21-2701ORDINANCE NO. 21-2701
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME -RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A DESIGN -BUILD
AGREEMENT WITH BETA ENGINEERING, LLC, FOR THE DESIGN AND CONSTRUCTION
OF THE HICKORY GAS INSULATED SUBSTATION (GIS) FOR DENTON MUNICIPAL
ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE (RFQ 7670 — AWARDED TO BETA ENGINEERING,
LLC, IN THE NOT -TO -EXCEED AMOUNT OF $40,469,000.00).
WHEREAS, the City has solicited, received, and evaluated competitive proposals for the
design and construction of the Hickory Gas Insulated Substation (GIS) for Denton Municipal
Electric; and
WHEREAS, the City Manager, or a designated employee, has received, reviewed, and
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the other evaluation factors included in the request for
proposals; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies, or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The items in the following numbered request for proposal for materials,
equipment, supplies, or services shown in the "Request Proposals" on file in the office of the
Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City
considering the relative importance of price and the other evaluation factors included in the request
for proposals.
RFP
NUMBER CONTRACTOR AMOUNT
7670 Beta Engineering, LLC $40,469,000.00
SECTION 2. That by the acceptance and approval of the above numbered items of the
submitted proposals, the City accepts the offer of the persons submitting the proposals for such items
and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms,
specifications, standards, quantities, and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. That should the City and person submitting approved and accepted items wish
to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the
proposals, the City Manager, or their designated representative, is hereby authorized to execute the
written contract which shall be attached hereto; provided that the written contract is in accordance
with the terms, conditions, specifications, standards, quantities, and specified sums contained in the
Proposal and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of
Denton under this ordinance to the City Manager of the City of Denton, or their designee.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City
Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with
the approved bids.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by OeKo c(i 14 ua and
seconded by ?A -o I (Yle I tZC' C This ordinance was passed and approved by the
following vote 1 (0 - A-]:
Aye Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1:
✓
Brian Beck, District 2:
Jesse Davis, District 3:
✓
Alison Maguire, District 4:
.l
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the I 'I th day of -Oecp-�)p e,{ 52021.
GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
Digitally signed by Marcella
Lunn
DN: cn=Marcella Lunn, o,
1 r h `ou=City of Denton,
�
J — email=marcella.lunn@cityofd
BY: _ enton.com, c=U5
Date: 2021.11.30 14:01:38
-06'00'
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I CITY
01FL
DENTON
Docusign City Council Transmittal Coversheet
RFP I 7E
File Name I "'
Purchasing Contact
City Council Target Date I D
Piggy Back Option I "c
Contract Expiration "/
Ordinance 1 21
E
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DESIGN BUILD AGREEMENT
BY AND BETWEEN
CITY OF DENTON (as Owner)
AND
[Beta Engineering, LLC] (as
Contractor)
FOR THE CONSTRUCTION OF THE HICKORY GIS SUBSTATION
DATED AS OF DECEMBER 14 , 2021
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LIST OF EXHIBITS
A. Scope of Work & Design Basis (Exhibit A on file at the office of the Purchasing Agent)
i.
Appendix A
— RFP Introduction, Scope Discussion, Discussion of Sequencing and
Work Already Performed.
ii.
Appendix B
— Design Basis Documents
iii.
Appendix C
— Wall System Drawings and Specifications
iv.
Appendix D
— Building Drawings and Specifications
V.
Appendix E
— Site Development Drawings and Specifications
vi.
Appendix F —
Underground Transmission Drawings and Specification
vii.
Appendix G
— GIS Drawings and Specification
viii.
Appendix H
— Outdoor Substation Drawings and Specifications
ix.
Appendix I —
Distribution Drawings and Specifications
X.
Appendix J —
Geotechnical Report
xi.
Appendix K
— Bid Checklist
xii.
Appendix L
— Existing Switchgear Building Drawings
xiii.
Appendix M
— Laydown Yard and Items Complete
xiv.
Appendix N
— Existing Hickory Substation
XV.
Supplementals
B. Form of Change Order
C. (1) Form of Partial Lien Waivers and Release
(2) Form of Final Lien Waiver and Release
D. (1) Form of Mechanical Completion Certificate
(2) Form of Substantial Completion Certificate
(3) Form of Final Completion Certificate
E. Notice to Proceed
(1) Form of Limited Notice to Proceed
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(2) Form of Final Notice to Proceed
F Permit Responsibility
G. Milestone Payment Schedule
H. Form of Performance Security
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I. Form of Monthly Progress Report
Key Personnel
K. Not used
L. Not used
M. Project Schedule
N. Contractors Rate Sheet
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DESIGN BUILD AGREEMENT
THIS DESIGN BUILD AGREEMENT (this "Agreement") dated as of and effective the
DECEMBER 14 , 2021 ("Effective Date"), is by and between Beta Engineering, LLC
(hereinafter referred to as "Contractor") and City of Denton, a home -rule municipal corporation
organized under the laws of the State of Texas (hereinafter referred to as "Owner"). Contractor
and Owner may be referred to collectively as the "Parties" or individually as a "Party".
RECITALS
WHEREAS, Owner has determined the need to replace the existing Hickory Street Substation
with a new Hickory Gas Insulated Substation ("GIS") facility and owns the property for the new
substation;
WHEREAS, Contractor has represented to Owner that it is qualified to perform engineering,
procurement, construction, testing, start-up, commissioning and training services of the nature
contemplated by this Agreement; and
WHEREAS, Owner desires to engage Contractor to perform engineering, procurement,
construction, testing, start-up, commissioning and training services related to Owner's planned
GIS facility, which is to be located at 2600 W. Hickory St. in the City of Denton, Texas, and
Contractor desires to perform such services for Owner;
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions set forth in
this Agreement, Contractor and Owner agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
In addition to other defined terms contained in this Agreement, the following terms
shall have the meaning specified below in this Article.
"Adjusted Reference Price" means the Reference Price for Copper, Steel and PVC Resin adjusted
up or down five percent (5%), as applicable.
"Affiliate" of a Party means any other entity directly or indirectly Controlling or Controlled by or
under direct or indirect common Control with such Party.
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"Applicable Law" means any law, including, but not limited to, Environmental Laws, statute,
rule, regulation, ordinance, code, judgment, decree, injunction, writ, order, license, regulation of
any Governmental Authority having jurisdiction over a Party or any portion of the Work, in each
case applicable to the Work or the rights and obligations of a Party under this Agreement.
"Business Day" means a day other than Saturday, Sunday, or a day other than on which banks are
legally closed for business in the State of Texas.
"Change in LaNv" means the enactment, adoption, promulgation, modification (including a written
or oral change in interpretation by a Governmental Authority) or repeal of any Applicable Law or
Permit after the Effective Date that has or will have an adverse effect on Contractor's costs and/or
schedule for performing the Work; provided, however, that no Change in Law pursuant to the
Contract Documents shall arise or be deemed to arise by reason of (a) any applicable national,
federal, state or provincial (other than City of Denton) income tax law (or any other applicable tax
law based on income), (b) a labor wage law or other Applicable Law (other than imposed by City
of Denton) that affects Contractor's or its Subcontractor's costs of employment, and (c) the final
enactment, modification, amendment or repeal of an Applicable Law prior to the Effective Date
with an effective date of such action that falls after the Effective Date.
"Change Order" means a written instrument, in substantially the form attached hereto as Exhibit
B, signed by Owner and Contractor in accordance with Article V.
"Commodity Price Change Order" means a change order pursuant to Section 5.3(b)(6) and shall
be; (a) a credit to Owner for quantities of Copper, Steel and PVC Resin, if the Copper Index Price,
the Steel Index Price or the PVC Resin Price is less than ninety five percent (95%) of the Reference
Price for such commodity on the day such commodity is purchased by Contractor for the Work;
and/or (b) a price increase to Contractor for the quantities of Copper, Steel and PVC Resin, if the
Steel Index Price, the Cooper Index Price or the PVC Resin Price is greater than one hundred and
five percent (105%) of the Reference Price on the day such commodity is purchased by Contractor
for the Work. The Section 5.3(b)(6) Change Order shall be for the quantity of the commodity
purchased (Copper, Steel or PVC Resin) multiplied by the difference between the Adjusted
Reference Price and applicable Steel Index Price, Copper Index Price or PVC Resin Price.
Contractor shall provide commercially reasonable documentation to Owner documenting the basis
for the Commodity Price Change Order associated with each requested Change Order.
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"Confidential Information" means information or data that the Disclosing Party considers to be
a trade secret or competitively sensitive and which is designated as such in writing by the
Disclosing Party. In order to be considered Confidential Information, written information has to
be identified at the time of the disclosure with an appropriate legend, marking, stamp or positive
written identification on the face thereof as Confidential Information. In order to be considered
Confidential Information, verbal or visual information has to be so identified at the time of the
verbal or visual disclosure and the Disclosing Party will notify the other Parry (the "Receiving
Party") in writing within thirty (30) days of the disclosure and specifically identify the
Confidential Information previously disclosed. Confidential Information does not include
information or data that:
(a) was in the public domain at the time of the disclosure or is subsequently
made available to the general public without restriction and without breach of this
Agreement;
(b) was known by the Receiving Party at the time of disclosure without
restrictions on its use or independently developed by the Receiving Party, as shown by
adequate documentation;
(c) is disclosed to the Receiving Party by a third person without restriction and
without breach of any agreement or other duty to keep the information confidential; or
(d) is disclosed in compliance with the requirements of Applicable Law,
including the Texas Public Information Act, Tex. Gov. Code Ch. 552 et al.
"Contamination" means any Hazardous Material present at the Site or which has been brought to
the Site by a party other than Contractor or its Subcontractors.
"Contract Completion Date" means October 25, 2024 as may be adjusted pursuant to the
Agreement.
"Contract Documents" means this Agreement plus all attachments, exhibits, specifications,
schedules, and drawings and any Change Orders or amendments thereto.
"Contract Interest Rate" shall have the meaning set forth in Section 4.3(c).
"Contract Price" means [CONTRACT AMOUNT] IJ.S. dollars ($40,469,000), which is the total
amount payable to Contractor pursuant to this Agreement in accordance with the "Milestone
Payment Schedule" in Exhibit G, as adjusted pursuant to the terms hereof.
"Contractor" shall have the meaning set forth in the preamble to this Agreement.
"Contractor Payment, Maintenance & Performance Bond" shall have the meaning set forth in
Section 4.7(b).
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"Contractor's Project Manager" or "Project Manager" shall mean the person identified in
Section 7.2.
"Control" means the power to direct or cause the direction of the management and policies of a
person or entity, whether through ownership of voting securities, by contract, or otherwise, and
"Controlled" and "Controlling" shall have correlative meaning.
"Copper" means any Copper purchased by the Contractor for the Work.
"Copper Index Price" means the daily index price of Copper as published by the Chicago
Mercantile Exchange as the closing price as represented by trading symbol HG:CMX.
"Corrective Action Plan" shall have the meaning set forth in Section 3.2(c).
"Delay Damages" shall have the meaning set forth in Sectic,ns 9.6 and 12.8 and as follows:
$10,000 per calendar day after Contract Completion Date.
"Delivery Point" means the point of delivery for the Owner -Supplied Equipment as set forth in
Section 2.20(a).
"Design Warranty" shall have the meaning set forth in Section 6.2.
"Disclosing Party" means the Party disclosing information in Section 15.2.
"Early Substantial Completion" shall mean the number of days Substantial Completion is
achieved prior to the Contract Completion Date.
"Effective Date" shall have the meaning set forth in the preamble to this Agreement.
"Engineering Services" shall have the meaning set forth in Section 6.2."Environmental Laws"
means all federal, state and local laws, rules, regulations and ordinances governing, regulating or
relating to public health, pollution, or the protection of the environment (including ambient air,
noise, soil, surface water, ground water, wastewater, wetlands, land or subsurface strata),
including, but not limited to, those relating to (a) emissions, discharges, releases or threatened
releases of Hazardous Materials into the environment, (b) manufacture, generation, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, and
(c) human exposure to Hazardous Materials or conditions, including the laws and regulations
promulgated pursuant to: the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq., as amended, the Hazardous Materials
Transportation Act, 49 U.S.C. § 5101 et seq., as amended, the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. § 6901 et seq., as amended, the Federal Water Pollution Control
Act, 33 U.S.C. § 1251, et seq., as amended, the Clean Air Act, 42 U.S.C. § 7401 et seq., as
amended, the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., as amended, the Oil
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Pollution Act, 33 U.S.C. §2701 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651
et seq., the Emergency Planning and Community Right -to -Know Act, 42 U.S.C. § 11001 et seq.,
the Endangered Species Act, 16 U.S.C. § 1531 et seq., as amended, the Safe Drinking Water Act,
42 U.S.C. § 300f et seq., as amended, and the National Environmental Policy Act, 42 U.S.C. §
4321 et seq., as amended, together with all applicable similar and related federal, state and local
laws, rules, regulations and ordinances, as may be amended from time to time.
"Facility" means all of the equipment and systems related to Hickory Gas Insulated Substation
including all other equipment, systems and materials, including associated and ancillary systems,
subsystems, assemblies, instruments, equipment, apparatus, materials, structures, facilities,
appliances, lines, conductors, and all other components and documents comprising, describing and
integrating the entire facility into a fully operational gas insulated substation as described in
Exhibit A.
"Facility CPM Schedule" shall have the meaning set forth in Section 3.2(b).
"Final As -Built Drawings and Documentation" means all drawings, specifications and other
documentation prepared by Contractor to construct the Facility in accordance with the standards
of performance set forth in Section 6.2, which accurately and completely represent in detail in all
material respects the physical placement of all Facility components and systems as installed and/or
constructed as at the time of Final Completion, including "as -built' surveys illustrating the
established building setback lines, if any, and the location of the Facility on the Site and within
any established boundaries and setback lines.
"Final Completion" shall have the meaning set forth in Section 9.5(b).
"Final Notice to Proceed" means the written notice delivered from Owner to Contractor indicating
that the Bond Financial Closing has occurred.
"Force Majeure" shall have the meaning set forth in Section 16.1.
"Governmental Authority" means any United States federal, state, local or other governmental,
regulatory or administrative agency, governmental commission, department, board, subdivision,
court, tribunal, or other governmental arbitrator, arbitral body or other authority. "Hazardous
Materials" means, collectively, (a) any hazardous, toxic, or polluting substance, material, or waste
as defined or regulated under any Applicable Law; (b) any petroleum or petroleum products,
flammable materials, explosives, radioactive materials, asbestos, urea formaldehyde foam
insulation, and transformers or other equipment that contain polychlorinated biphenyls, and (c) any
other chemical or other material or substance, exposure to which is prohibited, limited or regulated
by a Governmental Authority.
"Initial Notice to Proceed" shall have the meaning set forth in Section 3.1.
"Key Personnel" means those Contractor positions identified in Section 2.17.
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"Lien" means with respect to any property or asset, any mortgage, deed of trust, lien, pledge,
charge, security interest or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected or effective under Applicable Law, as well as the interest of any lessor under any
conditional sale agreement, capital lease or other title retention agreement relating to such asset.
