less than �l C��iC� (�{}i).�1{i per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. �— � .�.....m.me.._....__�. ��.�.�.._�._ __�.. �._ Exhibit D File 6041 Page 99 of 139 �xhibit D CITY OF llENTON G�NERAL CONDITIONS F012 WAT�R PROJ�CT CONSTRUCTION [X] Buildcrs' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of tl�e completed value shall be provided. Such policy sl�all include as "Named Insured" the Ciry of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provid�s coverage for :he tlzeft or disappearance of cash or checks, robbery inside/o�tside t1�e premises, burglary orthe premises, and employee fidelity. The employee fdelity portion of this covera�e should be written on a"blanket" basis to cover all employees, including new hires. This type insurance should be required if the coiltractor has access to City funds. Limits of not less tl�an $ avvvv e____ _�u each occurrence are required. [ ] Environmental Liability Insurancc Environmencal liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger's Liability. Said coverage may be provided by a Rigger's Liability endorsement on the existing CGL coverage; ihrough and Installation Floater covering rigging contractors; or through ISO form TH 00 91 12 11, Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by tl�e CGL coverage [ ] Additional Insurance Other insurance may be required on an individual basis for extra liazardous contracts and specific service agreements. lf sucl� additional insurance is required for a specific contract, that requirement wi11 be described in the "Specific Conditions" ofthe contract specifications. � [ ] Umbrella Liability Insurance Depending on the size of the project, tl�e City may require the Contractor to obtain, pay for, and maintain umbrella liability insurance during the Contract term, insuring Contractor for an arriount of not less tlian $3,000,000 per occurrence combined limit for Bodily Inju�y (including death) and Property Damage, that follows form and applies in excess of the primary coverage required hereinabove. The Owner and Architect/Engineer shal) be named as additional insureds using the broadest form of endorsement available, with such status extended to include the extension of the completed operations coverage as described in this Attachment. The policy sllall provide "drop down" coverage where underlying primary insurance coverage limits are insufficient or exhausted. File 6041 Page 100 of 139 �xhibit D CITY OF DrNTON G�N�RAL CONDITiONS FOR WAT]CR PROJ�CT CONSTRUCTION [X] Workers' Compensation Coveyage for Building or Construction Projects for Governmental �ntities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate ofauthority to self-insure issued by the commission, or a covera�e agreement (TWCC- 81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or eniity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in �406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on ihe project. "Services" include, without limitation, providing, hauling, or delivering equipment or materia]s, or providing labor, transportation, or other service related to a project. "Services" does not include acfivities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classif cation codes and payroll amounts and iiling of any overage agreements, whicl� meets the statutory requirernents of Texas Labor Code, Section 401.011(44) for all employees of ihe Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certi�cate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shov�m on the contractor's current ceriifcate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage �with the governmental entity showing that coverage has been extended. E. The contractol- shall obtain fi•om each person providing servaces on a project, and provide to the governmental entity: m..� � ._.._ _ �__.—.—.u_.__ _—.__.. ��. „ Exhibit D File 6041 Page 101 of 139 � r � � � � � � � � • � 1. a certificate of coverage, prior to that pe�son beginning work on the project; so the governmental entity will have on file cerlif cates of coverage sliowing coverage for all persons providing services on t11e project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage sllowing extension of eoverage, if the coverage period shown on the current certifcate of coverage ends during the duration of the project. P. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereaf�er. G. The contractor shall notify the governmental entity in writing by certified xnail 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, io: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, pi-ior to the end of the coverage period, a new certificate of coverage showing exiension of coverage, if the coverage period shown on the current certificate of coverage ends duririg 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 covea•age, prior to the end of the coverage period, if the coverage period sliown on the current certificate of coverage ends during the duraiion of the project; ,.._.. �.� � �.._. .__ __.._ ��m��,...._ .��M.,�.,,,,.... Exhibit D File 6041 Page �02 of 139 �xhibit D CITY OF llENTON GENERAL CONDITIONS FOR WAT�R PROJ�CT CONSTRUCTION 5. retain all required certifcates of coverage on file for the duration of the project and for one year thereafrter; 6. notify the governmenta] entity in writing by certiiied mail or personal delivery, wiihin 10 days after the person knew or should have known, of any change that inaterially 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 ihey are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for ihe duration of the project, that the coverage will be based on proper reporting of classif cation codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to adrninistrafive penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days afl:er receipt of notice of breach from the governmental entity. �_..� .�. . ��_ .�. _ . �_ ..__ _ � � .� _ �. Exhibit D File 6041 Page 103 of 139 � X�11 �lt � � . ' . • . -� File 6041 Page 104 of 139 . � �, �; . . � � 1 � Contract Term 1t is tl�� i�ttc�gtit�ra of the City of Denton to award a contract for construction of the project as described in the drawings and specifications. Materials a��d services unde��taken pursuant to this RFP will be required to coinmence within fourteen (14) days of delivery of a Notice to Proceed. Tlie services shall be accomplished per ihe Scope of Work as identif ed in Section ITI, the Procurement Process and Procedures as outlined in Section II, and shall conform io tlie requirements contained in the Teclulical Specification in �xhibit 2, and Technical Drawings in Exhibit 3. The Contract shall commence upon ihe issuance of a Notice to Proceed by the City of Denton and shall automatically expire upon colnpletion of the work and acceptancP by the City of Dent.on, �'t•� �� a� Only firm, lump sum pricing with no escalation will be accepted for this projeci. P�Ai�.t� r�c�'��si��ta1s Price adjustments will not be allowed for this project unless a change in scope is approved that increases or decreases the amount of work required. Requests or proposals for changes in scope must be subrnitted in writing with documentation that provides justif cation for the change and supporting evidence that describes the basis for the cost change. Upon receipt of such request, the City of Denton reserves the right to either: accept the proposed change as competitive with the general market price at the tizne and issue appropriate authorizations or reject the ir��.t�c:a��:;s within 3S`� c�l��:�• ��°�� aftc;r ��ec.ei��1 c��` a properly submsit�cl �-c��. No ��uca�°� shall be t�ra�c;��t��n on a��rc��a�s�.c� �}��e z�ntil �7utlg�r��i�c��i ��y the City of Dent�� i�� t�� `�rri�� of a��x'c��se Order change and/or other documentation appropriate to amending the contract. The request can be sent by e-mail io: �a��r�li��sin�cit�rc��e��t�aa•ec�ir� Or rnail to: City of Denton Attn: Purchasing Manager PILE #6041 901T3 Texas Street Denton, Texas 76209 Or call: City of Denton Purchasing (940) 349-7100 The City of Denton reserves the right to accept, reject, or negotiate any proposed price changes. %�ia��tu�ii�c=� The quantities indicated on the drawings and in the Technical Specification are believed to be accurate but shall be considered only as estimates. The project requires complete and functional construetion of the substation perimeter fence in accordance with the dimerisions presented on the project documents. Differences between the quantities of material required and the �estimated quantities will not be �:c��ici��'�� is �t�r` 4� c1��r��,� �r� t�� 9•ice �'ta�' tla� ��-cajec�. �� ubnzai�i�$�� `�s-c��4�t1, t�-�e ��'�rJ�ra�� is �fi��; il��t l�� i3�� r��i��c�� t�ar� p��.�;i �i��awia��s �i�� a�c�.i�ic:�irt��s:� �r�d �as��i�rst�a��tl� �l��ir i��tc��i ar3d has �l��ckeri tl�� c��za��titic� �j��c� c.iin-�e;.s��it��s E�i�c� is ��e�-�i�� t1�aC tl��. 1�r-��1 i� �rt�eg�� t� �Y�:c�►��ai fca�- �tll conditions and quantities to complete the project as described in the plans and specification. File 6041 Page 105 of 139 Substitutions Substitutions are not permitted without the written appi•oval of the City of Denton Purchasing Department. Por subsiitutions prioi• to ihe proposa] deadline, this will be accomplished with a submittal to the Architect/Lngineer, and approval by the City representative, and issuance of a written addendum. Por substitutior�s after contract award, this will be accomplished with a submittal request to the Arcliitect/Engineer, and approval by the City represeniative, and issuance of a written contract change order. Product Chan�es Durin� Contract Term The supplier shall not chan�e specifications during the contract terin without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City oi Denton. Notice of a change shall be submitted in writing to the Project Manager with the RFP number in the subject line, for review. Products found to have changed specifications without notificaiion, and acceptance, will be rejected and must be removed from the site at the supplier's expense. Products that have been installed shall be replaced at the supplier's expense. �'��f�.