"Nl ajor Subcontractors" means any Subcontractor with a scope of work having consideration due
to such Subcontractor greater than $500,000.
"Major Subcontracts" means all of the contracts between Contractor and Major Subcontractors.
"Mechanical Completion" shall have the meaning set forth in Section 4.1.
"Milestone Payment Schedule" means the summary schedule of values as shown in Exhibit G.
"Milestone Payment" shall have the meaning set forth in Section. 4.3(a).
"Other Equipment Delivery Site Work" means the Work comprised of Contractor's timely
making available of sufficient space at the Site for to complete Other Owner -Supplied Equipment
Deliveries, in each case which tasks are more particularly described in Exhibit A.
"Other Owner -Supplied Equipment Delivery" means each delivery of all Owner -Supplied
Equipment available for loading onto Contractors truck at the Owner's Brinker Substation,
complete with corresponding packing lists supplied by Owner.
"Owner" shall have the meaning set forth in the preamble hereto.
"Owner's Representative" means the person identified pursuant to Section 7.1.
"Owner -Supplied Equipment" means the equipment, and its associated drawings, installation
instructions, operation and maintenance manuals, spare parts and technical advisor services
associated with two (2) 15 kV Switchgear Buildings provided by Owner and furnished to
Contractor as described in Exhibit A.
"Performance Security" shall have the meaning set forth in Section 4.7(a).
"Permits" means any permit, license, authorization, consent, registration, approval, permission,
ruling, certification, or exemption that must be obtained from any Governmental Authority for the
performance of this Agreement, as set forth in Exhibit F.
"Project Milestone" means those activities and associated deadlines set forth in the Project
Milestone Schedule.
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"Project Milestone Schedule" means the schedule of dates for completion of each principal
category of the Work for achieving each Project Milestone and for achieving Substantial
Completion by the Contract Completion Date. The Project Milestone Schedule is set forth in
Exhibit M.
"Prudent Utility Practice" means that degree of skill and judgment and the utilization of practices,
methods, and techniques and standards that are generally expected of skilled and experienced
engineering and construction firms in the electric power industry in the United States of America.
Prudent Utility Practice is not limited to the optimum practice, method or act to the exclusion of
all others, but rather to a spectrum of reasonable and prudent practices, methods, standards and
procedures.
"Punch List" means a listing of all incomplete or deficient Work, prepared and agreed to by the
Parties pursuant to Section 9.5.
"PVC Resin" means PVC piping purchased by Contractor from a third party for the Work.
"PVC Resin Price" means the actual price paid by Contractor ($/ton) to a third party for any PVC
pipe required for the Work.
"Receiving Party" shall have the meaning set forth in the definition of"Confidential Information".
"Reference Price" means $4.74/lb for Copper, $1,330/ton for PVC Resin and $1,919/ton for Steel.
"Services" means the engineering, procurement, construction, testing, start-up and commissioning
services to be performed by Contractor in accordance with the Contract Documents.
"Site" means the Owner's site on which the Facility is located, which is more particularly described
in Exhibit A.
"Steel" means any structural, architectural, or other Steel purchased by Contractor required for the
Work.
"Steel Index Price" means the daily index price of Steel as published by the Wall Street Journal
as the closing price reported as the NYSE American Steel Index.
"Subcontractors" means any person with whom Contractor has entered into any subcontract,
purchase order or other agreement for such person to perform any part of the Work or to provide
any materials, equipment, supplies or services, including any person at any tier with whom any
Subcontractor has further subcontracted any part of the Work.
"Substantial Completion" shall have the meaning set forth in Section 9.2.
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`' `Warranty Period" means the period commencing on the date of Substantial Completion and
ending on the third anniversary thereof; provided, however, any Work repaired or replaced shall
be re -warranted for a three year period that shall not, however, extend beyond the fourth
anniversary of the date of Substantial Completion. Owner Supplied Equipment will not have a
Warranty Period under this Agreement but all work to integrate Owner Supplied Equipment will
be subject to the Warranty Period.
"Work" means the Services and all things to be designed, engineered, manufactured, procured,
furnished, executed, installed, constructed, tested, completed, made good or otherwise provided by
Contractor in accordance with the Contract Documents, all as more particularly described by the
descriptions contained in Exhibit A.
SECTION 1.2. Rules of Interpretation.
(a) Terminology. Unless otherwise required by the context in which any term
appears:
(i)
masculine shall include
the feminine and neuter.
The singular shall include the plural and the
(ii) References to "Articles," "Sections,"
"Annexes," or "Exhibits" shall
be to articles, sections, annexes, or exhibits of the relevant Contract Document, and references to
paragraphs or clauses shall be to separate paragraphs or clauses of the section or subsection in
which the reference occurs.
(iii) The words "herein," "hereof' and
"hereunder" shall refer to this Agreement as a whole and not to any
particular section or subsection of this Agreement; the words "include,"
"includes" or "including" shall mean "including, but not limited to."
(iv) The term "day" shall mean calendar day
(beginning at 12:00 a.m.
and ending at 11:59 p.m.), in the location where the relevant (a) payment of funds is to be received,
(b) notice is to be received, or (c) performance is to be made. Whenever an event is to be performed
by a particular date, or a period ends on a particular date, and the date in question falls on a
weekend, or on a day which is not a Business Day, the event shall be performed, or the period shall
end, on the next succeeding Business Day.
(v) All accounting terms not specifically defined
herein shall be
construed in accordance with generally accepted accounting principles in the United States of
America, consistently applied.
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(vi) All references to a particular entity shall
include such entity's
successors and permitted assigns.
(vii) All references herein to any contract
(including the Contract Documents) or other agreement shall be to such
contract or other agreement as amended and supplemented or modified to
the date of reference.
(viii) All references to any Applicable Law
includes any amendment,
modification or successor thereto.
(ix) Words and abbreviations that have well-
known technical or trade
meanings are used in these Contract Documents in accordance with such recognized meanings,
except to the extent a definition herein set forth requires otherwise.
1. 1.2 Headings. The titles of the articles and sections herein have been inserted
as a matter of convenience or reference only, and shall not control or affect the meaning or
construction of any of the terms or provisions hereof.
1.1.3 Joint Responsibility for Drafting. This Agreement was negotiated and
prepared by both Parties and none of the provisions hereof shall be construed against one Party on
the ground that such Party is the author of this Agreement or any part thereof.
1. 1.4 Obligation to Act in Good Faith, Etc. The Parties shall act reasonably and
in accordance with the principles of good faith and fair dealing in the performance of this
Agreement. Unless otherwise expressly provided herein, where the Agreement requires the
consent, approval, or similar action by a Party, such consent or approval shall not be unreasonably
withheld or delayed, and wherever the Agreement gives a Parry a right to determine, require,
specify or take similar action with respect to a matter, such determination, requirement,
specification or similar action shall be reasonable. This Agreement may not be complete in every
detail. Owner and Contractor shall comply with its intent and general purpose, and shall not avail
itself of manifest errors or omissions herein to the detriment of the Facility.
ARTICLE II
THE WORK AND OBLIGATIONS OF THE PARTIES
SECTION 2.1. The Work
Contractor agrees to timely perform the Work for the Contract Price in accordance
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with the Scope of Work set forth in Exhibit A. Time is of the essence in completion of the Work
and Owner will suffer financial if Final Completion is not achieved by the Contract Completion
Date, plus any extensions thereof allowed by this Agreement. Contractor shall fully perform the
Work in accordance with Prudent Utility Practice, all Applicable Laws and all other terms and
provisions of this Agreement. Contractor shall design, engineer, procure and construct the Facility
so that the Facility reaches Final Completion. Contractor acknowledges that it shall carry out all
of the supply and services specified in the Contract Documents to satisfy the requirements of the
Contract Documents, and to the extent not specifically addressed by the Contract Documents, in
accordance with Prudent Utility Practice. The Parties shall cooperate fully in all regards with the
intent to improve the performance of the Work and reduce the likelihood of operating and
maintenance impacts consistent with the requirements of the Contract Documents.
SECTION 2.2. Specific Obligations for the Work
Without limiting the generality of Section 2.1 or the requirements of any other
provision of this Agreement (including, but not limited to, Exhibit A), Contractor shall:
(a) Protect from damage and properly store all equipment procured by
Contractor or accepted by Contractor at the Site or other location (including Owner -
Supplied Equipment);
(b) Provide construction, construction management (including the
furnishing of all field supplies, tools, construction equipment, and all Site
supervision and craft labor), engineering, procurement, inspection and quality
control services required under this Agreement;
(c) Coordinate all delivery schedules and performance obligations of all
Subcontractors so that performance under such subcontracts and purchase orders, as
the case may be, is enforced in accordance with the terms thereof and as required by
this Agreement;
(d) Perform inspections of the Work of Subcontractors as reasonably
required to determine conformance with all of the requirements of this Agreement;
(e) Comply with all Applicable Laws, including, but not limited to, state and federal
occupational, safety and health laws and regulations;
(f) Perform all quality control and quality assurance activities
(including witnessing tests) to confirm that the Work complies with this Agreement;
(g) Perform the Work in accordance with the Project Milestone
Schedule; and
(h) Perform commissioning and start-up, including the turnover
packages, technical direction, and Owner interfaces.
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SECTION 2.3. Spare Parts
Contractor shall provide Owner with a recommended spare parts list as equipment
is procured with a final list, including prices, for the Facility within twelve (12) months after
receiving a Final Notice to Proceed. The spare parts list shall identify those spare parts that are
recommended for operations. Contractor shall supply the spare parts necessary for testing, startup
and commissioning. Subject to Owner's consent, which shall not be withheld unreasonably,
Contractor may use any spare parts maintained on the Site by Owner. Contractor shall reimburse
Owner for Owner's replacement cost of the Owner -supplied spare parts used by Contractor, unless
replaced by an equipment supplier as a warranty replacement. Contractor's obligations to provide
the spare parts list does not include any spare parts for Owner -Supplied Equipment.
SECTION 2.4. Contractor's Tools and E uipment
Contractor shall furnish all tools and equipment necessary and appropriate for the
timely and safe performance and completion of the Work.
SECTION 2.5. Employment of Personnel
(a) Contractor shall not employ, or permit any Subcontractor to employ,
in connection with its performance under this Agreement, any unfit person or anyone
not skilled in the Work assigned to such person. Contractor agrees to promptly
remove (or to require any Subcontractor to remove) from its services in connection
with the Work any employee who is unfit or unskilled. If Owner has any objection
to the fitness or qualifications of any person retained by Contractor to perform the
Work, Owner shall so notify Contractor in writing. Upon receipt of such notice,
Contractor shall investigate Owner's concerns and take appropriate action, which
may include the reassignment or removal of such person. Notwithstanding any other
provisions in this Agreement to the contrary, Contractor shall provide workers
qualified, skilled and specialized (and duly licensed as required) in the Work to
which they are assigned.
(b) Owner reserves all rights to deny placement of any of Contractor's
workers on Owner premises, property, equipment or projects in its reasonable
discretion. Such denial of placement of subject workers shall be conveyed subject
to the provisions of Section 7.3 "Notices".
(c) Contractor shall use its commercially reasonable efforts to maintain
good labor relations, shall comply with the applicable project labor agreement, and
shall implement actions designed to avoid labor disputes that might adversely affect
performance of the Work.
SFCTION 2.6. Clean-up and Non -Interference
Contractor shall at all times keep the Site free from waste materials or rubbish
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caused by its activities. As soon as practicable after the completion of all Punch List items,
Contractor shall remove all of its equipment and materials not constituting part of the Facility and
remove all waste material and rubbish generated by Contractor or that Contractor has brought to
the Site, in connection with Contractor's performance of the Work, from the Site to a permitted
disposal facility, and restore the Site in accordance with all Applicable Laws and this Agreement.
SECTION 2.7. Safety and Security
Contractor recognizes and agrees that safety is of significant importance in the
performance of the Work and that Contractor is responsible for performing the Work in a safe
manner. Contractor agrees to perform the Work, and Contractor shall require all Subcontractors
to perform their portion of the Work, in accordance with the safety and health rules and standards
of Applicable Law and the safety program developed by Contractor and submitted to Owner.
Contractor further agrees to provide necessary training to its employees and Subcontractors to
inform them of the foregoing safety and health rules and standards. Should Owner at any time
observe Contractor, or any of its Subcontractors, performing the Work in an unsafe manner, or in
a manner that may, if continued, become unsafe, then Owner shall have the right (but not the
obligation) to require Contractor to stop the Work affected by the unsafe practice until such time
as the manner of performing the Work has been rendered safe. Contractor shall be responsible for
the security and care of the Facility as set forth in Section 2.13. Nothing in this Section 2.7 shall
affect Contractor's status as an independent contractor.
SECTION 2.8. Emergencies
In the event of any emergency endangering life or property, Contractor shall take
such action as may be reasonable and necessary to prevent, avoid or mitigate injury, damage, or
loss and shall, as soon as possible, report any such incidents, including Contractor's response
thereto, to Owner. If Contractor has not taken reasonable precautions for the safety of the public
or the protection of the Work, and such failure creates an emergency requiring immediate action,
then Owner, with or without advance notice to Contractor may, but shall be under no obligation
to, provide reasonable protection as required to address such emergency; provided, however, that
Owner shall in any event notify Contractor of any actions taken by Owner within ten (10) Business
Days of taking such action. All reasonable direct costs so incurred by Owner as a result of any
emergency caused by Contractor shall be reimbursed by Contractor.
SECTION 2.9. Approvals Certificates, Permits and Licenses
Contractor shall obtain all approvals, certificates, and licenses required to be in
Contractor's name to perform the Work and provide the Permits set forth in Exhibit F. Contractor
shall promptly, within such time period as may be agreed upon by the Parties, provide Owner with
reasonable assistance that Owner may require to secure the approvals, certificates, Permits and
licenses required to be in the name of Owner as set forth in Exhibit F.
SECTION 2.10. Taxes
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The Contract Price includes and Contractor shall be liable for and pay to the
applicable Governmental Authority all taxes and contributions for unemployment insurance,
benefits, withholding taxes, and similar benefits, as well as taxes measured by or imposed on the
net income of Contractor by Applicable Law or collective bargaining agreements with respect to
persons employed by Contractor for performance of the Work. Contractor shall indemnify
Owner from, all such taxes and contributions, including any interest accrued and penalties
imposed thereon.
On all invoices, Contractor shall separately show all sales, use, value added,
excises, assessments, charges, and other similar taxes imposed by any Governmental Authority on
the Work, or any part thereof, including but not limited to Contractor's purchase or sale of
equipment or other materials installed in, incorporated into, or affixed or attached to the Facility,
the Site, or the Work (collectively, "Owner Taxes").