��it l�i��#s The contracior agrees to indemnify and hold harmless the City from any claim involving patent right infringement or copyrights on goods supplied. Asbestos Free Matcrials The contractor shal] provide asbestos-free materials as represented by the Manufacturer's "Materials Safety Data Sheets" �i }lxts t� T��i:�- Tlo�u��e��f:� ��yd � cs�� 3�ste�ry ��i'd��•� ��p�r�tra��c:t�t I�x�iif ��s��re��ai � Any software, research, reports studies, data, photographs, negatives or other documents, drawings or materials prepared by contractor in the performance of its obligations under this contract shall be the exclusive property of the City and all such materials shall be delivered to the City by the contractor upon completion, termination, or cancellation of this contract. Contractor may, at its own expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than the perfarmance of contractor's obligations under this contract without the prior written consent of the City; provided, however, that contractor sha[1 be allowed to use non-confdential materials for writing samples in pursuit of the work. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. Add►n� New Products or S��-w��:�u� to the Contract after A,vard Pollowing the Contract award, ADDITIONAL services of the same general category that could have been encompassed in ihe award of this contract, and that are not already on the contract, inay be added. A formal written request may be sent to successful Gontractor to provide a proposal ,on the additional services and shall submit proposal to the City as instructed. �All submitted prices are� subject to negotiation in accordance with Texas Government Code 2254. The City may accept or reject the proposal, and may issue a separate RFQ %r the services requested, after rejecli�xg some, or all, of the proposal. The services covered under this provision shall conform to the staternent of work, specifcatioi�s, and requirements as outliaied in the request. Contract changes shall be made in accordance with Local Government Code 252.048. File 6041 Page 106 of 139 Samnles Respondents must make samples available in accordance with the specification and upon request by the City of Denton prior to award with no costs to the City. Venue This agreernent shall be governed by the law of ihe State of Texas and venue for its construction and enforcement shall lie in the courts of Denton County, Texas. �ilc��c.- �af �i��'c�fic;�tir��c The apparent silence of these specifications as to any detail or the apparent omission fioiri it of a detailed description concerning any point, shall be regarded as a meaning that the only best commercial practices are to prevail. All interpretations of these specifications shall be made on the basis of this statement. Pr�c.r��iii�� VV;��t� ��les In accordance with Texas Government Code 2258, the awarded contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis-Bacon Wage Determination at 1��,lh��,�v �ca�,�c�vfv�a�xd,''c�c�nt��c:isfc3�a��.��i��a and at the Wage Determinations website ��v�.�,r��,�c�v for Denton County, Texas (WD-2509). Notwithstanding any other provision of this Contract, the awarded contractor hereby represents and warrants that the contractor shall pay to each of it�; �:�3��1e��.e� a��x��c ��c�i 1�� l��t� ��l��t i� c~�,z�`�'��il�r known as the "Federal Minimum Wage" and ai�;� i�ac.�c�s� �+�- =zn��:��dr��cs�ts ttt��"ui:�a. �`t�.�=�l�c.%r-ri�arc, contractor shall produce proof of compliance with this �ax'c��:�ic�� k�}� c��i�ti°��1�aA- ta th� �i�y, .7"I�c C°ity sT��1� withhold payments due to contractor until contracic��° 1-s�s �c�aa��Sli�d �.'iil� tl��s �z'��vi:�it��. 1'ric�:- t� ��t�y payment being made for work satisfactorily completed and accepted, contractor shall submit wage rate affidavits with its billing documents affirming that all employees have been paid not less than the current "Federal Minimum Wage". Contracts and Iionds Successful awarded contractor will be required to sign original contract and submit a performance and payment bonds for 100 percent of the total proposal submitted before work is to commence. The contractor shall assume all costs in increasing the bond limits if change orders are formally approved. Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as amended. The City shall normally return the proposal bonds within ten (10) working days after the proposal due date, except for the three top ranked firms. The three iop ranked f rms will be retained by the City until the required contract and bonds have been executed, after which they shall be returned. File 6041 Page 107 of 139 '_ G I►1 I �: ::►_ _ \1 1 . . , DAVIS I3ACON COMPLI/��C�1; i�1+,�[JJ��I�:�S��'�v`l,`� The Contractor shall comply with the requirements of ihe Davis-Bacon Wage Act and t11e Wage Rate Requirements under Section 1606 of the Recovery and Reinvestment Act (the Act) and shall indemnify the City from liability for any failure to pay wages in compliance with the Act. The contractor shall ensure that all laborers and inecllanics employed in the performance of the project for wl�ich the assistance is provided, including those ernployed by subcontractors, ar�e paid wages at rates not ]ess than those prevailing on similar work in the ]ocality as determined by the Secretary of Labor in accordance Wlil] SU17CIla�iel' IV O�C�]3j�tL1' �I of title 40, Uniied States Code (co�nmot7ly re;erred io as tl�e `Davis- l3acon Act'). The bidder who is awarded the Contract shall pay the wage rate in effect as of ihe date the Contract is awarded. The Contractor shall cooperate with the City by providing information in tlie form and frequency requested by the City concerning the type of woi•k performed, the number of hours worked, and the hourly rates paid for the various types of work performed by all workers on the Project. The Contractor shall allow City stafi to conduct on-site wage interviews and shall post information concerning the Act as requested by the City. All contractors and subcontractors must comply with Davis-Bacon Wage Rates and the Wage Rate Requirements of Section 1606 of the Recovery and Reinvestment Act. . ,,.. -. - �=. - • . . -.' . -. . - . . -- . . , . . ,� , . , ., .� �. �. . '; I', /� / , � , , • ., ,: . . �� . � . �� : I : `, , I / '• Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor" shall inean "Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the following definitions. Recipient means the organization, individual, or other entity that receives an award frorn DOC and is financially accountable for the use oi any DOE iunds or property provided for the performance of the project, and is legally responsible for carrying out the terms and conditions of the award. Sub��ecipient means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations). Davis-Bacon Act (a) Definilion.—"Site of the work"— (1) Means=- (i) The primary site of tlie work. The pl�ysical place or places where tlle construction called for in the awai•d will remain when work on it is completed; and (ii) The secondary site of the work, if any. Any other site where a signif cant portion of the building or work is constructed, provided that such site is— (A) Located in the United States; and (B) Established specif cally for the performance of ihe award or project; File 6041 Page 108 of 139 (2) Except as provided in paragraph (3) of this defnition, includes any fabrication plants, mobile factories, baich plants, bori•ow pits, job headquarters, tool yards, etc., provided— (i) They are dedicated exclusively, or nearly so, to performance of the award or project; and (ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)(1)(i), or the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition; (3) Does not include perinanent home offices, branch plani establishrnents, fabrication plants, or tool yards of a Contractor or subcontractor whose locations and eontinuance in operaiion are determined wholly without regard to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, yards, etc., of a commercial or material supplier which are established by a supplier of materials for ihe project before opening of bids and not on the Project site, are not included in the "site of the work." Such permanent, previously established facilities are not a part of the "site of the work" even if ihe operations for a period of time may be dedicated exclusively or nearly so, to the performance of a award. (b) (1) All laborers and xnechanics employed or working upon the site of the work will be paid unconditionally and not less ofien than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona f de fringe benefits (or cash equivalents thereo fl due at tirne of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be effective from the first day on which work under the award was perforined at that site and shall be incorporated without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to the primary site of the work. (2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to ihe provisions of paragraph (e} of this article; also, regular contributions inade or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such period. (3) Such laborers and mechanics shall be paid not less ihan the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually pe'rformed, without regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate speci�ed for each classification for the time actually worked therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. (4) The wage deteranination (including any additional classifications and wage rates conforined under paragraph (c) of this article) and the Davis-Bacon poster (WH-1321) shall be posted at File 6041 Page 109 of 139 aIl ti�nes by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (c) (]) The Contracting Offcer shall require that any class of laborers or mechanics which is not listed in the wage deternninatio�i and which is to be employed under the award shall be classifed in conformance with the wage determination. The Contracting Offcer shall approve an additional classifcation and wage rate and fringe benefits therefore only when all the following criteria have been met: (i) The work to be performed by the classification requested is not perforrned by a classif cation in the wage determination. (ii) The classification is utilized in the area by the construction industry. (iii)The proposed wage rate, including any bona fde fringe benefits, bears a reasonable relationship to the wage rates contained in the wage deterinination. (2) If the Contractor and ihe laborers and mechanics to be employed in the classifieation (if lalown), or their representatives and the Contracting Officer agree on the classifcation and wage rate (including the amount d�signated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting Officer to the Administrator of the: Wage and Hour Division Employment Standards Administration U.S. Department of Labor Washington, DC 20210 The Administrator or an authorized representative will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the Coritracting Officer or will notify the Contracting Of�acer within the 30-day period that additional time is necessary. (3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or their representatives, and the Contracting Officer do not agree on the proposed classif cation and wage rate (including the arnount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advice the Contracting Officer or will notify the Contracting Officer within the 30-day period ihat additional time is necessary. (4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers perforining work in the�classi�ca�ion under this�awar�d froin the first day on which woi-k is performed in the classifacation. (d) Whenever the minirnum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the be�iefit as stated in the wage determination or shall pay another bona f de fringe benefit or an hourly cash equivalent thereof. File 6041 Page 110 of 139 (e) If tl�e Cox�tractor does not make payments to a trustee or other third person, the Contractor inay con;�ic��° as part of the k�,�.�w�s of an� laborer ��r• r�ac;�l�asaic� ��e ��t��s��iat �i� r:s��F cc�sf;� t�e��{�E-��y anti�:i��<�ted in pi-ovidin� l�c�r�a fide fringe ben��ts �c��icr {� }alai� ��r ��c��,x:s�l�� x�t°��idc�l, tl�� i�c Secretary of Labor has found, upon the �c�rittei7 r-c.cat.r��[ ��i" ti7c.. t_'c�rzt�'�utcsr, tl�a:t il�� li�:��1c standards of the Davis-Bacon Act have been x��ci. "�"i�� cr�:,i��'� t�f 1�,�1�c�� Y ��1�t�'� ��' Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. Rates of Wages The minimum wages to be paid laborers and mechanics under this award.involved in performance of wo��k �� t�� t°c��ect �ii�, �t� cl�t��-��ar��d %y i�7e Secretary of I�<ik�cat� t� be �sa��iii�� t�� 3�� co��-�.��4�nding cla��:� c��" la%c��-��-s anc� st�ecl�a��i�� r�lc�yc.�i on projects of ��l�ttt-��ter si��s�sl�� tla� ccaai:t�°act ��c�rk in the �ae�•tirac:�nt ��Raiitys ��c �aacluc�ed as an attac�u��t�� to this award. These wage rates are minimum rates and �� int:e�z��c3 �c� s-��-��ent the actual ��a�,� �-�t�:s tha� the Contractor may have to pay. Payrolls and Basic Records (a) �'�yr�a�ls and 1��c� rec�r�� w�l��ing thereto shall be maintained by the Contractor during the cc�t�rs� of the ��1� and p'-�:��rv�� for a period of 3 y�cars th�i-c��fit�;r �r��• �Ii l�i�c.�rers and mechanics working at the site of the work. Such records shall c:�r��ain il�� s��, a��`�'�� and last 4 digits of tl�e :��ia1 scc��-ily ��i��l�er c�f ��c�� sttc�� v��a-��r�, lais t��= 1��::�- ct�r��t �l��i�c�tic��'t, ��t�taa°�y r�t�� r.i` �vs��;.s �3;�� (i��c.�t�c�ir�� r�tu� c��` cr�i�tr-�%tri��a�� c,x• ��ts �tz�t3ci�atec� i:t�t� 1�� c�c �i�tr�� t��t��ts a�- ca�h u�Jt�iv;al��t� i��c�`�::t�f ca� �17� t}Y�� d�s��'il�i.t� i�� suc�i:i�a�1 �(�� (�� 3) r�f i�j� �a�i�-1�� l��t:), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the Seci-�taz°y of �.al�r�� 7�� 3�ati��c.�, �ra�c��r pa��;��=��1� (c�) c�1' tt�� article �ntitl��l ��ri�-B�c�� t, that the �{��s �f �tt�y ��bc�ar��{ t�r- t��i��ic inc�a:t��: t1�e ��a-ac�ta��, c�f any cc�;;t� �•c��a�a�l�ly a��tl�i��te�i in providing benefits under a plan or prograin described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records which show that the commitment to provide such bci�rc�-tt� is c��f��#c�.nl�i�., ii�at �l�e plan ar��x-ca��•air� i� financially res�ac��'s�l�z �.�r�d. tt��t the plan or p�.ra��r�� h�� l7�cr� �:��rrjus�i��t�d in wr�ti�� ic� i1�� laborers or t��l�z��ic�s �t��k��, and records which show the costs anticipated or the actual cost incurred in providing such benefits. +�'car�i�-��i:��x`;� c:��t��l��in�; ��r��a�i��; �r t�`t�in�� z�rtc��' a��a�'raw�d ��c��;�-��7s �1aa31 ��iY�i�in r�rrii�� a��c�� f�ti�u rc�;i�tt��lz��z t�t" �t��a•�r�i��:.��;�yi�a �a�'n��`��i��+ an� ccx�i��ati�� o�' i�•E�ia�s��. �r�c��,ra��rs, il�e z°��i�tt`�ii�tl c��" tl��: ��a��tic�.�; �j��i is'��i��sa a��c� tl�e: r�tica� ��c� ev��:. r�i�� t��sc��i��t� ir� il��.. applicable programs. (b) (1) The Cr�iir�ctr�s- shall submit ��cc:�ly for eael� ��c�k i��. �l�ic�li r�ny ��+��'� �ti�rc��°� is ��c�•��'��cl ��:t�}��r of all ��=��c�1J� to the Contrs�t.ti�� Officer. "I7��; 1��°s•��r1�� xl�i�aitte� �li�ll �� o�� :ct�r�Yt�l� ��z��3 completely all of the information required t�-� �� l��nta?z�� t1�1�� l�a�z�<��"�i�h {�� c�st" il�� a`ti�lc• This information may be submitted in any form desired. Optional I'orm WH-347 (I'ederal Stock Number 029-005-00014-1) is available for this purpose and may be purcliased froin the -- Superintendent of Docuinents U.S. Government Printing Office Washington, DC 20402 The Prime Contractor is responsible for the submission of copies of payrolls by all subcontractors. File 6041 Page 111 of 139 (2) �ach payroll submiited shall be accompanied by a"Statement of Compliance," signed by the Contractor or subcontractor or his or her aget�t who pays or supervises the payment of the persons employed under ihe award and shall certify — (i) That tl�e payroll for the payroll period contains the information required to be maintained under paragraph (a) of this article and that such informaiion is correct and complete; (ii) That each laborer or mechanic (including each helper, apprentice, and irainee) employed on the award during tlie payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly frorn the full wages earned, other than permissible deductions as set forth in the Re�ulations, 29 CFR Part 3; and (iii)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe bene�ts or cash equivaler�ts for the classification of work performed, as specified in the applicable wage determination incorporated into the award. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by subparagraph (b)(2) of this ar[icle. (4) The falsification of any of ihe certifications in this article may subject the Contractor or subcontractor to civil or eriminal prosecution under Section 1001 of Title 18 and Section 3729 of Title 31 of the United States Code. (c) The Contractor or subcontractor shall make the records required under paragraph (a) of this article available for inspection, copying, or transcription by the Contracting Officer or authorized representatives of the Contracting Officer or the Department of Labor. The Contractor or subcontractor shall permit the Contracting Officer or representatives of the Contracting Officer or the Department of Labor to interview employees during working hours on the job. If the Contractor or subcontractor fails to subrnit required records or to make thern available, the Contracting Officer may, after written notice to the Conti•actor, take such action as may be neeessary to eause the suspension of any further payment. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. Withholding of Funds The Contracting Officer shall, upon his or her own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the Contractor under this award or any other Federal award with the same Prime Contractor, or any other federally assisted award subject to Davis-Bacon prevailing wage requirements, which is held by the same Prime Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontracior the full amount of wages required by� the award. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the award, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. File 6041 Page 112 of 139 Apprcniices and Trainees (a) Apprentices. (1) An apprentice will be permitted to work at less than the predeiermined rate for the wox•k they perforined when they are employed— (i) Pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, �mployment and Training Administration, Office of Apprenticeship and Training, Employer, and Labor Services (OATELS) or with a State Apprenticeship Agency recognized by the OATELS; or (ii) In the f rst 90 days af prubationary em��loyment as an apprentice in sach an apprenticeship program, even though not individually registered in the program, if certif ed by the OATELS or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. (3) Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph (a)(1) of this article, shall be paid not less ihan the applicable wage determination for the classification of work actually perforined. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. (4) Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specif ed in the Contractor's or subconfiractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. (5) Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does noi specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (6) rn the event OATELS, br a State Apprenticeship Agency recognized by OATELS, withdraws approval of an apprenticeship program, tYie Contractor will no longer be permitted to u{ilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. File 6041 Page 113 of 139 (b) Trainees. (1) �xcept as provided in 29 CFR 5. ] 6, irainees will not be pcnnitted to work at less than the predetennined rate for the work perfornled unless ihey are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, �mployment and Training Administration, Off ce of Apprenticeship Training, Employer, and Labor Services (OATELS). The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by OATELS. (2) Evei:y irainee must be paid at not less than the rate specifed in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specif ed in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed in ihe wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate in the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the OATELS shall be paid not less than the applicable wage rate in the wage deterinination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wa�e rate in the wage determination for the work actually performed. (3) In the event OATELS withdraws approval oi` a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predeterrnined rate for the work performed until an acceptable program is approved. (4) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this article shall be in conformity with the equal employrnent opportunity requirements of Executive Order 11246, as amended and 29 CI'R Part 30. Compliance with Copeland Act Requirements The Contractor sliall comply with the requirements of 29 CFR Part 3, which are hereby incorporated by reference in this award. Subcontracts (Labor Standards) (a) Definition. "Construction, alteration or repair," as used in this article means all types oi' work • done by laborers and. mechanics employed by the construction Contractor or. construction subcontractor on a particular building or work at the site thereof, including without limitation— (1) Altering, remodeling, installation (if� appropriate) on the site of the work of items fabi•icated off-site; (2) I'ainting arid decorating; (3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or worlc; File 6041 Page 114 of 139 (4) Transportation of materials and supplies between the site of the work within the meaning of paragraphs (a)(1)(i) and (ii) of the "site of the work" as defined in the article entitled Davis Bacon Act of this award, and a facility which is dedicated to the construction of the building or work and is deemed part of the site of the work within the meaning of paragraph (2) of the "site of work" definition; and (5) Transportation of portions of the building or work between a secondary site where a significant portion of the building or work is consiructed, which is part of the "site of the work" def nition in paragraph (a) (l )(ii) of the Davis-Bacon Act article, and ihe physical place or places where the building or work will remain (paragraph (a) (1) (i) of the Davis Bacon Act article, in the "site of the work" definition). (b) The Contractor or subcontractor shall insert in any subcontracts for construction, aiterations and repairs within the United States tlie articles entitled— (1) Davis-Bacon Act; (2) Contract Work Hours and Safety Standards Act -- Overtime Compensation (if the article is included in this award); (3) Apprentices and Trainees; (4) Payrolls and Basic Records; (5) Compliance with Copeland Act Requiremenis; (6) Withholding of Funds; (7) Subcontracts (Labor Standards); (8) Contract Termination – Debarment; (9) Disputes Concerning Labor Standards; , (10) Compliance with Davis-Bacon and Rel�ited Act Regulations; and (11) Certification of Eligibility. (c) The Prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor performing construction within the United States with all the award articles cited in paragraph (b). (d) (1) Within 14 days after issuance of the award, the Contractor shall deliver to the Contracting C�f�c��• a compl�t�c� Standard Form (SP) 1413, ��ic�:��en� �t��i ,,�c�know�e��ment, for each ��1�cc��tract for c:��a��truction within the United St��ic;5, �nclu��r��, t�i� subc.c��tractor's signed and dated acknowledgment that the articles set forih in paragraph (b) of this article have been included in the subcontract. Within 14 days after the award of any subsequently awarded subcontract the Contracior shall deliver to the Contracting Officer an updated completed SF 1413 for such additional subcontract. (e) The Contractor shall insert the substance of this article, including this paragraph (e) in all subcontracts for cpnstruction within the United States. , , Contract Termination -- Debarment A breaeh of the award articles entitled Davis-Bacon Act, Contract Work Hours and Safety Standards Act -- Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with Copeland Act Requirements, Subcontracts (Labor Standards), Compliance with Davis-Bacon and l��l��i�.d Act ��.c.��lations, or Certification c�� 1�:1igi��it:v may be grounds fcar termination of the whole ��-��1 or in �a�r-t for the Recovery Act cc�v�:�-c.d ��^��r�� only, and, for del��r��ent as a Contractor and subcontractor as provided in 29 CFR S.12. File 6041 Page 115 of 139 Compliance with Davis-Bacon and Related Act Regulations All ru]ings and interpretations of the Davis-Bacon and Related Acts contained in 29 CPR Parts ], 3, and 5 are hereby incorporated by reference in this award. llisputes Conccrning Labor Standards The United States Depariment of Labor has set forth in 29 CFR Parts 5, 6, and 7 procedures for resolving disputes concei•ning labor standards requirements. Such disputes shall be resolved in accordance with those procedures and not ihe Disputes and Appeals as defined in 10 CFR 600.22. Disputes within the meaning of this article include disputes between the Contractor (and any of its subcorltractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. Certification of �ligibility (a) By entering into this award, the Contractor certiiies that neither it (nor lie or she) nor any person or firm who has an interest in the Contractor's f rm is a person or firm ineligible to be awarded Government awards by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (b) No part of this award shall be subcontracted to any person or firm ineligible for award of a Government award by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (c) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Approval of Wage Rates All straight time wage rates, and overtime rates based thereon, for ]aborers and mechanics engaged in work under this award must be submitted for approval in writing by ihe head af the contracting activity or a representative expressly designated for this purpose, if the straight time wages exceed the rates for corresponding classifications contained in the applicable Davis-Bacon Act minimum wage determination included in the award. Any amount paid by the Contractor to any laborer or mechanic in excess of ihe agency approved �vage rate shall be at tlie expense of ihe Contractor and shall not be reimbursed by the Government. If the Government refuses to authorize the use of the overtiine, the Contractor is not released from ihe obligation to pay employees at the required overtirne rates for any overtime actually worked. BUY AM�RICAN ACT CO��'LIA�+IC`� 1[�I��illl��'NT� The Conti•acior acknowledges to and for the benefit of the City of Denton that it uliderstands the goods and services under this Agreement are being funded with monies made available by the American Reinvestment and Recovery Acf of 2009 (1Zecovery Act) (or are being,made available for a project being funded with monies made available by the Recovery Act) and section 1605 of such law coniains provisions commonly known as "Buy American." The Buy Ainerican requirement prohibiis the use of Recovery Act i'unds for a project foi• the construction, alteration, maintenance, or i•epair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States ("Buy American requireinent") including iron, steel, and manufactured goods provided by the Contractor pursuant to this Agreement. The Contractor Ilereby represents and warraiits to and for the benef t of the Department of Cnergy (DOE) grantee that (a) the Contractor has reviewed and understands the Buy American requireinent, (b) all of the iron, steel, and manufactured File 6041 Page 116 of 139 goods used in U7e p�-oject will be and/or have been produced in the Uni.ted States in a manner that complies with the Buy American requirement, unless an exception to the requirement is approved, and (c) the Contractor will provide any further verified information, certif cation or assurance of compliance with this pa��t�,fi$°��pl�, tr.�� irafc�a��a[i��r� ��c.c�c�;�:��a'�� to s��rt�rt an e�� }�tuon �� 1��e Buy .�'�r��:,r�.i�:�ia� requirement, as may be �-�:c-��re�tc�i 1a�� t�i� ]��i�a ��`�x�te� or L�f_)1�.. Not:��ii��tanc�iai�; any c�t��:�• ��r�a�rision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the DO� grantee to recover as damages against the Contractor any loss, expense or cost (including without li�nitation atton�ey's fees) incurred by the DOE grantee resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part from DOE). Neither this paragraph (nor any provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the DOE grantee. . - . . , , . -. - •- . - . . . ., . . , _ . `- - � - • r . !1 ' ` � • , • � . * . � � � •' ! � � � •' .1 � ' • ' • � • ', � ., � � �� . ��+ THIS A��^'�_RD TERM IS �.�'P7.1CA BLE � C� A NY RECO �'�'�'r� Y ACT I{`UlV,�3t� FDR G'�t��5'TR �1�'1 �'�J'IY r�LT�`I�'�� 1't?1'►i' ,��.��' I1�'�,�I�G�` !��_.er'1�P�I, lt�' f31'' �6 i"�Ti��.1"G' 13 �1I�.1�I1"� .�! `� (�.�'i _. PVBLrc r�r��rc�aND rx� ro��r_ PRn.rEcr VALr..�� rs ESTr�►rAr��4x� LEss rtraN $744�.000. ��r� � r��z� r��e�r��.�� a�ra.r�:y� �� .�� .�r��.�v�.��r�r� ��°��.