Contractor shall reasonably cooperate with Owner to utilize appropriate nontaxable
transaction exemptions and certificates or similar certificates from other states (a
properlycompleted form of which shall be timely provided to Contractor by Owner), where
allowed by Applicable Law, to minimize such Owner Taxes. Charges not subject to Owner Taxes
shall be identified and no such Owner Taxes shall be charged to Owner thereon. In the event,
however, that despite the use of nontaxable transaction certificates or the identification by Owner
of charges not subject to Owner Taxes, such taxes are imposed by any Governmental Authority,
such taxes and any resulting interest, fines, penalties, audit costs, and defense costs shall be
invoiced to and reimbursed by Owner as set forth herein. Owner agrees to timely pay or reimburse
Contractor for the disputed taxes once they are assessed to avoid any further tax liabilities, interest,
penalties or fines against Contractor. Contractor shall provide sufficient detail, as requested by
Owner, as to document the Work which was subject to Owner Taxes which are invoiced to Owner.
Owner shall have the right to inspect and audit the records of Contractor with respect to such
invoiced amounts. In the event of an audit by any Governmental Authority with respect to such
taxes, Contractor shall provide reasonable cooperation to Owner to defend and document the
amount of such taxes paid on the Work. Owner qualifies for sales tax exemption pursuant to the
provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. In the
performance of its Work for Owner, Contractor may, by separate agreement, purchase materials
and supplies and rent or lease equipment sales tax free. In connection with any such transaction,
Owner would issue exemption certificates to Contractor in compliance with the State
Comptroller's ruling #95-0.07 and #95-0.09. SECTION 2.11. Hazardous Materials
Contractor shall design, construct, pre -commission, test and start-up the Facility
and otherwise perform the Work in compliance with the requirements of all Applicable Laws. If,
during the course of the performance of the Work, Contractor or any Subcontractor discovers, or
reasonably believes it has discovered in, on or under any part of the Site, any Hazardous Materials
(other than Hazardous Materials that Contractor or a Subcontractor has brought onto the Site,
produced, created or used), Contractor shall proceed in accordance with Section 13.4(c). Except
to the extent of Contractor's responsibility under Section 13.4(b), Owner shall be solely
responsible and liable for all liabilities arising from: (i) Hazardous Material existing at the Site as
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of the date of this Agreement, and (ii) all other Hazardous Material brought to, or produced at, the
Site by Owner, or others (other than Contractor or its Subcontractors) on or after the date of this
Agreement.
SECTION 2.12. Progress Meeting and Reports
Contractor shall hold a bi-weekly progress meeting during construction at the Site,
or at an alternate location mutually agreeable to Owner and Contractor, for the purpose of
reviewing the monthly progress report for the previous month with Owner. Contractor shall
provide Owner with monthly progress reports, the following other information relating to the
progress of the Work, and such other information as may be reasonably requested by Owner:
(a) Minutes for all meetings involving the Owner within four (4)
Business Days following such meeting;
(b) Weekly progress reports of construction activities;
(c) Incident reports within three (3) Business Days of the occurrence of
safety incidents, environmental incidents or incident involving damage to the
Facility (preliminary written notice is to be provided to Owner within eight (8) hours
of a such incidents; provided, however, that verbal notice of critical or fatal injuries
shall be provided to Owner within three (3) hours);
(d) Monthly construction milestone status reports and monthly progress
reports no later than the fifth (5th) Business Day of each month, which shall cover
activities up to the end of the previous month;
(e) Updates every month to the Facility CPM Schedule pursuant to
Section 3.2;
SECTION 2.13. Care, Custody and Control/Risk of Loss
Upon the issuance of a Final Notice to Proceed pursuant to Section 3.1, Contractor
shall have the full responsibility for care, custody and control and risk of loss of the Facility
including the Owner -Supplied Equipment upon transfer of risk of loss from the Owner. While
Contractor bears responsibility for care, custody and control and risk of loss of the Owner -Supplied
Equipment, Owner shall, with Contractor's cooperation, obtain any repair services or replacements
for the Owner -Supplied Equipment or otherwise from Owner or any service provider of Owner
including the allocation between Owner and Contractor of the responsibility for the costs thereof
in accordance with the terms of this Agreement. Care, custody and control and risk of loss of the
Facility shall transfer to Owner upon the earlier of (a) Substantial Completion (unless Owner
specifically elects in writing to accept care, custody and control of the Facility prior to Substantial
Completion) or (b) the date of termination of this Agreement pursuant to the provisions of Article
X. If Owner elects to take care custody and control of the Facility before Substantial Completion
is achieved, then Contractor may be entitled to a Change Order pursuant to the provisions of
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Article V; provided, however, that Contractor shall not be entitled to a Change Order if Owner
elects to take care, custody and control of the Facility prior to Substantial Completion but after the
Contract Completion Date and the resulting delay was not excusable under the Contract.
Notwithstanding anything to the contrary contained herein, if Owner takes possession or uses any
portion of the Work prior to Substantial Completion or termination of this Agreement as set forth
herein, such possession shall constitute acceptance of that portion of the Work and the risk of loss
for such Work passes to Owner at the time Owner takes possession of such portion of the Work.
Any such early Owner possession shall remain subject to the Warranty Period however, the period
of such 3 -year warranty shall begin at the time of early Owner possession. In connection with
Contractor's risk of loss obligation, Contractor shall be responsible for and obligated to replace,
repair, or reconstruct, and to furnish any material, equipment, or supplies furnished by Contractor
or Owner -Supplied Equipment (after transfer of risk of loss from the Owner upon delivery to the
Facility), which are lost, damaged, or destroyed prior to transfer of care, custody, and control of
the relevant portion of the Facility or the affected portion thereof to Owner.
SECTION 2.14. Interpretation
In the event of any inconsistencies between Applicable Laws and the Contract
Documents, Contractor shall comply with Applicable Laws. If Contractor finds a conflict, error,
omission, inconsistency or discrepancy in the Contract Documents, then Contractor shall notify
Owner before proceeding with the portion of the Work affected thereby.
SECTION 2.15. Operational Supervision
Prior to Substantial Completion, Contractor shall supervise Owner's relevant
operations and maintenance personnel; provided, however, that Owner shall be responsible for the
failure of its personnel to follow the reasonable direction of Contractor. Owner shall provide
competent substation technicians and electric operations personnel required for training and
commissioning assistance in a timely manner.
SECTION 2.16. Responsibility for Subcontractors
(a) Contractor may subcontract portions of the Work to any
Subcontractor without further approval by Owner except for any Major
Subcontracts, which for any Major Subcontractor not identified in Exhibit A are
subject to Owner's review and approval, which approval shall not be unreasonably
withheld or delayed. Contractor may have portions of the Work performed by its
Affiliates or their employees. Contractor shall be responsible for such Work
performed by a Subcontractor, Major Subcontractor or Affiliate and Owner will look
solely to Contractor as if the Work were performed by Contractor.
(b) The issuance of subcontracts shall not relieve Contractor of any of
its obligations under the Contract Documents, including, among other things, the
obligation to properly supervise and coordinate the work of Subcontractors. Work
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performed by Contractor's Affiliates shall be treated as if the Contractor had
performed the Work.
(c) Owner's approval of any proposed Major Subcontract shall not
constitute an approval of any portion of the Work or a waiver of any of Owner's
rights hereunder or reduce Contractor's responsibilities hereunder. Contractor shall
provide to Owner, on request, information concerning the status of the performance
under and any disputes under each Major Subcontract, including information
concerning specifications and cancellation terms.
(d) Notwithstanding any agreement with any Subcontractor(s),
Contractor shall be solely responsible for the Work. Contractor has complete and
sole responsibility as a principal for its agents and all others it hires to perform or
assist in performing the Work. Except as otherwise provided in this Agreement,
Owner shall not be deemed to have any contractual obligation to any Subcontractor
and nothing contained in any subcontract shall create a contractual relationship
between any Subcontractor and Owner.
SECTION 2.17. Key Personnel
Contractor shall appoint a Project Manager, a Construction Site Manager, and an
Engineering Manager (together the "Key Persomiel"), as set forth in Exhibit J. The Project
Manager shall have full responsibility and authority for the Work on behalf of Contractor and shall
act as Owner's primary point of contact with Contractor with respect to prosecution of the Work.
Contractor shall not change a Key Personnel position, or the person appointed to such position
without the prior written consent of Owner, which shall not be unreasonably withheld or delayed.
SECTION 2.18. Co-operation and Coordination
Upon prior reasonable notice by Owner, Contractor shall cooperate with, and grant
reasonable access to the Site to, any person whom Owner appoints in writing to provide services
with respect to the Facility, including, without limitation, any person, whether employed by Owner
or not, carrying out interface work in relation to the transmission and distribution systems,
SCADA systems, protection systems, fiber optics and communications systems and the water
supply and discharge system; provided, that Owner obtains agreement from such persons to
coordinate with Contractor's work activities, comply with Contractor's health and safety
requirements, Applicable Law and Prudent Utility Practices. Subsequent to Substantial
Completion (or, if care, custody and control of the Facility is transferred to Owner prior to
Substantial Completion), Owner and Contractor shall cooperate and coordinate so that
Contractor's activities with respect to the Facility do not interfere with the operation and
maintenance of the Facility and so that Owner's operation and maintenance of the Facility does
not interfere with Contractor's completion of the Work with respect to the Facility.
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SECTION 2.19. Start -Up, Commissioning and Testing
(a) Contractor shall perform all startup, commissioning and testing of the
Facility and shall coordinate energization of the Facility with Owner consistent with
Prudent Utility Practices. Contractor should be aware and, and take into
consideration, work will be occurring on both the transmission and distribution
systems during construction. Contractor must consider and take actions or make
proper notification to Owner if this work impacts the acceptance testing and must
work with Owner to facilitate transmission and distribution construction and timely
acceptance testing.
SECTION 2.20. Owner -Supplied Equipment
(a) Care, Custody and Control. From the date that Contractor
removes the Owner -Supplied Equipment from Owner's premises (the "Delivery
Point") Contractor shall have care, custody and control of such Owner -Supplied
Equipment until transferred to Owner as part of the Facility pursuant to Section 2.13.
The Parties agree to develop a mutually agreeable inspection procedure of the
Owner -Supplied Equipment upon receipt at the Delivery Point.
(b) Separate Undertaking. Subject to the other provisions of this
Agreement, Contractor shall not be responsible for providing or furnishing the
Owner -Supplied Equipment, and Owner shall provide or cause the Owner -Supplied
Equipment to be provided or furnished. Contractor shall be responsible for
receiving, handling, installing, testing and other tasks with respect to incorporating
the OwnerSupplied Equipment into the Facility, as set forth in Exhibit A. The
OwnerSupplied Equipment shall be made available to Contractor at the Delivery
Point.
(c) Administration of Owner -Supplied Equipment. Contractor
shall conduct receiving inspection at the Delivery Point and shall be responsible for
loading, shipping, unloading and storage of Owner -Supplied Equipment at the
Facility. Contractor shall be responsible for installation of the Owner -Supplied
Equipment in accordance with the Contract Documents. Notwithstanding any of the
foregoing, Contractor shall not be liable to pay the Owner for any Owner -Supplied
Equipment, this being the sole responsibility of Owner.
(d) Notwithstanding the foregoing, Contractor's authority in connection
with Contractor's administration of the Owner -Supplied Equipment shall be limited
such that Contractor shall neither do nor undertake to do any of the following without
Owner's prior written consent in each case:
(i) amend or modify the Owner -Supplied Equipment; or
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(ii) bring or commence any lawsuit, arbitration or other action in
Owner's name or otherwise to enforce any of the Owner -Supplied Equipment;
or
SECTION 2.21. Owner Obligations
(a) Site. As set forth in Exhibit A, Owner shall make the Site available
to Contractor to support the project schedule, which, as of the Effective Date, reflects
a plan to mobilize Contractor's activities on the Site on June 1, 2022.
(b) O►vner-Supplied Equipment. No later than the date of the Final
Notice to Proceed, Owner shall make available to Contractor the Owner -Supplied
Equipment
(c) Operations Personnel. Owner shall provide, at its cost, a
complement, consistent with normal staffing levels for the Facility of appropriately
qualified, competent, and, where necessary, substation technicians when required by
Contractor to support the commissioning, initial operation of the Facility and all
Performance Tests.
(d) Construction Power — Contractor shall arrange for and be
responsible for all costs associated with installation, consumption, and removal of
any required construction power.
(e) Scheduling of Commissioning and Testing. Contractor shall
comply with the schedule developed by the Parties prior to the date for such delivery
set out in the Project Milestone. Any delays may be cause for extended time and cost
under Article V.
(f) Licenses and Permits. Contractor shall obtain any approvals,
certificates, Permits and other licenses required to be obtained and held in its name
for the Facility and as set forth in Exhibit F, Owner shall be responsible for all
water and sewer impact fees payable to the City of Denton. Contractor's project
schedule shall incorporate any schedule requirements associated with invoicing and
payment of such impact fees and Owner shall not be responsible for any delays
incurred by Contractor due to payment of such impact fees.
(g) Property Taxes. The Owner is a Texas home -rule municipality and
as such is generally exempt from ad valorem property taxation under Texas law.
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Contractor shall confirm that the Owner is exempt before paying ad valorem taxes
for that may not be lawfully charged to the Owner.
(h) Drawings and Specifications. Owner shall provide Contractor
with access to and the right to use all drawings and specifications, if any, prepared
for the Owner -Supplied Equipment, that are necessary for Contractor's performance
of the Work.
(i) Subsurface Conditions. To the extent that actual subsurface
conditions are substantially different from those identified in the geotechnical study
set forth in Contractor's proposal and adversely affect the Work, as notified to
Owner by Contractor, Contractor shall be entitled to a Change Order pursuant to
Article V and Owner shall then perform, at its cost and upon Contractor's written
request, an additional geotechnical analysis. For the avoidance of doubt, if
Contractor alleges substantially different subsurface conditions are present,
Contractor shall immediately contact Owner or Owner's Representative to obtain
consent, such consent shall not be unreasonably withheld, that soil or other
subsurface conditions are substantially different before claiming any Change Order
pursuant to Article V. Project schedule delays will not be considered excusable due
to substantially different soil conditions except for contaminated soil due to
unknown hazardous materials not disclosed in any geotechnical study.
SECTION 2.22. Commercial Activities
Contractor shall not, and shall ensure that any Subcontractors do not, engage in any
commercial activity or permit any third parties, under the Contractor's control, to establish
commercial activities on the Site that are unrelated to the performance of the Work. Contractor
shall not allow its employees to engage in any commercial activity on the Site other than the
performance of the Work.