��. _ a. Defnitions. As used in this award term and condition-- (1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been— (i) Processed into a specifc form and shape; or (ii) Combined with other raw material to crc:ate a material that has different properties than the properties of the individual raw materials. (2) P��hli� �auil.diz�� a��c� public work means a la�ahl�c buildi�� of, and a�aut��ic work ��, a gc��r�r��s�i�l ua�tiiy (the United States; the Di�;i.t�ict of Col�ata�l�ia; commonw�:�tiths, territ��-i�s, and minor outlying islands of the United States; State and local governments; and multi- State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alieration, maintenance, or repair of such buildings and works. (3) Steel means •an alloy that includes at� least 50 percent iron, between �.02 and 2 percent carbons, and may include other elements. b. Domestic preference. (I) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111--5), by requiring that all iron, steel, and manufactured goods used in ihe project are produced in the United States except as provided in paragrapll (b)(3) and (b)(4) of this section and condition. File 6041 Page 117 of 139 (2) This requirement does not apply to the material lisled by the Pederal Governnneni as follows: None [Award official to list applicable accepted materials or indicate "none"] (3) The award ofiicial rnay add otl�er iron, steel, ar�d/or manufactured goods to the list in paragraph (b)(2) of this section and condition if the Federal Government determines that-- (i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel; or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase ihe cost of the overall project by more than 25 percent; (ii) 1'he iron, steel, and/or manufactured good is not produced, or manufactured in the United Staies in sufficient and reasonably available quantities and of a satisfactory quality; or (iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. c. Request for determination ofinapplicability of Section 1605 of the Recovery Act. (1) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance with paragraph (b) (3) of this section shall include adequate information for Pederal Government valuation of the request, including— (A) A description of the foreign and domestic iron, steel, and/or manufactured goods; (B) Unit of ineasure; (C) Quantiiy; (D) Cost; (�) Time of delivery or availability; (F) Location of the project; (G) Name and address of the proposed supplier; and (H)A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b) (3) of this section. (i) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section. (ii) The cost of iron, steel, and/or manufactui-ed goods material shall include all delivery costs to the construction site and any applicable duty. (iii)Any recipient request for a determination subrnitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such deterniination and � � could not have requested the determination liefore the funds were oliligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination. (2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, rnaintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award off cial will amend the award to allow use of tlie foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is non- availability or public interest, the amended award shall reflect adjustment of the award File 6041 Page 118 of 139 List amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated with acquii-ing or using the foreign iron, steel, and/or relevant manufactured goods. VVhen the basis for the exception is ihe unreasorlable cost of the dornestic iron, steel, or manufactured goods, the award off cial shall adjust tlle award amount or redistribute Uudgeted funds by at least tl�e differential established in 2 CFR 176.110(a). (3) Unless the Pederal Government determines that an excepiion to section 1605 of the Recovery Act applies, use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605 of the American Recovery and Reinvestment Act. d. Data. To permit evaluation of requests under paragraph (b) of this section based on unre�sonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Ttems Cost Comparison �_.e. � _.� �� .� �. _ _.� ___ Cost Description Unit of Measure Ouantity (dollars)X I(ena 1 ° Foreign steel, iron, or manufactured ��ur3 �. Domestic ste�l, irc�r�., or manufactured ;„�t�rl ....� � /le�� 2,� Fo�•�ir�� I�.�.�� ron � or manut'actured ��tat�d �� ... Domestie steel, iron, or manufactured �crc�ci name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting inforrnation. *Include all delivery costs to the construction site. File 6041 Page 119 of 139 �X�1 it � • . • :� . • ! File 6041 Page 120 of 139 � `� � :• � • � �� • � ! • KNOW ALL MEN BY THESE PRESENTS: That Pittsb�t�•� '��Ic �S'r ��'��+��° C`c��r�i�,�f,. Inc.; whn�e address is Qne Wt�t�;rtt�nk Plar.� 1 iP.nrlPrc�,n KY 42420 hereinafter called Principal : �_., en�_ ....-��.� . � and C.�� F��k�li� �ttr��_��m��l�y , a corporation organized and existing under the laws of the State of �n1i�_,,,�,��rr,r;e�r, , and fully authorized to transact business ►n the State of Texas, as Surety, are held and fir•mly 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 THREC-HUNDRED AND FORTY FIVE THOUSAND, SIX HUNDRED AND FIFTY EIGHT DOLLAS AND TWENTY FIVE CENTS DOLLARS ($3��,t��.25), 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, adrrrinistrators, successors, and assigns, jointly and severally, firmly by ihese presents. The amount of this Bond shall automatically be increased by any Change Order or Supplemental Agreement, however, increases ta this bond and the Contract price sl�all 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 '�educes 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 # 6041, with the City of Denton, the Owner, dated tl�e '�s3' c��sf �3f"ht�M'ii �.I�. "�(�16, for the Construction Services stated within contract #6041 - McKenna Park Tank Roof Replacement. NOW, THEREFORE, if the Principal shall well, truly and faithfully perforin and fulfill all of the undertakings, covenants, terms, conditions and agreements of said Contract in aceordance with the Plans, Specifications and Contract Documents during the original term thereof and any extension thereof which may be �ranted by the Owneo•, 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 perforrn and fulfill all the undertakings, covenants, terms, conditions and agreeinents of any and all dufy authorized modifications of said Contract that may hereafter be made, notice of which rnodifcations to the Surety being hereby waived; and, if the Principal shall repair and/or �•eplace all defects due to faulty materials and workrrranship that appear within a period of one (]) years from the daie of final cotrrpletion and final acceptanee of the Work by the Owner; and, if the Principal shall fully indemnify and save harmless the Owner from all costs and damages whicl� Owner orray suffer by reason of failure to so perform hereiri 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 6041 Page 121 of 139 PROVIDED 1'UR"I`}-1GR, that if any legal action be filed upon this Bond, exclusive venue shall lie in Denton County, Scate of Texas. AND PROVIDE,D PURTH[:R, that the said Surety, for value reccived, hereby stipulates and agrees thai no change, extcnsion of iime, alteration or addilion to the terms orthe Contracl, or to the Work to be performed thereunder, or to the Plans, Specifications, Urawin�;s, etc., accompanying the same, shall in anywise affcct ics obligation on this Bond, and it does hereby �vaive notice of any such change, exfei7sion of time, alteration or addition to the terms of ihe Contract, or to the Work to be perfori7ied thereunder, or to the Plans, Specifcations, Drawiiigs, ctc. This Bond is �;iven pursuani to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes orthe Stale of'Texas. The undersi�ned and designated agent is herehy designaced by the Surety herein as the Resideni Agent in Denton County to wl�om any requisite notices may be delivered and on whom service of process may be had ii7 matters arising out of such suretysllip, as provided by Article 7.19-1 of the ]nstirance Code, Vernon's Annofated Civil StaYutes of tlie State of Texas. 1N W1'1'NESS WHEREOF, this instrument is executed in 3 copies, each one of which shall be deemed an original, tliis the 5th day of A�ril , 2016 ATTES7': PRINCIPAL � � a -., Pittsburg Tank & Tower Com��y, Inc. �,�:.c..��i��r� ��?.�� .�_ -,a-�--=� �v: �� e.�. �m_— _ BY - � ,,�� 7y � ..�. S RE�'S�';��.��.�5r.q, Ji ATTGST: BY: _ �F_ ,a .�_._�_ SURETY BY: • � . 1/ The Resident Agent of the Surety in Det7ton County, Texas for delivery of notice �s��1��;:��,��=.iix� ��r�s��Kc:�� is: NAME: �Y,• :�w •- ��r- " sTR�r.-,�� aDnREss: �l��...�,�ar�c�_S��v��:��.�, ��8 �A � �� .�_�� L�.u��,-Mo 63� (NOT�: Date ofPerformance I3ond must be date of Concracc. If Resident Agent is not a co,•poracion, givc a �3erson's name.) File 6041 Page 122 of 139 �� ;r � • � � Bond #2161104 � : + . -� � .. • • • '-• � * • •. � ��, � ; + -� + + - � - � ' • -� � � � r � r� � • r�- ++ r, � . � . � � . - � , � • r • . * * . , - • ' - - - . ' . -� ! . w � , r• � �� • �• . • , • * + r- � .►� �*; • � '� + r �,a - - -� � - �- � � �� , r;�� r � � � r �• . . � �� . . .i -. � .- �. � �- � . - . - .. . + • .- ,�- -� • � • � � .� , . � , � . � . � � --� � • :;.� r, .. -� � - � �I• � r� - � � .• r . � • r; �' -� r• .�+ -�. • � , � � • � � �. ' � , ' � • ��.• 1�: ._ � - • . . - • �:- • •� - - ,, , ._ . .� . . � . • _ �;. _ �, !� : • �' •: • • ' � , , a � s -� � s - " s, � , � �-, .� � . ,�, - � �- • - � �, -r • + •,, -� � .��. • ►�• "'-� � . � . . �,. � �-' � � � � • . r. � , ,� - � � • • • . � � � � �'! ,.• �� r� � � •; �� w-� a ,� � , �, .. r � -� •w' � , �i � r �,,- .�- � • , �� , • • - - �• + - -� • ! • ,, -� • �� ;,,' • . �- • r • � �- .. • ! � i ' ' .,,, • �• -� • :� • �• '• � '� 1 �:� � �� .! .:i1 1'�... '1: ':��. R�.� ' '�: � . � '. � ' � ' ' • ..��.. • * .. • '. . # 1 I f • " �. ! ! •�'�. L � ' 1 ��'. � � - ;� T � .., ' � �� ' •�. .:' � .. I. � .: � � .. � " r � 1 � r. '. � �.... • . � ��.: �� - - - �� •:�'�.. • i� 1��. 1 ��' '.�.�. ��.., • ....:• ' VI . . :�.:. +' - ' ...l� • - .r:'�:' . 1,�1 • r�:�# � '..� . :. �... -... � • : �'� ! '��, :• • E • � ' i �� ' 1�. �� '�. # ' �, '.; � � - � . � - � �. � �: �.. File 6041 Page 123 of 139 Tl�is Bond is given pursuant to the provisians af Cliapter 2253 of the Texas Governmei�t Code, as ames�ded, and any otlier applicable statutes of tl�e State of Texas. Tlte undersi��ted and designated agent is h�i°�.ifi�+ c��ss�;r�L�t�� rY tSti�, �ilre,ty l�c��in ��s t�tc; ��ici�l�� Agen4 in Denton County ta whom any requisite noti�e� �r��y �� `�`�`� ��4� O11 ��'��'r'ry� �e'�va�� t''! g��c°�� may be had in matters arising out af such surety, a�g p�-a��i�l�ci ta�fi ,�1R�lic;l� 1•19p! c�f` t��. jr��trr=`��s=� �+��`, Vernor�'s Annotated Civil Statutes of tlie State of Texas. IN WITNCSS WHERGOP, tl,is instrument is executed in 3 copies, each one of whicl� shall be deemed an original, this tl�e 5th day of Aprll , 2016• ATTEST: I'' -' '•,' ,.n_ - � P��ts�Ur� _ia.�k � TQVveC ��a�'rlp��►� fr�t�. � _ __ � __ � � � BY . _ � � _ ; . _ � ,�' �,'`� � � �.,- i��`��°F°T',� t��1r ��,�_ a =- BY. m�... � _.;; �� -'�`,� � _ :..._ � �}'"T�� 1,�`N`�" � ATTEST: BY: . — � . . �.� �� ._n.- The Resident Agent of tl�e Surety in Dentoi7 Caunty,'C process is: � ! - • '- �- SURETY.. :' �� for delivery af natice ai,d service of the ent � � . ��. . _ � . 1i � • • 1 (NOTE: Dale of Payi��en! Bond musl be dale of Cnnlract. !f Resrdenl Agenl is nal. a corpor^alion, grve a person's name.) File 8041 Page 124 of 139 State of Texas C�aim Notice Endorsement To be attached to and form a part of Bond No. 2161104, In accordance with Section 2253.021(f) of the Texas Government Code and Section 53.202(6) of the Texas Property Code any notice of claim to the named surety under this bond(s) should be sent to: Old Republic Surety Company P.O. Box 1635 Milwaukee, Wisconsin 53201 (414) 797-2640 ;�„ � � L � �� ; � � � �I SURETY COMPANY � � � � - -- -- - - - _ ��„�„r�, �.��,��,..��„ - POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That OLD REPUBLIC SURETY COMPANY, a Wisconsin stock insurance corporation, does make, constitute and appoint: DENNIS W. LUTZ, DENNIS D. FLATNESS, TAFFRA S. HOLMAN, SUSAN M. STEFANSKI, BARBARA J. LEMM, OF ST. LOUIS, MO its true and lawful Attomey(s)-in-Fact, with full powev and authority, not exceeding $50,000,000, for and on behalf of the company as surety, to execute and deliver aa7�d tiiTitt 41z€; �i�l sai"ilt� e��e��r�t�� 19�e��ts� �iM`� ;��1 i� r��sairw�i�, ��astd�, e�s�sl��,ak�ir��,�. r�:�t�;r�ia�s�c�c� rtr sttlrer �+a°�t��:t� s��ii�ti�a�� mt lla� ��stur� lft�i�etsi: (��4Jm�;a• �s��rm ��a�b qasmrm��,, l�tssrL i3�.}�;�,,�[�sk�,�� $��Grt€�wa d��°Ils��;�° �t•k�s �ast� �� l��ar�t€�s, ��t.tG��dg;s ,xiiss�,d��tiv !`��st�f� �sak�iriqa4�;�°, �3i`s�t�RdiElgat�';�a� yk;t�j�:� ��t�R 4�f�� s�.aaai�lt� �;�tr�irl;. �€;1f iir�,�w�,sc�«:�� v��tis��4 ��i�l�,�a��;�r�eor��a ��,as�� aaa��;a��n��:wa�iy; tl�a��r��•�aB �atl'�t��,.9is�� Ca�.w r�igsE��a��9 r43a3��i�,� lqai�r��, v�;r�l� ��r�i�a��r�� E��t�� 47��ur�tr,s� s�n�..��. o��d��u��i�4t��,�� P�,rqr��s �ra t�ltisy�4� I��u��; �,¢;��;, as follows: ALL WRITTEN INSTRUMENTS IN AN AMOUNT NOT TO EXCEED AN AGGREGATE OF TEN MILLION DOLLARS ($10,000,000) FOR ANY SINGLE OHLIGATION, REGARDLESS OF THE NUMBER OF INSTRUMENTS ISSUED FOR THE OBLIGATION. and to bind OLD REPUBLIC SURETY COMPANY thereby, and all of the acts of said Attorneys-in-Fact, pursuant to these presents, are ratified and confinned. "i`��r>t� r��s �itgt�rusp t�; �gut �.��i[� �,�i�l�:��. ��irrr�u�+-�in :a�l��;�I ��c��,i�'riirx� ��i g� ik�ri4�i-tC�lu�a°41 "1"k��s a��a}xsiwtLi��'st1 �s te�s�t�� t�s��it^�°a�td b)� stulfieis�[y cat tl��; %s�arci c�Cc��r�;ed�i�s �t ��:ci�3 ��c;�,t�r�g la�i�i tarz %�t�'�ta�e�y i€i, !{i�?. "I'"tsi� C'sxw€,i� �si'r�itsas�i�� iw si�ix�:sf ;�nti �c��1�c� k�y ��uatra�il� iaX��lrs` xs�cl by t.it� attSl7tar`i�y rif tia� ��ail�>ueir7� rek€ilisli�}aati adopted by the board of directors of the OLD REPUBLIC SURETY COMPANY on February 18, 1982. RESOLVED that, the president, any vice-president, or assistant vice president, in conjunction with the secretary or any assistant secretary, may appoint ateomeys-in-fact or agents with authority as defined or limited in the instrument evidencing the appointment in each case, for and on behalf of the company to execute and deliver and affix the seal of the company to bonds, undertakings, recognizances, and suretyship obligations of all kinds; and said officers may remove any such attomey-in-fact or agenY and revoke any Power of Attomey peeviously granted to such person. RESOLVED FURTHER, that any bond, undertaking, recognizance, or suretyship obligation shall be valid and binding upon the Company (i) when signed by the president, any vice president or assistant vice president, and attested and sealed (if a seal be required) by any secretary or assistant secretary; or (ii) when signed by the president, any vice president or assistant vice president, secretary or assistant secretary, and countersigned and sealed (if a seal be eequired) by a duly authorized attomey-in-fact or agent; or (iii) when duly executed and sealed (if a seal be required) by one or more attomeys-in-fact or agents pursuant to and within the limits of the authority evidenced by the Power of Attomey issued by the company to such person or persons. RESOLVED FURTHER, that the signature of any authorized officer and the seal of the company may be affixed by facsimile to any Power of Attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the company; and such signature and seal when so used shall have the same force and effect as though manually affixed. IN WITNESS WHEREOF, OLD REPUBLIC SURETY COMPANY has caused these presents to be signed by its proper officer, and its corporate seal to be affixed this __ _.._ 30TH day of _ APRIL, 2015, ,�� r ' � �� , ,�,�� - ,.{� f ;�,ri�,l 1U i��. $2CI�IdR� STATE OF WISCONSIN, COUNTY OF WAUKESHA-SS OLD REPUBLIC SURETY COMPANY � � �� President - �� On this 30TH day of APRIL, 2015 , personally came before me, � �_,, Alan Pavlic _ and Phvlhc M:f�hna�n to me known to be the individuals and officers of the OLD REPUBLIC SURETY COMPANY who executed the above ,�_.� ��_.� e� W. �,_ �.._.�� ..��.�..��_.........��_4 instrutnent, and they each acknowiedged the execution of the same, and being by me duly sworn, did severally depose and say; that they are the said officers of the corporation aforesaid, and that the seal affixed to the above instrument is the seal of the corporation, and that said corporate seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority of the board of directors of said corporation. t� �!i. �, .�,�-, • ,, �.,=��skd�j�,`.�k .� .� � �.., ..� —.,�_ _.�..,�, � � .....�a 11 ,� � � Notary Pubqc °� ��'� �� My commission expires: 9/28/20l 8__ CERTIFICATE (Explratlon of notary commisafon does not invalidate thls instrument) I, the undersigned, assistant secretary ofthe OLD REPUBLIC SURETY COMPANY, a Wisconsin corporation, CERTIFY that the foregoing and attached Power of Attomey remains in full force and has not been revoked; and furthermore, that the Resolutions of ehe board of directors set forth in the Power of Attorney, are now in force. 40-0581 ��"��„ Signed and sealed at the City of Brookfield, WI this 5�h day of ApY'il 2� 16 w,� ��rs��"��a . . .� �� . �� ' �� ' � �w�� ,s .. . �� m.�;r�� .. �"� _. .,,,.: . � m � �. �t� � ns.�swni :�u��i� �•"`� .,�4 USI MIDWEST INC "� �'M' F � ;�: _ PITTTAN-06 LBUTLER DATE (MMIDDIYYYY) CERTIFICATE OF LIABILITY INSURANCE 3129/2016 ne.._ .�._ _......�....... .� �� . THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). • PRODUCER Var� fi��t�r lnsurance Group 2Oag Fcedtrrica Street Owensboro, KY 42301 INSURED Pittsburg Tank & Tower Co Inc. PO Box 913 Henderson, KY 42420 (270) 685-5581 Ol 685-3342 INSURER(S) AFFORDING COVERAGE J NAIC # .....___--- .::------- . ._...... . __ ,.,. iNsuReRa:Zurich American Insurance ��sr��ar�y �16535 _ __ _ . ------ _ . . .. , iNsuaeRe:Westchester Fire Insurance Company �10030 _....._.. ... ._ .____.._ ..._.... � ........._ iNsuReR c: Travelers Property Casualty Company of America p25674 --- – . __...... -.-- ...----- f �n,suReao:Underwriters at Lloyd's London (KY) �32727 INSURER E ;. INSURER F : COVERAGES C��T�F[�ATE NUMBER: REVISION NUMBER: _ mw.M�� ......... ..........�.�. �. ...._ � � .�»» W. �...,.._.�.. .��.., � __ ______..... � . ._._..�._..._� m �.._..� 7HIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FdR THE POLICY PERIOD INDICATED. NOTIMTHSTANDING ANY REQUIREMENT, TERM OR CONDITION (7F ANY CONTRACT (?R OTHEFt DOCUMENT \MTH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUEd OR MAY PERTAIN, 7HE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS dF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. € _.._-- .... _. _.._ --.._ --......_.. i I7ilS€��--....-- ...._...... .__ ......._.AuuL 4i,k�ifd ...... ._ ......_..._ ...._. _�.._GMM7C�a 5"ti'6X y(�� U�Y YY] &_ LIMITS �� TYPE OF INSURANCE wcn yyy�y POLICY NUMBER ....,� . . .. ....._..,, . ...,. . _„ ... A'�., COMMERCIAL GENERAL LIABIUTY ( EACH 6CCURRENCE $ 'I,OOO,OOO — ° �A�I,vG�'i'O �ttNi��— -- - _.__._. _ I CIAIAAS-MADE � X� OCCUR X X�a'L00191740-00 03/31/2016 03/31/2017 � pRFMICFG (FanrrurrenrA� $ 300�OOQ � r MED EXP (Anv one o�rsan} $ � 0,000 __ ; r , —. .. � . _ � . � PERSONAL &�,DV INJURY $ 'I OOO OOQ ........ ._......... ......__. . _ ,,,. . . , . ... GEN'LAGGREGATELIMIiAPPLfESPER: ('�ENERALAGGREGATE $ 2000,OOQ � _ � � e.,. M.M.� .. .� _ . _ I .�PC7LICY � PFtil � LOC � _ � AGG � 2,00O,OOQ -- �� PRODUCTS COMPtOP _ _ t7Tl V� �� AUTOMOBILE LIABILITY C;�.N�dShVEU �[ht�LF LI�1@T � � OOO OOO A � X., ,_fE_i s�[ridentl ..... ._._._._._ _. .---- ---- ......' ____ � ANVAUTo X X BAP0191742-00 03/31/2016 03131/2017 6o�ILYINJURv(Perpersony $ _ a��. own��a � � scw�ou�Ea f . .. —._ _ ._._ _._ . _._._._ AU7b5 j AU70S BODILY INJURY (Per accident} $ - --- . _...__. _..... ° N6N-0WNED �'F��F'a R�Y'�At�AAi(sk�� $ HIREDAUTOS ! AUT65 {�ei ��.�.i.l��'t1j — -- _... � _ $ �. � m,�._ . . ._. , � � ,,,,,� M. . B x� c�.aiMs-nn�oe X G24380634003 03/31/2016 _..,.. �. UMBRELLALIAB X pCCUR EACH OCCURRENCE � 'IO OOO,OOU .-- ..__. .._ . E%CESSLIAB O$/$'I/ZO'I%(,AGGREGATE $ . ��....._.' � .......... _ ..__.... _� DED 1__ l R�rErvrioN s , .... � Aggregate g 10,00O,OOd�� ___.. _. .�.�� .