ARTICLE III
CONSTRUCTION SCHEDULE AND COST
SECTION 3.1. Commencement of the Work and Contract Completion Date
(a) Upon delivery of the initial notice to proceed (the "Initia.l Notice to
Proceed") and Owner's payment to Contractor of the initial Milestone Payment,
Contractor shall diligently prosecute only the limited Work set forth in Exhibit M
associated with such initial Milestone Payment. Contractor shall diligently
prosecute the rest of the Work on an unrestricted basis in accordance with the
Contract Documents upon Owner's issuance of a Final Notice to Proceed. Owner
anticipates that the Final Notice to Proceed will be issued on or about May 1, 2022
and if such anticipated date is a later date, then Owner shall provide Contractor with
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ten (10) Business Days' notice of the anticipated issuance of the Final Notice to
Proceed. Contractor acknowledges and agrees that all amounts payable or to be
paid by Owner under or in connection with this Agreement, other than the initial
Milestone Payment, are in all respects subject to and conditioned upon the relevant
governmental budget appropriation of sufficient funding to pay for the Facility
(including the Owner's costs and obligations arising under the Contract Documents),
Until a Final Notice to Proceed is issued, Contractor shall not perform any Work not
associated with the initial Payment Milestone as described in Exbibit M and shall
not be entitled to any payment other than the initial Milestone Payment. If the Final
Notice to Proceed is received later than April 1, 2022 then Contractor shall be
entitled to seek a Change Order in accordance with Article V to account for cost and
schedule impacts. If the Agreement is so terminated, Contractor shall deliver to
Owner promptly any documentation with respect to preliminary design and
engineering Work performed in connection with the initial Payment Milestone
promptly after such termination without representation or warranty as to usability,
completeness or accuracy.
SECTION 3.2. Project Milestone Schedule and Facility CPM Schedule
(a) Following receipt of the Final Notice to Proceed, Contractor shall
perform the Work continuously and with due diligence in accordance with the
Project Milestone Schedule, as may be adjusted from time to time in accordance
with this Agreement, so that each Project Milestone is timely achieved and so that
Substantial Completion will be achieved by the Contract Completion Date.
(b) Within thirty (30) days after the issuance of an Initial Notice to
Proceed, Contractor shall submit for Owner's review and approval a "Level II"
schedule, in both electronic and hardcopy form, which shall use Microsoft Project,
conform to the Project Milestone Schedule, and identify the critical path for the
Work. Within ninety (90) days after the issuance of an Initial Notice to Proceed,
Contractor shall submit for Owner's review and approval a "Level III" critical path
method schedule (the "Facility CPM: Schedule"), in both electronic and hardcopy
form, which shall use Microsoft Project, conform to the Project Milestone Schedule,
and set forth the timing of all elements of the Work and the interrelationship of such
elements. The Facility CPM Schedule shall describe comprehensively, and in a form
and to the level of detail agreed to by Owner, the activities required to complete the
Work. The Facility CPM Schedule shall be a resource -loaded, integrated project
schedule that includes all significant activities divided into specific, identifiable
tasks according to their importance, together with a critical path schedule. The
Facility CPM Schedule shall highlight selected activities by time period and type of
activity showing the sequence in which Contractor proposes to perform the Work
and the date by which Contractor reasonably requires that Owner shall have fulfilled
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its obligations under this Agreement and Contractor intends to rely upon the Facility
CPM Schedule in connection therewith. Contractor shall not change the dates set
forth in the Facility CPM Schedule for Owner's obligations unless approved by
Owner.
(c) The Facility CPM Schedule shall be periodically (but at least
monthly) updated and delivered to Owner, in both electronic and hard copy form,
with the monthly progress report. Contractor shall provide an explanation of any
expected delay in achieving a Project Milestone designated in Exhibit M by the date
therefor in the Project Milestone Schedule and Contractor's plan (in a level of detail
reasonably requested by Owner) to remedy such delay as necessary to achieve
Substantial Completion by the Contract Completion Date and any additional costs
associated with such plan. If at any time the Facility CPM Schedule shows that any
Project Milestone (including Substantial Completion) will not be achieved within
fifteen (15) days of such Project Milestone (and the Contract Completion Date with
respect to Substantial Completion), Contractor shall advise Owner and submit to
Owner for its review, a recovery plan that demonstrates Contractor's commercially
reasonable efforts to recover lost time or, if the delay cannot be recovered using
commercially reasonable efforts, provide a plan to mitigate further delays (a
"Corrective Action Plan"). Upon receipt of Owner's approval (which shall not
constitute or require a waiver of any right of Owner to Delay Damages or to declare
or exercise remedies for any Contractor Default hereunder), which shall not be
unreasonably withheld, Contractor shall implement such Corrective Action Plan as
approved. The submission of a schedule under this Section 3.2 shall not, without a
Change Order, change any contractual guarantee dates.
SECTION 3.3. Delays
Without limiting the obligations of Contractor set forth in Sections 3.2(b) and
3.2.(c), Contractor shall promptly notify Owner in writing of any actual or anticipated event that is
delaying or could delay completion of the Facility in accordance with the Contract Completion
Date. Contractor shall indicate the expected duration and anticipated effect of the delay, and the
action being taken to correct the problem and make up for lost time. Subject to receipt of the
appropriate Change Order for delays not caused by Contractor, Contractor shall take all steps
reasonably available to Contractor to mitigate any impacts to the Contract Completion Date.
ARTICLE IV
COMPENSATION
SECTION 4.1. Compensation
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Owner shall pay Contractor, as full compensation and consideration for
Contractor's complete and timely performance of the Work and its other obligations hereunder,
the fixed, turnkey lump sum Contract Price, subject only to adjustments by Change Order under
the terms of this Agreement. Contract Price includes all Work, including equipment, materials,
supplies, labor, intellectual property rights, transportation, and services to be provided by
Contractor hereunder and all remedial work to be performed with respect to Contractor's
warranties under Article VI or as otherwise required under the Contract Documents. SECTION
4.2. Other Payments
In addition to, but not as part of, the Contract Price, Owner shall pay to Contractor:
(a) payments with respect to any Owner Taxes pursuant to Section 2.10;
(b) reimbursements to Contractor pursuant to Section 5.3(c);
(c) the costs of any termination or suspension pursuant to Article X;
(d) any payments due to Contractor pursuant to Article XII; and
(e) any other amounts due to Contractor under the terms of this
Agreement.
SECTION 4.3. Monthly Billing
(a) Subject to the terms of this Agreement, each month Owner shall
make progress payments to Contractor in accordance with the Milestone Payment
Schedule (Exhibit G) with respect to progress completed in accordance with the
Facility CPM Schedule in the prior month and properly invoiced by Contractor to
Owner hereunder, subject to Owner's right to retain payment pursuant to Section.
4.7 or withhold amounts pursuant to Section 4.3(b). All payments shall be made by
wire transfer to a bank account of which due notice shall have been given to Owner
by Contractor. Payments as set out in the Milestone Payment Schedule for Work
properly invoiced and encompassed within the progress invoice submitted pursuant
to Section 4.4 below shall be due and payable on the last day of the month in which
such progress invoice was received; provided, however, that Owner's obligation to
make payment shall be a minimum of 30 Business Days after the date of such invoice
and shall be extended on a day -for -day basis for any failure by Contractor to submit
its progress invoice on a timely basis in accordance with Section 4.4. Invoices shall
be sent directly to the address of Owner set forth in Article VII but to the attention
o£ City of Denton Accounts Payable Department, with a copy to Denton Municipal
Electric at the street and email address set forth in Article VII. Invoices must
specifically reference this Agreement and Owner's Purchase Order Number.
(b) Payments to be made by Owner to Contractor shall be subject to
withholding on the following basis:
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(i) Owner withholds monies otherwise due by way of a refund of any
earlier overpayments by Owner not in dispute by Contractor;
(ii) Any Delay Damages not in dispute that are due and payable by
Contractor to Owner;
(iii) Work not in accordance with the requirements of the Contract
Documents;
(iv) Claims filed against Owner, the Facility or the Site arising from
Contractor's actions or inactions in connection with the performance of the Work,
other than claims for which Liens have been filed against Owner, the Facility or the
Site that Contractor has fully bonded;
(v) Damages to Owner not covered by insurance as a result of
Contractor's failure to comply with the Contract Documents for which Contractor
is required to indemnify Owner pursuant to the Contract Documents; and
(vi) Where Owner has made demand in respect of any other monies
which are due and payable to Owner in accordance with the terms of the Agreement
which are not being disputed in good faith by Contractor; provided, Contractor has
thereafter failed to make such payment.
(c) In the event Owner disputes any invoiced item, including the
completion of Work for which payment is sought, Owner shall give
Contractor written notice of such disputed item within ten (10) Business
Days after receipt of the invoice. Owner may withhold the related portion
of the payment from its payment of the progress invoice. If Contractor
disputes such withholding, such dispute shall be resolved pursuant to
Article XI, "Dispute Resolution"; provided, however, the Parties shall use
their reasonable efforts to resolve any such dispute within twenty (20) days
of the due date for Owner's payment of the related progress invoice. To the
extent such dispute resolution determines that a Party improperly withheld
payment owed to the other Party, the Party which improperly withheld
payment shall make such payment to the other Party, with interest accruing
from the original due date for such payment at the maximum rate required
by Sec. 2251.025 of the Texas Government Code (Prompt Payment Act).
(d) To the extent Contractor fails to deliver the monthly progress
report as outlined in Exhibit I, Owner's obligation to make payment shall
be extended on a day -for -day basis.
(e) Contractor shall continue to perform the Work
notwithstanding a withholding or set off by Owner or a dispute over
amounts due.
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SECTION 4.4. Contents of Progress Invoices
Contractor shall submit its monthly progress invoice no later than the fifth (5th) day
of each month. Each progress invoice shall set forth the amount from the Payment Schedule, the
accumulated payments of the Contract Price to date, the applicable Owner Taxes under Section,
2.10, and any other entitlement to payment or reimbursement claimed by Contractor under this
Agreement (including an explanation thereof). Each progress invoice shall be supported by (i)
Contractor's partial waiver of mechanic's liens and all other actual or potential encumbrances and
rights of recovery against Owner for work that has been completed and payment received by
Contractor in the form attached hereto as Exhibit C-1 and (ii) partial lien waivers in the form
attached hereto as Exhibit C-1 from all Major Subcontractors.
SECTION 4.5. Final Payment; Liens
The final payment of the Contract Price set forth in the Payment Schedule in
Exhibit G shall be made only upon the accomplishment of the following:
(a) Contractor shall complete all Work (other than any Work under
Sections 6.1 and 6.2 to the extent the Warranty Period applicable thereto extends
beyond the date of the final payment), including Punch List Work; and
(b) Contractor shall execute and deliver to Owner Contractor's final
waiver of liens in the form attached hereto as Exhibit C-2 and final waivers of liens
(in the form attached hereto as Exhibit C-2) executed by all Major Subcontractors.
Contractor shall indemnify, defend and save Owner harmless from all
laborers', materialmen's, and mechanic's liens arising out of the Work and from all
reasonable attorneys' fees relating thereto incurred by Owner so long as Owner has paid
Contractor all undisputed amounts required by this Agreement.
SECTION 4.6. Effect of Payment
No payment, final or otherwise by Owner, shall be considered or deemed to
represent that Owner or Owner's Representative or any other representative of Owner has
inspected the Work, nor shall it constitute or be deemed an acceptance, in whole or in part, of any
portion of the Work not, or subsequently determined not to be, in accordance with the Contract
Documents.
SECTION 4.7. Security of Performance
(a) Owner shall retain and withhold payment of ten percent (10%) of all
payments
due to be made to Contractor (the "Retainage"). Such amount shall be held by Owner. Retainage
shall be released by Owner upon its receipt of corresponding Performance Security satisfying the
requirements of this Section. Except as provided in the immediately preceding sentence, Owner
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shall release the Retainage or, if applicable, the Performance Security, returning it to Contractor
upon Substantial Completion; provided, however, that notwithstanding such a release of Retainage
or the Performance Security, Owner will retain Retainage or Performance Security equal to 200%
of the Punch List value until Final Completion.
(b) In order to secure Contractor's performance obligations under this
Agreement, Contractor shall within ten (10) days after receipt of the Final Notice to Proceed deliver
to Owner a payment maintenance and performance bond in substantially the form set forth in
Exhibit H and otherwise in form and substance compliant with the Law of the State of Texas for
such bonds for projects similar to the Facility, duly issued by a reputable national underwriter
reasonably acceptable to Owner (collectively, the "Contractor Payment, Maintenance &
Performance Bond").
SECTION 4.8. Wire Transfer Instructions
Owner shall make all payments due Contractor via wire transfer to Contractor's
account as follows:
Bank:
Capital One, N.A.
ABA:
065000090
Account:
Checking
Name:
Crest Operations, LLC
Address:
201 St. Charles Ave., 29th Floor, New Orleans, LA 70170
Reference:
ARTICLE V
CHANGES IN THE WORK
SECTION 5.1. Change Order
Change Orders may be initiated by either Owner or Contractor in accordance with
this Article V. The Work, Contract Price, Contract Completion Date and any other obligation
under this Agreement shall only be adjusted as allowed under this Agreement and any adjustment
shall be documented by a Change Order. It is the desire of the Parties to keep changes in the Work
and the Contract Completion Date at a minimum, but the Parties recognize that such changes may
become necessary and agree that they shall be handled as follows.
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SECTION 5.2. Individuals Authorized to Make Changes
All Change Orders must be approved and signed on behalf of Owner by Owner's
Representative. Contractor's Project Manager may approve and sign any Change Order on behalf
of Contractor.
SECTION 5.3. Change Orders
(a) To the extent that Contractor notifies Owner, within twenty (20)
days of Contractor becoming aware of the impact of the relevant circumstances, and
demonstrates that a Change (as defined in Section 5.3(b) below) (i) adversely affects
Contractor's (or its Subcontractor's) ability to perform the Work, (ii) increases the
cost of the Work or its other obligations under this Agreement, or (iii) causes a delay
in the Project Milestone Schedule, the Target Substantial Completion Date or the
Contract Completion Date or adversely impacts Contractor's critical path schedule,
Contractor shall be entitled to claim an equitable and appropriate adjustment to the
Contract Price, Contract Completion Date and any other affected obligation under
this Agreement pursuant to a Change Order. Within a reasonable period of time
after the Notice required by this section, but in no event later than thirty (30) days
after such Notice, Contractor shall provide Owner with the information and other
documentation then known to Contractor substantiating such claim. Contractor shall
periodically update Owner with additional information as it becomes available until
the claim is resolved. Failure of Contractor to provide the initial Notice of such
claim within such twenty (20) day period shall constitute a waiver of any effect of
such claimed Change and the right to request a Change Order therefor. If any
Change affects Contractor's ability to achieve Substantial Completion by the
Contract Completion Date, Contractor shall at Owner's request prepare a draft
Change Order that, to the extent practical, does not adjust the Contract Completion
Date, but compensates Contractor, as the case may be, for the effect of such Change
by adjusting other milestones in the Project Milestone Schedule or other provisions
of this Agreement pursuant to a Change Order. Adjustments to any price or
scheduled date shall reflect only the reasonable and necessary impact of such
Change. Within seven (7) days of receipt of all such information from Contractor,
Owner and Contractor shall meet and, acting reasonably and in good faith, negotiate
a mutually acceptable Change Order in accordance with the principles set forth
herein. Contactor shall not, and shall not be obligated to proceed with, any changes
or extra work until the price of such change or extra work and its effect has been
agreed upon in writing with Owner in a Change Order. Upon mutual approval of
such Change Order, Contractor shall diligently perform the changes contemplated
by such Change Order in accordance with the Contract Documents. Contractor shall
not suspend, in whole or in part, performance of the undisputed Work during any
dispute over the scope of the Work or during the review and negotiation of any
proposed Change Order unless directed in writing to do so by Owner, and if so
directed, Contractor shall do so without waiving any right with respect to such
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change or disputed item. During the deliberations as to the Change Order specified
herein, Contractor shall diligently pursue completion of the Facility using
commercially reasonable efforts.
(b) Contractor shall be entitled in accordance with and subject to the
other provisions of this Section to an equitable and appropriate adjustment to the
Contract Price, Contract Completion Date and any other affected obligation under
this Agreement pursuant to a Change Order in any of the following events: (1)
Owner -directed changes (including suspensions or stoppages of the Work not due to
the fault of Contractor), including those caused by Owner's contractors other than
Contractor or its Subcontractors, or by any third party not under control of
Contractor; (2) the occurrence of an event of Force Majeure; (3) an act or omission
of Owner in breach of its obligations under this Agreement (including an act or
omission of Owner caused by Owner's contractors other than Contractor or any
Subcontractor, or by any third parry not under control of Contractor); (4) any Change
In Law; (5) differing site conditions under Section 8.1; (6) increases and/or
decreases of greater than five percent (+/-5%) in the Reference Price for each
commodity (Steel, Copper and PVC Resin) purchased by Contractor to complete the
Work ("Commodity Price Change Orders"); and (7) as otherwise provided in this
Agreement (each of the foregoing being a "Change" for purposes of this Contract).
(c) Owner may initiate a change by advising Contractor in writing of
the change believed to be necessary or desirable. As soon as practicable, Contractor
shall prepare and forward to Owner a cost estimate and a schedule impact of the
change, which shall include any applicable adjustment to the Contract Price,
Contract Completion Date and any effect on Contractor's ability to comply with any
of its obligations under this Agreement, including warranties. Contractor shall also
consider any potential adjustments to the Work or the Project Milestone Schedule
that may be undertaken to mitigate the effects of the change. Contractor shall be
reimbursed for the reasonable costs incurred to prepare any estimate.
Reimbursement shall be at the rates specified by Contractor consistent with Exhibit
N. Owner shall advise Contractor in writing of its approval or disapproval of the
change. If Owner approves the change, Contractor shall perform the Work as
changed.
(d) With respect to any such Change Order to adjust the Contract
Completion Date, the Parties agree that such adjustment shall preserve the period of
time between Contractor's "Target Substantial Completion Date" (which date shall
be identified in the Project Milestone Schedule and updated from time to time as part
of the Facility CPM Schedule to be provided by Contractor pursuant to Section 3.2)
and the Contract Completion Date that would have existed absent the event giving
rise to the Change Order other than any portion of such period of time between
Contractor's "Target Substantial Completion Date" and the Contract Completion
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Date that is solely attributable to the actions of Owner in the performance of its
obligations hereunder to preserve or extend such period of time.
SECTION 5.4. If No Agreement
If in connection with this Article V either Owner or Contractor disputes the
existence, extent, validity of a Change or is unable to reach agreement on the terms of any Change
in the Work, including, but not limited to, an adjustment in the Contract Price or Contract
Completion Date, then either Party may notify the other Party that it desires to meet and resolve
the dispute in accordance with Article XI. If the disputed portion of the proposed change to the
Contract Price is less than $100,000, Contractor shall proceed with the Work described in the
disputed Change Order pending resolution of the dispute. If such disputed portion is equal to or
greater than $100,000, Contractor shall proceed with the associated work on a time and materials
basis which time and materials payments to Contractor shall be subject to adjustment upon the
resolution of the dispute. Under no circumstances, however, shall Contractor delay its performance
of the Work because of an inability to agree on the terms of a Change Order.
ARTICLE VI
INSPECTION AND WARRANTY
SECTION 6.1. Warran
(a) Contractor warrants (i) it will at all times be fully qualified and
capable of performing the Work to complete the Facility according to the terms of
this Agreement, (ii) it will perform the Work (other than the portions of the Work
described in Section. 6.2), in accordance with Prudent Utility Practice and in
accordance with Applicable Law, Exhibit A and as otherwise specified in this
Agreement, and that such Work shall be free of Liens (to the extent Owner is
compliant with its undisputed payment obligations hereunder) or defects in title and
free from any defect in workmanship performed by Contractor and its
Subcontractors, and (iii) the materials and equipment provided under this Agreement
shall be new, unused, undamaged and comply with Exhibit A and the Contract
Documents. If Contractor fails to meet the standards set forth in this Section and
Owner gives Contractor notice of any such failure or defect as promptly as
practicable after discovery of such failure, but in no event later than the expiration
of the Warranty Period, Contractor shall remedy such deficiency so that such Work
conforms to those standards. Contractor's costs for such remedy shall be borne
solely by Contractor. Contractor's obligation to correct defects and deficiencies
shall include labor, parts, transportation, insurance, factory repair and testing,
dismantling, re -erecting, re -testing and commissioning.
(b) Contractor shall, for the protection of Owner, use commercially
reasonable efforts to obtain from all Subcontractors from which Contractor procures
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machinery, equipment or materials or Work, warranties and guarantees with respect
to such machinery, equipment, materials or Work consistent with the foregoing,
except warranties for machinery and equipment from any original equipment
manufacturer ("OEM"), which shall be as specified by such OEM's standard terms,
which shall be made available to Owner to the full extent of the terms thereof,
provided, however, that the inability of Contractor to obtain such warranties or
guarantees shall not limit or reduce Contractor's obligations under this Agreement.
Unless otherwise specified in the Contract Documents or as otherwise agreed by
Owner, all materials and equipment so procured by Contractor shall be new, and
both workmanship and material shall comply with the specifications and
requirements set forth by the Contract Documents. Equipment and material which
are procured by Contractor, but fail to comply with the requirements of the Contract
Documents, shall be removed and replaced with complying equipment and material.
However, if the progress of Work is such to make such removal impractical, Owner
shall have the right to accept equipment or material and reduce the Contract Price
by an amount equivalent to any recovery from the relevant Subcontractor for the
difference in its value and the value of complying equipment or material. Contractor
shall perform such factory or field tests as are necessary to verify that equipment
meets the requirements of the Contract Documents. Contractor shall provide Owner
with reasonable notice of such tests and Owner shall be permitted to witness such
tests. All Subcontractors', manufacturers', and suppliers' warranties and guaranties,
express or implied, respecting any part of the Work and any materials used therein
shall be deemed obtained by Contractor for the benefit of Owner without the
necessity of separate transfer or assignment thereof. Contractor shall assign such
warranties and guaranties to Owner upon the end of the Warranty Period.
(c) All Work repaired or replaced during the Warranty Period shall be
rewarranted for an additional three years from the date of completion of the repair
or replacement; provided, however, in all cases the Warranty Period shall expire
four years following Substantial Completion of the original Work.
(d) If requested by Owner, Contractor will assist Owner in obtaining
and administering any other warranties with respect to the Owner -Supplied
Equipment and such request shall be treated as an Owner -directed change under
Article V.
SECTION 6.2. Engineering and Design Warranty
Contractor warrants it will cause to be performed the engineering and design
Services, as more particularly described in Exhibit A (the "Engineering Services") in accordance
with Prudent Utility Practice and otherwise in compliance with Exhibit A and the Work will be
free from errors or omissions in engineering and design (the "Design Warranty"). Contractor shall
provide a State of Texas professional engineering stamp on all drawings and designs. If within the
Warranty Period it is shown that there is an error in the Engineering Services or a breach of the
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Design Warranty as a result of a failure of Contractor or Contractor's engineering Subcontractor
to meet those standards and Owner has notified Contractor in writing of any such error within thirty
(30) days after the expiration of that period, Contractor promptly shall investigate and determine
the cause of the deficiency or defect, promptly correct or cause to be corrected any deficient design
that resulted therefrom, promptly issue corrected final as -built drawings, if applicable, and
promptly replace or cause to be replaced all equipment and materials associated with the defective
design and re -perform all other work necessary to cure the breach of the Design Warranty. All
costs incurred by Contractor in performing such corrective services shall be borne solely by
Contractor.
SECTION 6.3. Inspection and Testing
(a) All Work shall be subject to reasonable inspection by Owner, or its
representatives or consultants, at all times to determine whether or not the Work
conforms to the Contract Documents. Contractor shall provide Owner access to the
Work wherever located. Owner may visit and inspect the Work, or any part thereof,
at any time during normal business hours, and Contractor shall provide safe and
proper access for inspection of the Work. Owner may be present at any test to be
performed. Contractor shall promptly furnish all reasonable facilities, labor, and
materials necessary for the safe and convenient inspection and testing that may be
required by Owner. All inspections and tests by Owner shall be performed in such
manner as not to unnecessarily interfere, hinder or delay the Work. All such tests
and inspections shall not relieve Contractor of its obligations.
(b) If Contractor fails to provide Owner with reasonable opportunity to
inspect the Work, and if in the opinion of Owner it is necessary to uncover or
dismantle such Work for such inspection, then Contractor shall uncover, dismantle
and recover the Work as necessary for such inspection. If such inspection reveals a
defect or deficiency in the Work, Contractor's cost of uncovering, dismantling and
recovering the Work shall be borne solely by Contractor. If such inspection does
not reveal a defect or deficiency in the Work, Contractor shall be entitled to a Change
Order pursuant to the terms of Section 5.3(c) for the impact to Contractor of
uncovering, dismantling and recovering the Work and to the extent of any effect on
Contractor's ability to comply with its obligations under this Agreement.
(c) Where Owner has a reasonable belief that there is a defect or
deficiency, even though Contractor has given Owner reasonable opportunity to
inspect the Work and Owner subsequently requires uncovering, having made no
comment during the original inspection, Contractor shall nevertheless uncover,
dismantle and recover the Work as necessary for such inspection. If such inspection
reveals a defect or deficiency in the Work, Contractor's cost of uncovering,
dismantling and recovering the Work shall be borne solely by Contractor. If such
inspection does not reveal a defect or deficiency in the Work, Contractor shall be
entitled to a Change Order pursuant to the terms of Section 5.3(c) for the cost(s) and
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impact to Contractor of uncovering, dismantling and recovering the Work and to the
extent of any effect on Contractor's ability to comply with its obligations under this
Agreement.
SECTION 6.4. Correction of Defects
If Contractor does not take action to correct any defects or deficiencies for which it
is responsible under the Contract Documents within a reasonable time after receipt of Owner's
written notice thereof, Owner may, as its sole option, (a) take such corrective action itself or
through contract with others the costs of which shall be reimbursed by Contractor; (b) deduct an
equitable amount from the Contract Price pursuant to a Change Order for defects or deficiencies
in the Work in lieu of correcting Work that was not performed in accordance with the Contract
Documents; or (c) exercise any other remedy available under this Agreement, including requiring
Contractor to perform the corrective action if the relief under sub -clause (a) or (b) is not practicable.
SECTION 6.5. Limitations
The obligations contained in this Article VI govern and supersede any other terms
in this Agreement which address warranties, guarantees, or the quality of the Work and are
Contractor's sole warranty and guarantee obligations and Owner's exclusive remedies with respect
to defects and deficiencies in the Work. Contractor makes no other warranties or guarantees,
express or implied, including, but not limited to, warranties of merchantability and fitness for a
particular purpose which are expressly disclaimed and waived. Contractor shall have no warranty
obligation or liability for defects in the Work caused by normal wear and tear, Owner's improper
operation or maintenance of the Facility, alterations that are not in compliance with the guidelines
of the original equipment manufacturer, and any event of Force Majeure.
SECTION 6.6. Title
(a) Contractor shall include, as a term of each Subcontract, a warranty that
all materials and equipment furnished by its Subcontractors that become part of the
Facility or are purchased by Contractor for Owner for the operation, maintenance or
repair thereof shall be legally and beneficially owned by the Owner free from any
Lien and any defects in title whatsoever, without regard to any expiration of the
Warranty Period. Title to all such materials and equipment shall pass to Owner upon
delivery to the Site. Notwithstanding passage of title, Contractor shall retain sole
care, custody and control of, and retain risk of loss for, such materials and equipment
and shall exercise due care with respect thereto in accordance with Section 2.13. (b)
In order to protect Owner's interest in all materials and equipment with respect to
which title has passed to Owner but which remain in the possession of a third party,
Contractor shall follow the directions of Owner with respect to the action to be taken
by Contractor to maintain Owner's clear title and to protect Owner against claims
by other parties with respect thereto, and the costs incurred by Contractor in curing
any defect in title shall be borne solely by Contractor; provided, however, Contractor
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shall be entitled to a Change Order pursuant to the terms of Section 5.3(c) for any
costs incurred by Contractor at the direction of Owner to protect Owner's title,
including, for example, the filing of financing statements.
(c) To the extent Owner is compliant with its undisputed payment
obligations hereunder, Contractor agrees that it shall not establish, and shall not
allow its employees, agents or Subcontractors to maintain, any contractor's or
laborer's Lien on the Work or the Facility or any part thereof.
(d) Contractor shall not file or permit any Liens on the Work or the
Facility; provided, however, that this clause shall not prohibit Contractor from taking
any action allowed under Applicable Law to secure amounts due from Owner under
this Agreement. Contractor shall follow the directions of Owner with respect to the
action to be taken by Contractor regarding any mechanics' or materialmen's Liens
arising from the Work and Contractor shall, if ordered by Owner, as soon as practical
discharge or file a bond naming Owner as sole beneficiary in lieu of any Lien filed
by any Subcontractor against the Facility based on a claim for payment in connection
with the Work, and the costs incurred by Contractor in so doing be borne solely by
Contractor.
(e) Contractor shall provide prompt notice to Owner of any Lien of
which it receives notice.
(f) In the event Contractor fails to discharge or bond over any such
encumbrance within a reasonable period or otherwise provide Owner with adequate
assurances or security with regard to any such Lien arising in respect of the Work or
the Facility, Owner shall have the right to discharge the same and Contractor shall
reimburse Owner for the costs incurred to obtain such discharge.
ARTICLE V) I
REPRESENTATIVES AND NOTICES
SECTION 7.1. Owner's Representative
Owner annoints the followingLy individual as its "Owner's Representative":
Name:
Mark Zimmerer
Address:
Denton Municipal Electric
1685 Spencer Road
Denton, TX 76205
E-mail:
I mark.zimmerer@cityofdenton.com
Phone:
940-349-7169
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The Owner's Representative shall be authorized to act on behalf of Owner, with whom Contractor
may consult at all reasonable times, and whose instructions, requests, and decisions shall be
binding upon Owner as to all matters pertaining to this Agreement and the performance of the
Parties hereunder. Without limiting the foregoing, the responsibilities of Owner's Representative
shall encompass but not be limited to (1) issuance of instructions, (2) review and inspection of
Contractor's Work, (3) rejection of nonconforming Work, (4) determination of when the Work is
complete, (5) approval of milestone payments, and (6) approval of certain Change Orders as set
forth in Article V "Changes in the Work". All communications from Contractor to Owner shall
be directed to Owner's Representative and all communications from Owner to Contractor shall be
directed from the Owner's Representative. Owner may appoint another person as Owner's
Representative at any time by written notice to Contractor from the current Owner's
Representative. Only the Owner's Representative may provide binding direction to the Contractor.