� ., e_ - �, �v_ �._ _ WORKER5 COMPENSA710N �Tai! IT� � � �RH AND EMPLOYERS' LIABILITY - �----- l4 ANYPROPRIE70R/PARTNER/EXECUTIVE Y�N� WC0191739-00 , 03/31/2016 03/31/2017 �L ERCNACCID�Pd7 $ �e0000�� OFFICER/MEMBER EXCLUDED? �l N � A � — �� — �� -�—� (Manda4ory In NH} � � I E L DISEASE EA EMPLOYEE: $ �,0��,00� If yes describe under � nFSC`RIPTInN OF (7PERATIONS helow ,,,, # � E L.. 61SEASE - PbLICY LIMIT $ 1 000 �� .._ -�,.. ...._�.... ,.�.� .�..a..e nn... A, ..........� ...� ,..� ' C Commercial Inland Ma QT-660-6C533490-TIL-16 � 03/31/2016 03/31/2017 Limit 600,OO.Q p Commercial Professio B0621PP1T00915 03/31/2016 03/31/2017 �ILimit 3,00O,OOU . � _ . _..,,.:.,..�....... . — ._ .. . ...—,...._ ..�� _., .... .�� DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additlonal Remarks Schedule, may be attached if more space is required} o Job 7031 Proposal DD7155C City of Denton, Texas is listed as an additional insured on General Liability and Auto Liability where and to the extent required by a written contract or written agreement with the named insured. A waiver of subrogation is applicable for all policies where required by a written contract or written agreement and allowed by law. ' � � CERTIFICATE HOLDER City of Denton, Texas 215 E. Denton Street ACORD 25 (2014/01) CELLA�'li�N 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 REPRESENrA7IVE /� �� O 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD , , � � � • , �: File 6041 Page 125 of 139 ., . � . � �; � , � . , � . Re,sl�ondent's aller�lio» is direcled !o !he insurunce �°egui�•e»�enls beloi��. I! is highly �•ecommended lhul resl�ondei��s confe�� ilh lhei�• respecdive ir�sura»ce car��ier°s o�^ b�rokers 10 delermine in ad>>ance of P�•oposal/13id submission lhe ai�ai7abilrty of ir�san"GT1CG' CL'I'llficales u»d ei�do�^semer�ts us p�•esci°ibed and pJ�ovided herein. If an uppa��ent lo�� responder�� fails to comply sl�-ictly ti��ith the insura»ce requi��ements, Iha1 �•esJ�nndenl may be disgualifred fron� ai��ard of the cor�lracl. Upon co»lracl awa�•d, all inszn•ance �•eyuireine�Tis shall becoi�a.e cont�°actuad obligations, ��hich Ihe successful col�[racla� shadl have a dury 10 mui»lai�� lhroughoul lhe cou��se of this conlrac[. STANDARD PROVISIONS: Willroul limiti�t� a�:y of [!re otlrer ob[igrrtions or /iabilities of t/te Contraclor, tlre Coi:tractnr s/:n/! provide ai:d n:rrintai�r u�zfi! tlie cortlracPer! work leus heen canpleted and rrccepted by 1/te City of Dentoiz, Ow�:er, tlre mir:i�num insurairce coverage as i�7dicated hereinnfler. As soa� as practic�rble �fter �rotifrcatioiz of co�rtrnct rrwrrrd, Conlractor s/rnJ! file witlt tlte Purchasii:g Deparlment satisfactory certifrcates of iizsura�rce, contarni�tg tlre contract nu��:Ger aizd tille of t/re projec[. Co�itraclnr may, upo�: wriiten request to tl:e Purc/rasing Deparin:ent, ask for clnrificatiorz of airy iitsuraace requirente�zls nt a�ry fime; /�owever, Co��trnctors are slrongly advised to r�take such. requests prior to proposal/bid opei:i�:g, siizce t/re i�:surnnce requirements nray izot be n�odified or waived after proposal/bid ope�:iizg unless a wri(ten exception /tns been sub»zitted wit/: tlie proposa//bid. Conlrnclor s/tal/ irot comn�eirce any work or deliver ni:y nraterial un[il !:e or s/te recerves notificatioii t/:nt i/ee co�ttr�cl /ras been accepted, npproved, an.d sigi7erl Gy t/re City ofDe�:to�:. A// i�:surance policies proposed or oG[�iired iri satisf�tction of tlrese requirements slral! coi�zply wit/r dre fn!lowiitg general specrfrcalions, ai:�l s/ral/ be �naintni�ted in conzplia�zce witlr tlrese gei:errll specif[calio�zs t/rroughout the duratio�: of 1he Corrtraci, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in tlie State of Texas with an A.M. Best Company rating of at least A. Any deductibles or self insured retentions sl�all be declared in tl�e 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, tl�e 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, Cmployees and volunteers. � That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under tl�e policy and that this insucance 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 inerease the insurer's limit of liability. • Cai7ce!lntioir: Cit� requires 30 rtay wri[!en nolice s/rould aizy nf the policies descriGed oir Nre certificafe be ca�zce/%d or ��tateri�r//y chn�rged Gcfore Nre expirniio►r rlale. File 6041 Page 126 of 139 • 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 beyc��ci the cont��a�t expiratiai�, such that occurrences arising tiur-�ng the contract term which �ive ris�. �o claims ��.�c�e after �;�;��iration of the contract shall be cov��4�d. 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 obtai�i Owners and Contractors Protective Liability ]nsurance. � • Sl�ould any required insurance lapse during the contract term, requests for payments originating after �� C��se shall not be �,��Rc��;es�ed until the City recci�3�s s��tistLic�tcat�y evidence �f �-ci��st�t�c� cove��x�,� �� r°�;c�G�ired by this cc�s�taar��:ti, effective as of the 1;��e c��t�,. Xfiy:��urance is nt7t reins��t�e3, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: Atl r"rtas°ur°rar�� raircr'trs �arr�,�r�sc�t1' ��` c�t��itled irz .�arit:��'�rclio�t u�°'�ltis �c�rstrrr�l slrc�Il' trrCrfiti�atrtrll}� cc��rr�a/J' witiz ti�e �'"�allrr��rrr,� rrrtarka.>rt :s�r.rc�ci��s�d�tr�r�� a►:d sl��rJf �ac> >rinint�r'rrc�d r`�r r�,��tr��tarr�tce �+�i�i� ilrese arrltirlet,rrn/ specifrcalions Ilrroug/rou! llre dur�rtion of dfe ContrncP, or longer, if so �Toted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than �1,[1ilfi�.�lt��i.�ll� shall be provided and maintained by the Contractor. The policy sl�all 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: • �'�rv��°��. A shall i��l�zci�; ��r�;'�ai�es, operations, ��rc��iuets, and e��}�iet;eci c��t;��ts�,r��, i��c��t�l�,nt contrac�tcaa°�, �c�`�ir�utual liability c.c�svc�t-i��g this conir�� rtd t�r��t� ie��-i71 property damage coverage. • Coverage B sl�all include personal injury. • Coverage C, medical paymenis, is not required. If the Comprel�ensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury a€�� I'r°c�pc�y° Dai��y� Lial7i�ii}� for prer��`sses, operai�c�t�s, product� �r�ci completed ope��iia��, i��€�epen�lu�� con[r��:t�r's and ��•c��perty da►��5� resulting ii�t�r�� . 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. File 6041 Page 127 of 139 {X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than ��i�,f�� 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 Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Gmployer's Liability limits of at least $] 00,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attacl�ment ] in accordance witl� §406.096 of the Texas Labor Code aiad rule 28TAC ] 10.] 10 of the Texas Worker's Compensation Commission (TWCC). [] Owner's and Contractor's Protective Liability Insurance The Coiitractor shall obtain, pay for and maintain at all times during the prosecution of the work under tliis contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury wl�ich 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 ��C��,titl(l.fit} combined bodily injury and property damage per occurrence with a'fi� (��i[� [3{�t�.[l�l aggregate. [] Fi��e 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 tl�an _ _ __,_ _ _ each occurrence are required. [ ] Profcssional Liability Insurance Professional liability insurance with� limits not ]ess than '�1,�1(iil,Ililt}.�kCl per•claim with respect to negligent acts, errors or omissions in connection witli professional services is required under tl�is Agreement. File 6041 Page 128 of 139 [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form ror ] 00% of the completed value shall be provided. Such policy sha11 include as "Named Tnsured" 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 fidelity. The employee fidelity portion of this coverage should be written on a"blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [] Additionallnsurance 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 specifc contract, that requirement will be described in the "Specific Conditions" of the contract specifications. [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has einployees. This includes,. without limitation, independent contractors, subcontractors, leasing �companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. File 6041 Page 129 of 139 B. The contractor shal! pi-ovide coverage; based on proper reporting of classi�cation codes and payroll amounts and filing of any overage agreements, which meeis the statutory requirements of Texas Labor Code, Section 401.O11(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Conti-actor must provide a certif cate 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 ihe duration of the project, the contractor rnust, prior to the end of the coverage period, file a new certifcate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing co�vei•age for all persons providing services on the project; and 2. no later than seven days after receipt by tl�e contractor, a new certificate of coverage showing extension of coverage, if the eoverage period shown on the current certificate of coverage ends during the duration of the project. P. Tl1e contractor shall retain all required certifieates 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 pi-oviding 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. provi.de coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meeis the statutory requireinents 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 coveY•age showing that coverage is being provided %r all einployees of the person providing services on the project, for the duration of the project; File 6041 Page 130 of 139 3. provide the contractor, prior to ihe 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, prioa• to the other person beginning work on the project; and b. a new c:�.r•t.iJi��ie of coverage sho��ia�� :lcnsion of coverage, ��i�� to the end of the c�€��reA•�a�� period, if the cove�-�� p��iod shown on the ct�t•�°er�t certificate of coverage ends during ihe 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 govemmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) -(7), with the certificates of coverage to be provided to the person for whom ihey are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions contract by the contractor which entitles the governmental entity contract void if the contractor does not remedy the breach within receipt of noiice of breacl� from the governmental entity. � File 6041 Page 131 of 139 is a breach of to declare the ten days af�er File 6041 Page 132 of 139 t ! "� •' .' �' • 1 e Contract Information (for fornlal contracting puiposes): 'lhe following r.'nfornzaliorr will be us•ed ln write a contr°act, should your fi��m be selecled f'o�° award. � Firm's Legal Name: • Address: • Agent Authorized to sign contract (Name): • Agent's email address: 2. Subsidiary of: 3. Organization Class (circle): Parinership Corporation Individual Association 4. 