SECTION 7.2. Contractor's Project Manager
Contractor shall appoint, subject to the approval of Owner (which shall not be
withheld unreasonably) an individual as its "Project Manager" in charge of Contractor's
performance and execution of the Work. Contractor shall provide Owner with the Project
Manager's address, e-mail address, telephone number, cell phone number and facsimile number.
All instructions, requests for Change Orders and all other communications from Owner to the
Contractor shall be directed to the Project Manager.
Name:
Dane Anderson
Address:
4725 Highway 28E Pineville,
LA 71360
E-mail:
Dane.anderson@betaengineering.com
Phone:
847.494.6609
SECTION 7.3. Notices
Except as expressly provided otherwise herein, any formal notice, demand, or
request provided for in the Contract Documents shall be in writing and shall be effective upon
delivery (electronic transmission to the e-mail address specified above may be done in addition to
delivery of a paper copy). Copies of Notices from Owner to Contractor shall also be provided to
Contractor's Project Manager.
w un a copy to:
Name: Crest Operations, LLC
Address: Crest Operations, LLC
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SECTION 7.4. Changes
Each Party shall provide the other Parry with notice when its respective address,
contact person, telephone number, e-mail address, or facsimile number changes to which notices
are to be sent.
SECTION 7.5. Ordinary Course
Nothing contained herein shall preclude the transmission of routine invoices or
correspondence, messages and information between the Parties by a representative of a Party in
the ordinary course of performing their respective obligations under the Contract Documents.
ARTICLE VIII
SITE
SECTION 8.1. Site Investigation
The Site characteristics are described in Exhibit A. Contractor represents and
warrants that is knows and has carefully reviewed and taken account of all visible and disclosed
conditions at the Site, including, the topography, utilities, traffic and weather patterns at the Site
and surrounding area, the management and storage of materials, the availability of labor,
construction water, construction electricity, and construction communications, the access routes to
the Site, and soil and subsoil (to the extent expressly disclosed and described in the geotechnical
report referred to in Exhibit A) characteristics. The Parties understand and agree that if Owner has
conducted any geotechnical investigations of the Site, such investigations and resulting reports will
be included in Exhibit A and shared with Contractor, and that Contractor has a right to reasonably
rely upon such without independent verification. Contractor's failure to acquaint itself with such
general or local conditions or circumstances affecting the Work existing as of the Effective Date
of this Agreement shall neither relieve Contractor from the responsibility for successfully
performing this Work nor entitle Contractor to an adjustment to the Contract Price or Project
Milestone Schedule. Contractor shall be entitled to a Change Order under Article V with respect
to subsurface conditions or other differing or changed site conditions which were not known or
disclosed to Contractor and which Contractor could not have anticipated from a thorough site
investigation.
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General Counsel
4725 Hwy 28E, Bldg. 1
Pineville, LA 71360
E-mail:
Generalcounsel@crestoperations.com
Phone:
318-767-5530
SECTION 7.4. Changes
Each Party shall provide the other Parry with notice when its respective address,
contact person, telephone number, e-mail address, or facsimile number changes to which notices
are to be sent.
SECTION 7.5. Ordinary Course
Nothing contained herein shall preclude the transmission of routine invoices or
correspondence, messages and information between the Parties by a representative of a Party in
the ordinary course of performing their respective obligations under the Contract Documents.
ARTICLE VIII
SITE
SECTION 8.1. Site Investigation
The Site characteristics are described in Exhibit A. Contractor represents and
warrants that is knows and has carefully reviewed and taken account of all visible and disclosed
conditions at the Site, including, the topography, utilities, traffic and weather patterns at the Site
and surrounding area, the management and storage of materials, the availability of labor,
construction water, construction electricity, and construction communications, the access routes to
the Site, and soil and subsoil (to the extent expressly disclosed and described in the geotechnical
report referred to in Exhibit A) characteristics. The Parties understand and agree that if Owner has
conducted any geotechnical investigations of the Site, such investigations and resulting reports will
be included in Exhibit A and shared with Contractor, and that Contractor has a right to reasonably
rely upon such without independent verification. Contractor's failure to acquaint itself with such
general or local conditions or circumstances affecting the Work existing as of the Effective Date
of this Agreement shall neither relieve Contractor from the responsibility for successfully
performing this Work nor entitle Contractor to an adjustment to the Contract Price or Project
Milestone Schedule. Contractor shall be entitled to a Change Order under Article V with respect
to subsurface conditions or other differing or changed site conditions which were not known or
disclosed to Contractor and which Contractor could not have anticipated from a thorough site
investigation.
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SECTION 8.2. Lines and Grades
Contractor shall establish construction base lines and benchmarks for the Work.
Said base lines and benchmarks, and all stakes or other markers established, shall be preserved by
Contractor until their removal is authorized by Owner. Owner may, from time to time, check the
layout of Contractor, but such checking shall in no way relieve Contractor of its responsibility for
the accuracy of the Work. Contractor shall provide, at the request of Owner, competent personnel
to assist in this checking.
SECTION 8.3. Specifications and Drawings
(a) Contractor shall maintain at the Site a copy of the "approved for
construction" working specifications and drawings (including "as -built drawings")
applicable to the Work with all changes and modifications, and shall at all times give
Owner access thereto. Anything mentioned in the specifications and not shown on
the drawings or shown on the drawings and not mentioned in the specifications, shall
be of like effect as if shown or mentioned in both.
(b) "As -Built" Drawings. Contractor shall provide and keep at the Site
a complete "as -built" record set of drawings (also called "record drawings") that
shall be updated periodically. The drawings shall reflect exact and actual "as -built"
conditions of construction, installation, and erection as it progresses. Where
drawings are not adequate to show "as -built" conditions, Contractor shall prepare
sketches which delineate the necessary "as -built" information. Contractor shall
furnish two (2) sets of all paper "blue -line" prints "approved" drawings for use in
accomplishing specified mark-up. Final "as -built" drawings, and a computerized
disk of such drawings, with respect to the Facility shall be delivered to Owner by
Contractor on or before Final Completion. Contractor represents that the
specifications and drawings submitted by it to Owner hereunder are all those
customary and necessary for the operation and maintenance of a facility such as the
Facility.
SECTION 8.4. Use of Premises
Contractor shall confine the storage of materials and construction equipment in
connection with the Work in accordance with all Applicable Law, and Contractor's safety
procedures. Contractor shall provide adequate safety barriers, signs, lanterns, and other warning
devices and services to properly protect any person having access to or near the areas where Work
is being performed at the Site. Contractor shall follow Owner's instructions concerning the
location of signs and posters, the time and location of the burning of debris, and any other similar
nuisance items.
SECTION 8.5. Cleaning Up
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Contractor shall, at all times, keep the Site and other locations on the Site where
the Work is performed, including storage areas used by it, in a clean and orderly condition and free
from combustible debris and waste materials. Upon completion of the Work, Contractor shall
remove all rubbish from and about the premises and restore the Site to its original condition with
special respect to ruts and debris of all kinds.
SECTION 8.6. Underground Facilities
Contractor shall be familiar with the requirements of the respective underground
facility laws of the State of Texas. Contractor shall identify (through "as -built" drawings as
provided by Owner and reasonable inspection) to the extent necessary to perform the Work all
underground facilities in the areas on the Site where Work is to be performed, including, but not
limited to, gas, electric, telephone, water, drain lines, sewer, and the like. Contractor will take the
necessary steps to safeguard these underground facilities. If, however, Contractor encounters
underground facilities that could not be reasonably identified through compliance with
underground facilities laws, review of any Owner -provided as -built drawings, or Site walk -downs,
Contractor shall be entitled to a Change. With respect to areas outside of the Site, Contractor may
rely on third parties, as necessary and appropriate, and in compliance with Applicable Laws.
Contractor shall notify the appropriate agency or owner of the underground property and Owner's
Representative. Contractor shall file a report of accident with the relevant local official, owner or
agency at the time of any damage.
SECTION 8.7. Other Contracts
Owner may undertake or award other contracts for additional work at or near the
Site. The Parties shall coordinate the performance of any such additional work to avoid any
adverse impact on the performance by Contractor of its obligations under this Agreement.
ARTICLE IX
COMPLETION OF THE WORK
SECTION 9.1. Mechanical Completion
(a) "Mechanical Completion" shall occur when the following requirements
have been satisfied:
(i) Contractor has constructed and installed all materials, equipment
(including Owner -Supplied Equipment), components and systems necessary to
begin commissioning of Owner -Supplied Equipment and the Facility (except for
completion of minor portions of the Work such as painting, final grading,
landscaping, final insulation, and any other portion of the Work not affecting the
reliability, dependability, testing, operability, safety, and mechanical and electrical
integrity of the Facility) in accordance with the Contract;
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(ii) Contractor has made available for inspection by Owner all systems
necessary to begin Commissioning in accordance with procedures mutually agreed
to at the time by Contractor and Owner;
(iii) the Work with respect to the Facility is mechanically and electrically
sound, all systems necessary to begin commissioning of Owner -Supplied
Equipment and the Facility, and all required pre -operations checking and testing
(including construction, electrical, control) have been completed satisfactorily;
(iv) the Work is ready to allow start-up testing, preliminary operation
and commissioning of the Facility; and
(v) all Facility systems and subsystems have been installed, the
equipment and systems included therein (can be operated in a manner that does not
void any Subcontractor or system warranty and Contractor has made the Facility
available for interconnection with the ERCOT transmission grid and Owner's
distribution system;
(b) When Contractor believes that the requirements of Mechanical
Completion have been met, Contractor shall issue a notice of Mechanical
Completion to Owner in substantially the form attached hereto as Exhibit D-1.
Within five (5) Business Days after receiving such notice of Mechanical
Completion, Owner shall advise Contractor, in writing, with reasonable precision,
of any known reason(s) that Contractor has not met the criteria for Mechanical
Completion. If Owner advises of any such reason(s), Contractor shall then take
appropriate corrective action and again notify Owner, in writing, that the Facility
has achieved Mechanical Completion. Owner shall have five (5) Business Days
after receipt of such notification to advise Contractor of any remaining known
reason(s) under the preceding paragraph why Contractor has not met the criteria for
Mechanical Completion. This process shall be repeated as necessary until Owner
agrees that no such reasons remain and Mechanical Completion is achieved. If
Owner fails to notify Contractor of any such known reasons within the allotted time,
the Facility shall be deemed to have achieved Mechanical Completion as of the date
of such notification. Otherwise, subject to Contractor's right to dispute Owner's
assertion that Mechanical Completion has not been achieved, Mechanical
Completion shall not be achieved until Owner and Contractor agree that all of the
criteria for Mechanical Completion have been achieved. If Owner does agree that
the Contractor has meet the requirements of Mechanical Completion then the date
of Mechanical Completion shall as per the date of the Contractor's notice.
SECTION 9.2. Substantial Completion
(a) "Substantial Completion" shall occur on the date on which:
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(i) the conditions for Mechanical Completion have been satisfied;
(ii) all services, materials and equipment comprising the Facility have
been completed in accordance with the requirements of this Agreement (other than
Punch List items);
(iii) the Performance Tests have been satisfactorily completed with
respect to the Facility and by Contractor with respect to the Performance Tests and
that Contractor's performance of the Work does not prevent the Facility from
achieving the - interconnections and performance guarantee levels;
(iv) the Punch List has been provided to Owner as set forth in Section
9.3.
(b) Owner and Owner's Representative shall have the right and opportunity to
be present and observe the Performance Tests and to inspect and validate all meters,
meter readings and other pertinent data necessary to verify the results of the Performance
Tests. Contractor and Owner shall coordinate such observation, inspection and
validation so as not to interfere with the Performance Tests yet provide for a verifiable
result.
(c) When Contractor believes it has achieved Substantial Completion,
Contractor shall tender a certificate of Substantial Completion to Owner in substantially
the form attached hereto as Exhibit D-2. Owner shall accept or reject Contractor's
certification in writing within three (3) Business Days after receipt of Contractor's
tender. If Owner fails to notify Contractor of any such known reasons within the allotted
time, Substantial Completion shall be deemed to have been achieved as of the date of
the tender of the certificate. If Owner rejects Contractor's certification, Owner shall
identify its reasons for rejection in detail sufficient for verification and thereafter
Contractor shall:
(i) take prompt corrective action, as necessary, to achieve the
requirements of Substantial Completion and then submit a new certification to
Owner as provided for above; or
(ii) disagree with Owner's reasons for such rejection, promptly notify
Owner, and the Parties shall attempt to resolve the disagreement without delay. If
the disagreement cannot be resolved within five (5) Business Days, then Contractor
may seek a determination whether or not Substantial Completion has been achieved
under Article XI "Dispute Resolution".
(d) The date of Substantial Completion shall be the date of the relevant notice
that Owner accepts or is deemed to have accepted under the procedures outlined in
Section 9.2(c).
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SECTION 9.3. Punch List
At the time of submitting a certificate of Substantial Completion, Contractor shall
prepare and submit to Owner a Punch List for the Facility and an estimate of costs necessary to
complete the Punch List. Owner shall have seven (7) Business Days from receipt of said Punch
List or update to provide any comments to the Punch List. The Parties shall review the Punch List
and discuss the items to be included in a mutually agreed Punch List, with an estimate of the cost
to complete the Punch List items; provided, however, that pending resolution of any dispute with
respect to the Punch List, Owner may withhold from any payment of the Contract Price due on
Substantial Completion, draw on the Retainage or, if applicable, draw on the Performance Security,
in an amount equal to two hundred percent (200%) of the estimated cost of completing the Punch
List items of work. Owner shall provide Contractor with reasonable access to the Facility to
complete the Punch List. Contractor shall diligently pursue completion of the Punch List within
sixty (60) days following Substantial Completion and shall notify Owner in writing upon
Contractor's determination that Punch List Work is complete. Owner shall have seven (7)
Business Days to accept or reject Contractor's determination that the Punch List Work is complete.
If Owner rejects Contractor's determination, then Contractor may seek a determination whether or
not the Punch List Work is complete under Article X1 "Dispute Resolution".
SECTION 9.4. Remedy of Failure to Achieve Performance Guarantees
Subject to the provisions of Article V, during the one hundred twenty (120) day
period following the relevant date of Substantial Completion, Owner may direct Contractor to
undertake remedial action with respect to the Facility to achieve such performance guarantees.