1�ax Payer ID#: 5. Date Established: 6. Historically Underutilized Business: Yes or No 7. Does your company have an established physica] presence in the State of Texas, or the City of Denton? Yes or No, in wlzich? S. Please provide a detailed listing of all products and/ar services that yaur company provides. 9, I�as your company fi(ed or been named in any litigaiion involving your company and the Owner on a contract within the last five years under your current company naine ar any other company narne? If so ��a��°ide �I�tt�il� of the issues ��t�� re��s��:tion if �x�f��il�l�le. X�a�;l�tt�t: l�ta��t�it� wk��; (J�i�er was �ta��3lved. (Ncatice: I`�sil��t•e to disclose tl��s infc�t-��ation �it�ri�i�4 pro��sc�l ��r1�a��is�itan, ��+� ��t�i� discova.r�:c�, rnay result in contract tertnination at the Owner's option.) File 6041 Page 133 of 139 10. Have you evci- defaulted o» or failed to co�nplete a contract under your current coinpany name or any other company name? If so, where and why? Give name and telephone number of Owner. 1]. I-iave you ever had a contract terminated by the Owner? Tf so, where and why? Give name and telephone number (s) of Owner (s}. 12. Has your company implemented an �mployee Health and Safety Prograni compliant with 29 CFR 1910 "General Industry Standards" and/or 29 CFR l 926 "General Construction Standards" as they apply to your Company's customary activities? httc�://��-._ash�.,_�o��/��ls/osha��eb/otvasrch.sea�c.�� i��rm'?n cloc tv��e=S7'ANI.�ARC)S&n tac le u..� e.� _� vc1=]&p kcyv�jlue=1926 13. Resident/Non-Resident Bidder Deterrnination: Texas Govemrnent Code Section 2252.002: Non-resident bidders. Texas law prohibits cities and other govemmental units from awarding contracts to a non-resident firm i.uiless the amount of such a bid is Iower than the lowest bid by a Texas resident by the amount the Texas resident wauld be required to wlderbid in the non-resident bidders' state. In order to make this determination, please pravide the naine, address and phone nu�nber oi: a. Responding firms principle place of business: b. Company's majority owner principle place of business: c. Ultimate Parent Company's principle place of business: File 6041 Page 134 of 139 14. �'�-��►=i�E� �I��te�ii� c�:� e�ra�r°i�r�c� �E��c3 cichl��r�t�°. a, Sign below and return form with final submission. ._ ....__ . Signature Company Date File 6041 Page 135 of 139 ��. �1 �I.� M' � - �. ..,� 1 • • • � • File 6041 Page 136 of 939 � _ � .m.��.—�_�.� � � .�_.w . __ FORI�f CiQ ' _ — ,w__ Forvendor or ot tF�TEREST QUEST(Ot�!(�[AIRE - GOt�FLIGT O� her e�son doin� business with local�a�vernmental er�tti �',�.�. �his questiorsn�ir� reflec4s c��nges ta7�de to the law €�y H•B• 23, $4t�� Leg., Regular �c��ion. This questiannaire is being fi!ed in accordance wilh Chaptcr 176, Local Govemmenl Code, by a v€�e�ti�r �'tho has a bu; iness reiat�s�d'w��p as dafined by Section 176.001{i-a} �vith a local govemmenial enlity and the vendor meels rc.c�u�rements under'.Section 1;'G.��6(a). By Iztiv this quesiionnaire must be filed v�ith the records administralor of the local gc��r�rnment ecstity not laler Ihan the 71h�'3usiness day after ihe da;e the vendor becomes aK�are of facts that require the stalement to be fil�d. See �3��c1��n 176.006(a-1), Loc;=.) Government Code. A vendor commits an offense 'rf the vendor knowingfy violates Section 176.0�6. Locat Government Code. An ofiense �;inder this section is a misdemeanor. �w �. __ e _�_,—_. ,; N�me of vendor s,vt�u� I�as a i�u�iness r'�la4�s�nship wittt 6r5c�1 govemmental enf'sty. �,. � ,.. �-- ; J J� _ �% ��}� � .P i' '' � _�,�y�r ��f�/y� f • . � �iT� .,�L J�.3�`._,,.,.. i�. �i{ `, 4- � �"«.�..�u.�. _. ____�ew.n �� •— .� _ ..,,.—...m....�.m.,.�e.. .e.�.�,— ..-� .. ` . , ❑ Cfrcr.k ilras box �f ou ar� �9se� an [t s�ate to �s �r'evi�usl f'slec! uestionnaire, ;--- -�- ..—.,... _w..w..—Y..�._.� �1� .3_ .�'__.��m...�.._._—.—,�.w—...__�..,_ < ZThe lavd reauires that you file an updated compieted quesuonnaire �vith the a,�p��;�ri�4� filing authority not later than`ne ?`" lousiness day � ._�'.'''�---��._•.—_ ____ �ltc�r the dale s�r�, vtts��f� yQza b�.c�r��r �w�e� lt��4 the c��i��ir7�1`v filed �e�s",iar��s�ir� vea� wr�c:�rra° t�1t� or irt�c�ur�i�. ��u,ti;ime oPtocal r�»crnmcul olTicer about ra�hom 41�e in[ormutiun in thisseceinn iti lieiu� diseloseJ. ,.��...�..�..... ._�..mm�.. . �__...—�., Name of OYicer '1'his section, �i€urti 3 iuciu�ing sU;S,�saE�..�t, l3. C� D), must be crnrksleted S"ssr` �,sch oflicer 7ti ith ��•hom !h: verd�rhas an emp�o;ment or G�licr busir,ess rclatiaiuhip .�� dcliucd !�y ��r�+on 1?{s.V�}I(I-:ri. i_�r::zal Guvernmcnt C<�dc. lttrsc9i ad�iitican�l pagc� to 4pis l�arm Cl(2 �s nccessarv. ��. ls U�e loc:il gm�ernment oti icer named in this sec(ion icccivin, or likel�• w rocci��c tax�ble incumt, o�her than invesuncn: inconu, fi•r?n the vendnr? , � 1��:1 �.._,...,.� � V . ' Ii, I� II1L' \l'I1ljOf fL'l'll�'lllc (?� 11'nC1V iJ 1'CCC1vC 111\BbIC Illl'U[ll�, Ul�1CC 1�1:111 111}'C��Jlll:lll Il1�VI11C. f714t1 UI' Ol l�Y[ �ircclion af Jtc local �nv�.'.L;;s*�nl crilic�°r ❑ameA in �L:s seetinn riA'D Uic tuxable incomc is not rcuivcd Gom the local guvemmenta] entity? . �1 Ycs t.� �� Y C�, Is tliu filcr ofihis �jucs�ionr.airc empliiycd b�� a corpuis:ior, or uthcr �:isincss cr.tii; wi[h respcct to ��•hicli lhc 1ow1 govcrnmcul a�i"tic;4c scrt��s :ss �s� ofliccr ur direclur. o� holds an o�+ncrsfiip of onc perccnt or morc? � Ycs �—.�.•--a '�o Ii, DCKf�� C:1C�7 C9l5UIt�;�1111'I11 (IC })OSPIICSS and £amily rclatior,sb,ip +vith dte laca! go�•rrnment ofliccr named in lhis scdian. �� I have no of Interest to disclose. /-- �3 - ib _ _ • .�. Si�natu�r ufkc°,�t,art daing busines5 �vith thc �o�c�nmciti:af cntil)' File 6041 Page 137 of 139 Exhibit J Certificatc of Interested Parties Electronic l+iling In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the Crty inay not enter into this contract unless the Contractor submits a disclosure of interested parties (Fonn 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Coirunission has adopted rules requiring the business entity to f le Form 1295 electronically with the Commission. Contractor will be reauired to farnish an t�e•� i�nal nntari7e� Certificate of Interest Parties before the coniract is awarded. in r�c�:�.►i�tiance with r�vernment Code 2252.908. The contractor shall: Log onto the State Ethics Commission Website at : Da�:i.o�;:;li�.vwu�,�:t)aEc�.�;is�ie.tx.�:b�1v;�Yi��f�;��°}'e:��` i�� 9��1�r��9`��,� 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to �r�aay�d� ��gr�,�(rr'.c��crl�ic;��j�� t��7,i, with the contract nurrtber in the subject line. (EX: Contract 1234 — Fonn 1295) The City must acknowledge ihe receipt of the filed Form 1295 not later than the 30th day after Council awai-d. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics Coinmission's website within seven business days. Contract # C041 File 6041 Page 138 of 139 CERTIFICATE OF INTERESTED PARTIES Compiete Nos. 1- 4 aP7d G if lleere ;�rc anteresled wsar46es. Cornplete Nos. 1, 2, 3, 5, and 6 i( II�pC�rs are no int��at�sted parties. -��n.. -._ ..__�e.—__ 1�Name of husiness eniity filing form, and the cily, state and country of the �usiness entity's place of business, Pitisburg 7ank & iower Co., Inc. Henderson, KY United Stales ��+��x�r� ts! r�cswe�r��raa�:ntal erittty or �tate agency tlt,;st r� a g3atly !o ti1� t;crE�ls:��i lcar w9si�6� Efx� a+�rpret i� being filed. City of Denton, TX FORM 1.295 xorx OFFIGE USE ONLY CER7IFICATION OF FILING Certificate Numher: 2016-6165 Date Filed: 01/27/2016 Date Acknowledged: g Provida the identification nurriber used by the governmental entity or sdate agency to irack or identify the coniract, and provide a descrlption of the goods or services to be provided under ihe contract. 6041 Remove existing roof and install new 3/8" self-supported dome roof. _ _. -- •� f Nature of inlerest (check �ap��lA�� 4 � Name of Interested Party �� C�tY� State, Country (p(ace of husiness) � Controlling � Intermediary 5 Gl�ecte only if there is NO Interested Pa�ty. �� __— _ _ -- --��._._ ..... s AFFIDAVIT I swear, or affirm, under penally of perjury, that the a0ove disciosure is true and correct. �;�„ '� � r fi "�'��r . , . •�. . ,. _m_ LL , —. _ � ,._ , ��- � a ,,.,_- -�,.� , ,. � �. 5��._ K-�.• _., , = a � .. �.., �--. ---�ti _,. � ---.. .� — _ ,�g , �. Signature oF authorized agent �.i{`rsiiz�+��c�k}�.buslness entiry . r � .- - '�;r.,z; �,,.� r. r�i-f-i� �,Il'�!"At��' :a 9'1l(t%i}� i :��,Rl.. i9fi3CiV� • �cv�sor� tn �sr5� �'4a135i,r�@s�esi E�r•tcars' E`r�e„, 3�y -.J � � �. �,�.,. .._,:— ' �� ', _ a ° alYr �aa�i �_ � �.-- , this the�:��,... day o1��.v.� . �� {it ,' �;�l�r ci�rta(�r wk�6z,ti, wai��+e�� €tty �t�r�� ,��t� seal of o�ce. �# ,_ ... „_ w� - _ -- Signalure a( �fticer administering oalh Forms poovided by Texas Ethics Commissian �::'':�°!t� �tl��S�f=fi� Printed name of officer adminiscering oath WUV�N. eYh I Cs. StatE.tX. Us File 6041 Page 139 of 139 r---� . �' �L- Ol d111CCf (1.Ufllllll�lCllii}� VaUI 1#�r��c��a V1.0.34416