SECTION 9.5. Final Completion
(a) "Final Completion" with respect to the Facility shall occur on the date
on which:
(i) Mechanical Completion has occurred;
(ii) Substantial Completion has occurred;
(iii)all Punch List items have been completed;
(iv)the Performance Tests have all been completed;
(v) Contractor has paid all undisputed Delay Damages as set forth in
Section 9.7;
(vi)Contractor has executed and delivered to Owner Contractor's final
waiver of liens in the form attached hereto as Exhibit C-2 and final waivers of
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liens (in the form attached hereto as Exhibit C-2) executed by all
Subcontractors with subcontracts having a value, individually or in the
aggregate, in excess of one hundred thousand dollars ($100,000) and
Contractor's certification that, to the best of Contractor's knowledge after
reasonable inquiry, (1) all indebtedness, including liens, with respect to or in
connection with the Work has been paid and (2) all claims for payment for labor
and materials for which Contractor is responsible in connection with the
construction of the Facility have been paid or satisfied; and/or bonded off;
(vii) all Final As -built Drawings and Documentation have been
delivered by Contractor to Owner; and
(viii) Contractor shall have reimbursed Owner for or shall have,
without cost to Owner, ordered or replaced any of Owner's spare parts used to
perform the Work.
(b) When Contractor believes it has achieved Final Completion of the
Facility, Contractor shall tender a certificate of Final Completion to Owner
substantially in the form attached hereto as Exhibit. D-3. Owner shall accept or
reject Contractor's determination of Final Completion in writing within five (5)
Business Days after receipt of Contractor's tender. If Owner fails to notify
Contractor of any such known reasons within the allotted time, the Facility shall be
deemed to have achieved Final Completion as of the date of the tender of the
certificate. If Owner rejects Contractor's determination of Final Completion, Owner
shall identify its reasons for rejection in detail sufficient for verification and
thereafter Contractor shall:
(i) take prompt corrective action, as necessary, to achieve the
requirements for Final Completion, and then submit a new determination of Final
Completion to Owner as provided for above; or
(ii) disagree with Owner's reasons for such rejection, promptly notify
Owner, and the Parties shall attempt to resolve the disagreement without delay. If
the disagreement cannot be resolved within five (5) Business Days, then Contractor
may seek a determination whether or not Final Completion has been achieved under
Article XI "Dispute Resolution".
SECTION 9.6. Schedule Guarantee and Delay Damages
Contractor shall perform the Work so that Substantial Completion is achieved no
later than the Contract Completion Date. Contractor agrees that if Substantial Completion is not
achieved by the Contract Completion Date because of Contractor's unexcused performance failure,
Contractor shall pay Delay Damages to Owner until Substantial Completion (or a percent thereof
if there is only partial Substantial Completion of the Facility) occurs.. Subject to Owner's rights
under Article X, the receipt by Owner of Delay Damages shall be Owner's sole and exclusive
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remedy, and Contractor's sole and exclusive obligation, for a failure to achieve Substantial
Completion by the Contract Completion Date.
SECTION 9.7. Payment of Delay Damages
Contractor shall pay Delay Damages in arrears every fifteen (15) days within seven
(7) days of receipt of an invoice from Owner delivered after the end of such fifteen (15) day period.
Owner's invoice for Delay Damages shall specify the amount due and shall include reasonable
data and calculations on the basis of which such amount has been determined.
SECTION 9.8. Payment of Early Substantial Completion
Owner shall compensate Contractor $2,000 per calendar day for each day that
Substantial Completion is achieved prior to the Contract Completion Date. Owner shall make
payment for Early Substantial Completion within seven (7) days of receipt of an invoice from
Contractor. Contractor's invoice for payment of Early Substantial Completion shall specify the
amount due and shall include reasonable data and calculations on the basis of which such amount
has been determined.
ARTICLE X
DEFAULT AND TERMINATION
SECTION 10.1. Contractor Default
Contractor shall be deemed to be in default if it at any time during the performance
of the Work Contractor shall:
(a) Materially fail to prosecute the Work or any portion thereof with
sufficient diligence or otherwise commit a substantial breach of any material
provision of this Agreement and Contractor does not commence and diligently
proceed to cure such failure or breach within fifteen (15) calendar days following
delivery of a notice from Owner to Contractor to remedy such failure or breach or,
if a cure of such failure or breach cannot be effected within such fifteen (15) day
period, Contractor has commenced such cure within such period and diligently
pursues such cure thereafter;
(b) Become insolvent or make a general assignment for the benefit of
its creditors;
(c) File a petition in bankruptcy or have a petition in bankruptcy filed
against it or an attachment or execution levied upon any of its property used
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hereunder, or have a receiver for its business appointed on account of the condition
of such business or of insolvency;
(d) Materially disregard or fail to comply with laws, ordinances, rules,
regulations, or orders of any public authority having jurisdiction and Contractor does
not commence and diligently proceed to cure such failure within twenty (20)
calendar days following delivery of a notice from Owner to Contractor to remedy
such failure or, if such cure cannot be effected within such twenty (20) day period,
Contractor has commenced such cure within such period and diligently pursues such
cure thereafter;
(e) Attempt to assign this Agreement without obtaining Owner's prior
consent;
(f) Fail to make an undisputed payment to Owner when due hereunder
and Contractor does not cure such failure within ten (10) days following delivery of
a notice from Owner to Contractor to remedy such failure.
(g) Failure to maintain insurance coverage required of Contractor as
specified in Article XIV of this Agreement and Contractor does not commence and
diligently proceed to cure such failure or breach within fifteen (15) calendar days;
provided, however, Contractor shall not be allowed to continue any Work until such
insurance coverage is reinstated and such stoppage shall not constitute a delay due
to a third party hereunder. Contractor shall use best efforts to ensure that any
stoppage of Work due to this Section does not impact any Subcontractor or other
applicable third party.
(h) The issuer of the Contractor Payment & Performance Bond
disavows its obligations under the Contractor Payment & Performance Bond,
respectively, the Contractor Payment & Performance Bond ceases to be in full force
and effect for the duration required under this Agreement and Contractor does not
promptly, using best efforts, replace such Contractor Payment & Performance Bond
with an equivalent security acceptable to Owner.
SECTION 10.2. Right to Terminate for Cause
If at any time Contractor shall be deemed in default pursuant to Section 10.1
"Contractor Default", Owner may elect to terminate this Agreement in accordance with Section
10.3 "Termination by Owner for Cause" and Owner may draw on the Retainage or, if applicable,
the Performance Security for any amounts due from but not paid by Contractor under this
Agreement.
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SECTION 10.3. Termination by Owner for Cause
(a) If Owner elects to terminate this Agreement due to Contractor's default
under the terms of Sections 10.1 and 10.2, Owner shall give written notice of
termination to Contractor specifying the date of termination and in such event:
(i) Owner, without incurring any liability to Contractor, shall have the
right to have the Work finished either by itself, its affiliates or by a third -party
contractor. In such event, Owner shall not be liable to make further payments to
Contractor until the Work is completed and Contractor shall be liable to Owner for
costs incurred by Owner in accordance with Prudent Utility Practices in completing
the Work, including without limitation, costs of accelerated or expedited
construction methods actually performed in an attempt to achieve Substantial
Completion by the Contract Completion Date, and/or to mitigate any delay by
Contractor, and costs for administering any subcontracts associated with the
termination, but only to the extent such foregoing costs exceed the portion of the
Contract Price that, absent such termination, remained to be paid to Contractor
under this Agreement; and
(ii) upon termination of the Work pursuant to this Section 10.3,
Contractor shall promptly submit to Owner an accounting of Contractor's costs for
the Work performed prior to the date of termination, which shall not exceed the
sum of all milestone and other payments paid or owed as of the date of termination,
plus a portion of the milestone payment immediately next due after the date of
termination corresponding to that portion of the Work which has been satisfactorily
completed but not previously invoiced. Where Owner does not exercise its rights
under Section 10.3(a)(i) to complete the Work, Owner shall pay Contractor, not
later than sixty (60) days after receipt of Contractor's accounting of costs,
Contractor's costs of the Work, less the sum of all milestone payments of the
Contract Price and other payments previously paid. Where Owner completes the
Work for less than the Contract Price, Owner shall pay Contractor, not later than
sixty (60) Days after the Work is completed, Contractor's costs of the Work, less
the sum of all milestone payments and other payments previously paid.
(b) Termination of the Work in accordance with this Article shall not
relieve Contractor of its responsibilities for Work performed.
(c) Delay Damages and Performance Damages, if any, shall cease to
accrue as of the date of termination.
(d) Nothing in these Contract Documents with respect to Delay
Damages or any payment of any of the same to Owner shall be construed as limiting
or relieving (a) Contractor's obligations generally to achieve its Project Milestones,
(e) warranties granted under these Contract Documents, or (c) Owner's remedies for
Contractor's default as provided herein.
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(e) If Owner terminates this Agreement for cause and the grounds for
such termination are subsequently found to be invalid, such termination will be
treated as a termination for convenience by Owner and payment to Contractor shall
be in accordance with Section 10.4.
SECTION 10.4. Termination by Owner for Convenience
(a) Owner may, upon thirty (30) calendar days' advance written notice
to Contractor, suspend, abandon, or terminate the Work, or any portion thereof, and
terminate this Agreement, for any reason whatsoever, including for the convenience
of Owner without regard to whether or not Contractor has defaulted or failed to
comply with the provisions of the Contract Documents, except for the purpose of
substituting another contractor in place of the Contractor.
(b) If Owner terminates the Work, or any portion thereof for
convenience, Contractor shall be entitled to amounts paid previously or invoiced and
unpaid to Contractor hereunder and in addition Owner shall pay, without duplication
of the milestone or other payments paid previously, Contractor for all its costs for
the parts of the Work done prior to the effective date of termination, including
materials provided, plus any Subcontractor or vendor cancellation costs, plus an
amount for the Contractor's substantiated, reasonable direct costs plus reasonable
overhead and profit incurred in preparation for the parts of the Work not yet
performed and in demobilization.
(c) Contractor shall not be entitled to any other costs or damages
whatsoever arising out of Contractor's performance of the Work for the termination
by Owner for convenience.
SECTION 10.5. Stopping Work
(a) When Owner terminates the Work in accordance with Section 10.3
"Termination by Owner for Cause" or 10.4 "Termination by Owner for
Convenience", Contractor shall take the actions set forth below.
(b) Unless Owner directs otherwise, after receipt of a written notice of
termination for either cause or convenience, Contractor shall promptly:
(i) stop performing Work on the date and as specified in the notice of
termination;
(ii) place no further orders or subcontracts for materials, equipment,
services or facilities, except as may be necessary for completion of such portion of
the Work that is not terminated;
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(iii) cancel all orders and subcontracts, upon commercially reasonable
terms acceptable to Owner, to the extent that they relate to the performance of Work
terminated;
(iv) assign to Owner all of the right, title, and interest of Contractor in
all orders and subcontracts;
(v) deliver completed Work to Owner and take such action as may be
necessary or as directed by Owner to preserve and protect the Work, Site, and any
other property related to the Work in the possession of Contractor in which Owner
has an interest; and
(vi) continue performance only to the extent not terminated.
(c) In the case of any termination, Contractor shall proceed with the orderly
demobilization and closeout of the Work.
SECTION 10.6. Suspension of the Work
(a) Owner may, for any reason, at any time suspend the carrying out of the
Work or any part thereof by advance written notice to Contractor. Any such notice
shall specify the date of suspension, the expected duration of the suspension and any
other information relevant to the scope of work being suspended. Whereupon,
Contractor shall suspend the carrying out of the Work or any part thereof for such
time or times and in such manner as Owner may require. During any such
suspension, Contractor shall properly protect and secure the Work in such manner
as Owner may reasonably require. Unless otherwise instructed by Owner,
Contractor shall, during any such suspension, maintain its staff and labor on or near
the Site and otherwise be ready to proceed with the Work upon receipt of Owner's
further instructions. Should the Work be so suspended, Owner and Contractor shall
negotiate a Change Order to address the impact of any suspension by Owner
hereunder on the Contract Price, the Project Milestone Schedule and Contract
Completion Date in accordance with Article V "Changes in the Work" of the
Agreement. When a suspension equals or exceeds one hundred eighty (180) days in
the aggregate, Contractor may elect to treat such suspension as a Termination for
Convenience of Owner pursuant to Section 10.4.
SECTION 10.7. Owner Default
Owner shall be deemed to be in default if at any time during the performance of
this Agreement:
(a) Owner commits a breach or default of any of its covenants or
obligations hereunder and fails to commence proceedings to remedy such breach or
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default within twenty (20) Business Days after written notice thereof from
Contractor and thereafter diligently proceeds with such remedy;
(b) Owner becomes insolvent or makes a general assignment for the
benefit of its creditors;
(c) Owner files a petition in bankruptcy or has a petition in bankruptcy
filed against it or an attachment or execution levied upon any of its property used
hereunder, or has a receiver for its business appointed on account of the condition of
such business or of insolvency;
(d) Owner materially disregards or fails to comply with laws,
ordinances, rules, regulations, or orders of any public authority having jurisdiction
and Owner does not commence and diligently proceed to cure such failure within
thirty (30) calendar days following delivery of a notice from Contractor to Owner to
remedy such failure or, if such cure cannot be effected within such thirty (30) day
period, Owner has commenced such cure within such period and diligently pursues
such cure thereafter; or
(e) Owner fails to make an undisputed payment to Contractor when due
hereunder and Owner does not cure such failure within thirty (30) days following
delivery of a notice from Contractor to Owner to remedy such failure.
In the event of an Owner default, Contractor may, at its option, suspend performance or terminate
this Agreement thirty (30) Business Days following notice thereof to Owner; provided, however,
that Contractor may, at its option, suspend performance of this Agreement ten (10) Business Days
following notice to Owner of a failure by Owner to make an undisputed payment to Contractor
when due hereunder if Owner has not cured such non-payment within such notice period. Should
Contractor so suspend or terminate this Agreement, it shall be paid for all costs incurred and Work
performed to the date of suspension/termination, including any cancellation charges by
Subcontractors (including suppliers, vendors and OEMs), and the cost of all standby and
demobilization/remobilization expenses pursuant to the provisions of Section 10.4.
SECTION 10.8. Delivery of Documents
Upon the termination of this Agreement, in whole or in part, pursuant to either
Section 10.3 "Termination by Owner for Cause", 10.4 "Termination by Owner for Convenience",
or 10.7 "Owner Default", Contractor shall execute and deliver all such instruments and take all
such steps, including assignment of its contractual rights with third parties, as may be required to
fully vest in Owner all right, title, and interest in all Work, subject to Section 15.1, including, but
not limited to, all plans, specifications, deliverables, materials, and equipment procured and all
contractual rights, and/or cancel or terminate, at Owner's option, such of those contractual rights
including, but not limited to, subcontracts and purchase orders as may be requested in writing by
Owner.
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ARTICLE XI
DISPUTE RESOLUTION
SECTION 11.1. Dispute Resolution
(a) Dispute. Any dispute, controversy or claim involving the Parties
arising out of or relating to this Agreement or any related contract or the validity,
interpretation, breach or termination hereof or thereof (a "Dispute"), including
claims seeking redress or asserting rights under Applicable Law, shall be resolved
in accordance with the procedures set forth in this Article XI. Until completion of
such procedures, no Parry may take any action not contemplated herein to force a
resolution of the Dispute by any judicial, arbitral or similar process, except to the
limited extent necessary to avoid expiration of a claim that could eventually be
permitted hereby or as provided in Section 11.3.
(b) Discovery Exemption. All communications between the Parties or
their respective representatives in connection with the attempted resolution of any
Dispute shall be deemed to have been delivered in furtherance of a Dispute
settlement and shall be exempt from discovery and production, and shall not be
admissible in evidence (whether as an admission or otherwise), in any proceeding
for the resolution of the Dispute.
SECTION 11.2. Consideration by Senior Management
In the event a Dispute cannot be resolved by the Contractor's Project Manager and
Owner's Representative, either Party may, by notice to the other Parry, request referral to the senior
management of Owner and Contractor for their consideration. Such request shall be accompanied
by a written statement of the Dispute and of each Parry's position. Within ten (10) days following
such request, the non -requesting Party shall either concur in such statement or prepare its own, and
such statement shall be delivered to such senior management. Such senior management shall meet
in person or by telephone within ten (10) days thereafter to seek a resolution. In the event no
resolution is reached by the expiration of thirty (30) days following the referral request, then the
Parties may agree to submit such Dispute to resolution as further provided in Section 11.3 by notice
to the other Party ("Mediation Notice") or proceed directly to resolution as provided in Section
11.4.
SECTION 11.3. Mediation
(a) Any Dispute arising out of or relating to this Agreement or the breach
thereof which has not been resolved through negotiation in accordance with the
procedures set forth in Section 11.2 may be submitted to non-binding mediation
upon agreement of the Parties. The decision of the mediator shall be in writing and
shall give reasons for the decisions reached by the mediator, but it shall not be
binding on the Parties. Prior to commencement of the mediation, the mediator shall
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be required to enter into a confidentiality agreement to keep the information
disclosed during mediation and the occurrence of the mediation confidential.
SECTION 11.4. Jurisdiction
Each of the Parties expressly irrevocably agrees that any legal action or proceeding
with respect to this Agreement or the transactions contemplated hereby shall be brought and
determined in Denton County, Texas and each Party hereby irrevocably submits to the exclusive
jurisdiction of such court in respect of any such action or proceeding and waives any defense of
forum non conveniens, provided, however, that the foregoing shall not limit the rights of either
Party to obtain execution or enforcement of judgment in any other jurisdiction. The Parties further
agree that, to the extent permitted by Law, a final and unappealable judgment against a Party from
any action or proceeding contemplated above in this Section 11.4 shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States of America by suit on the
judgment, a certified copy of which shall be conclusive evidence of the amount of such judgment.
ARTICLE XII
INDEMNITY AND LIMITATIONS OF LIABILITY
SECTION 12.1. General Liability
(a) CONTRACTOR ON BEHALF OF ITSELF, AND ITS AFFILIATES,
SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS,
AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS OWNER, OWNER'S
REPRESENTATIVE, ANY LENDER PROVIDING OWNER WITH. FINANCING FOR
THE FACILITY AND THEIR. RESPECTIVE SUCCESSORS, ASSIGNS, OFFICERS,
DIRECTORS, EMPLOYEES, AND AGENTS, FROM AND AGAINST
ANY AND ALL LIABILITIES, LOSSES, EXPENSES, AND CLAIMS FOR
THIRDPARTY PERSONAL INJURY, INCLUDING INJURIES TO EMPLOYEES OF
CONTRACTOR OR EMPLOYEES OF SUBCONTRACTOR OR THIRD -PARTY
PROPERTY DAMAGE (EXCEPT TO THE WORK) TO THE EXTENT CAUSED BY
CONTRACTOR'S OR ITS SUBCONTRACTORS' ACTS OR OMINZISSIONS IN THE
PERFORMANCE OF THE WORK.
SECTION 12.2. Liability for Owner Property
The Parties agree that builder's all-risk property insurance, which is to be provided
pursuant to Sectioii 14.2(f) will(subject to policy terms, limitations and exclusions) cover risks,
damage and losses to the Work prior to Substantial Completion. Notwithstanding Section 2.13,
after Substantial Completion, (a) Owner's property insurance, which is to be provided pursuant to
Section 14.2(a), will cover all risks, damage and, on industry standard forms, losses to property
owned by or in the custody of Owner(subject to policy terms, limitations and exclusions); (b)
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deductibles for losses covered under the property coverage and non -covered losses shall be paid
by Owner, unless such loss is caused by the negligence of Contractor and its Subcontractors, in
which case Contractor shall be liable for applicable deductibles not to exceed 1,000,000] each
occurrence; and (c) except as otherwise provided in clause (b), Owner hereby releases Contractor
and its Subcontractors from any liability for property damage arising from the ownership, use or
operation of the Facility or any part thereof, subsequent to the transfer of care, custody and control
to Owner.
SECTION 12.3. Trespass
Contractor shall be solely responsible for any act of trespass or any injury to
adjacent third party property resulting from Contractor's performance of the Work. Contractor
shall be liable for any claims that may arise from Contractor's deposit of debris of any kind upon
adjacent property.
SECTION 12.4. Intellectual Property Rights Infringement Indemnity
Contractor warrants that none of the Work performed by Contractor, or the
documents, goods or equipment produced, designed, fabricated, or assembled by Contractor
(which excludes Owner -Supplied Equipment) pursuant to this Agreement infringe upon or violate
any North American patent, copyright, trade secret, or any other intellectual or proprietary rights
of any third party. If any third party makes a claim or commences a proceeding against Owner
regarding the Work, alleging such an infringement or violation, then subject to this Section 12.4,
Contractor shall indemnify, defend and save harn;Iess Owner, its directors, officers,
employees, agents and affiliates from and against all damages and costs incurred by or
awarded against Owner (including court costs and reasonable attorneys' fees). Contractor
agrees to include, as a term or condition of each purchase order employed by it in the performance
of the Work, a patent indemnification provision extending from the Subcontractor under such
purchase order to Owner and Contractor and to render such assistance to Owner as may be
reasonably required, to enforce the terms of such indemnification by such Subcontractors. Owner
will notify Contractor if any such claim is made or proceeding is commenced. Owner may, at its
option, be represented by separate legal counsel in any such claim or proceeding; however,
Contractor shall not be obligated to reimburse Owner the costs and expenses incurred by Owner
in being so represented. If the use of any of the Work, or the results of such Work, or documents,
goods, or equipment, or any part thereof, furnished under this Agreement in connection with the
Work is held in any such claim or proceeding to constitute an infringement and/or is enjoined,
whether temporarily or permanently, Contractor shall, at its sole cost and expense, do any of the
following -(the selection of which shall be at the sole discretion of the Contractor):
(a) Procure for Owner the right to use the Work or results of such Work
or such documents, goods and equipment; or
(b) Replace the Work or the results of such Work or such documents,
goods, or equipment with non -infringing Work, documents, goods or equipment
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having the equivalent functionality as the infringing or allegedly infringing Work,
documents, goods or equipment; or
(c) Modify such Work, documents, goods, or equipment so as to make
them non -infringing, but equivalent in functionality.
SECTION 12.5. Owner's Use of Drawings and Specifications
Drawings and specifications prepared by Contractor specifically for Owner
pursuant to this Agreement, which Owner may require Contractor to supply in accordance with the
Agreement, shall become the property of Owner upon payment, and Owner agrees to use the
information contained therein solely for the purpose of facilitating or completing construction,
maintenance, operation, modification and repair of the Facility (and not for duplication of the
Facility, in whole or part) and agrees to treat such as Confidential Information. Nothing herein
shall be construed as limiting Contractor's ownership of all rights to use its know-how, experience
and skills, whether or not acquired during performance of the Work or to perform any engineering
design or other Work for any other party.
SECTION 12.6. Consequential Damages
Neither Owner nor Contractor and its Subcontractors shall not be held responsible
to the other for consequential, incidental, special, exemplary, punitive, or indirect damages,
including, without limitation, liability for loss of production or use of the Facility, or loss of profits
or revenue, interest, product or business interruption, increased costs of operations and
maintenance or staffing needs, however the same may be caused. The waiver in this Section shall
not be construed to apply to indemnity obligations for any third party claims concerning damage
to property, bodily injury or death for which Contractor owes an indemnity under Section 12.1 or
to any liquidated Delay Damages.
SECTION 12.7. Compliance with Laws
(a) To the extent authorized by the laws of the State of Texas,
Contractor on behalf of itself, and its affiliates, successors, assigns, officers,
directors, employees, and agents, agrees to indemnify Owner, Owner's
Representative, and their respective successors, assigns, officers, directors,
employees, and agents, from and against any and all losses, expenses, and
damages, including any fines or penalties, that arise from or out of Contractor's
or its Subcontractors' failure to comply with Applicable Law.
(b) To the extent authorized by the laws of the State of Texas,
Owner on behalf of itself, and its affiliates, successors, assigns, officers,
directors, employees, and agents, agrees to indemnify Contractor and its
Subcontractors, and their respective successors, assigns, officers, directors,
employees, and agents, from and against any and all losses, expenses, and
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damages, including any fines or penalties, that arise from or out of Owner's
failure to comply with Applicable Law.
SECTION 12.8. Limitation of Liability
Except for (i) liability arising out of the fraud, gross negligence, or willful
misconduct of Contractor or (ii) liability arising out of Contractor's indemnity obligations as
contemplated by Section 12.1, Contractor's aggregate liability shall not exceed one hundred
(100%) of the Contract Price; provided, that the aggregate liability of Contractor for any Delay
Damages shall be limited in the aggregate to twenty-five (25%) percent of the Contract Price.
ARTICLE XIII
DRUG, ALCOHOL, SAFETY AND HAZARDOUS MATFitIALS
SECTION 13.1. Drug and Alcohol Policy
During the term of the Agreement, Contractor shall have in place and comply with
a drug and alcohol policy that at a minimum is consistent with Owners such policy. Contractor's
policy shall include: reasonable testing procedures. Further, Contractor is responsible for testing
and other related costs, for providing required reports to any government agency, and, at Owner's
request, Contractor shall make its policy and drug/alcohol testing statistics available to Owner's
drug and alcohol testing program administrators as identified by Owner from time to time.
SECTION 13.2. Safety Materials
Contractor agrees and warrants that all materials supplied by Contractor and articles
and/or Work provided by Contractor in connection with the Work meet the safety standards
established and promulgated under the Federal Occupational Safety and Health Act of 1970 and,
if applicable, the Federal Motor Carrier Safety Act, or under any Applicable Law of a state in lieu
thereof, for the protection of employees who will be affected by the use or performance of said
articles and/or Work. Contractor shall comply with all federal, state, and local rules and regulations
governing safety and the safe operation of commercial motor vehicles and the safe performance of
the Work. Contractor's safety procedures and guidelines will be prepared and submitted to Owner
thirty (30) days after the Effective Date.
SECTION 13.3. Safety Precautions
Contractor shall be solely responsible for initiating, maintaining and supervising all
safety precautions and programs concerning the performance of the Work in accordance with all
Applicable Laws. Contractor shall provide and be directly responsible for its own safety program
for its employees and for the safe operation of its own vehicles and equipment. Contractor shall
furnish Owner with a copy of its safety manual which has been compiled and designed for the
Facility. Contractor shall comply with its own safety manual.
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(a) In carrying out its responsibilities according to the Contract
Documents, Contractor shall (i) protect the lives and health of employees performing
the Work and other persons who may be affected by the Work, and shall erect and
maintain all reasonable safeguards for such safety and protection; (ii) prevent
damage to materials, supplies, and equipment whether on-site or stored off-site; (iii)
prevent damage to other property at the Site or adjacent thereto; and (iv) notify
Owner's Representative when prosecution of the Work may affect owners of
adjacent properties and utilities.
(b) In reporting an accident involving Contractor and the Work, the
requirements of Section 2.12(c) shall apply.
(c) In the event Owner has a reasonable objection to any employee of
Contractor, Contractor shall investigate and take appropriate disciplinary action, up
to and including removal of the employee from the Site or Owner's premises.
(d) Owner's Representative and Owners safety specialists shall have the
right to demand Contractor or its Subcontractors, stop work in the event of an
observed unsafe work practice or procedure. In the event that work is stopped
pursuant to Section 13.3(d), Contractor shall not resume work on that portion of the
Facility impacted by the unsafe practice or procedure until the situation is resolved
to an acceptable level by the Owner's Representative or the Owner's safety
specialist. and delays caused by such a safety related work stoppage shall not excuse
Contractor from meeting any Project Milestone.
SECTION 13.4. Hazardous Materials
(a) Hazardous Materials to Be Brought onto Site. Contractor shall not, nor
shall it permit or allow any Subcontractor to, bring Hazardous Materials onto the Site and
shall bear all responsibility and liability for such materials; provided, however, that
Contractor and its Subcontractors may bring onto the Site such Hazardous Materials as are
necessary to perform the Work so long as the same is done in compliance with Applicable
Laws and Contractor shall remain responsible for the management, transportation,
treatment and disposal of all such Hazardous Materials. Contractor shall provide Owner's
Representative (or his designated representative) the following information with respect to
any Hazardous Materials: (i) material safety data sheet ("iVI.SDS"), (ii) quantity
(volume/mass), (iii) length of time on Site, (iv) container type, and (v) disposal location if
disposed or otherwise managed. Contractor shall require all Subcontractors and suppliers
to provide the information required under this sub -article to Owner prior to bringing any
Hazardous Materials to the Site. Contractor shall exclude the use of lead paint and material
containing asbestos and Contractor shall minimize the use of acetone and chlorinated
solvents and similar substances at the Site, and shall require all Subcontractors and suppliers
to adhere to the same restrictions.
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(b) INDEMNIFICATION. CONTRACTOR HEREBY
INDEMNIFIES OWNER FROM ANY AND ALL LOSS, DAMAGE, COST,
OR EXPENSE TO THE EXTENT CAUSED BY THE HANDLING,
STORAGE, REMOVAL, REMEDIATION, OR OTHER APPROPRIATE
ACTION (IF ANY), WITH RESPECT TO ANY HAZARDOUS MATERIALS
THAT (I) WERE BROUGHT OR CAUSED TO BE BROUGHT ON THE
SITE BY CONTRACTOR OR ANY SUBCONTRACTOR AND RELEASED
TO THE ENVIRONMENT BY ANY ACT OR OMISSION OF
CONTRACTOR OR ANY SUBCONTRACTOR IN THE COURSE OF
PERFORMANCE OF THE WORK OR (II) WERE EXISTING AT THE SITE
AS OF THE EFFECTIVE DATE TO THE EXTENT THE LOSS, LIABILITY,
CLAIM, CAUSE OF ACTION, SUIT, DAMAGE, COST, ATTORNEYS'
FEES, OR EXPENSE ARISES FROM A NEGLIGENT ACT OR OMISSION
RESULTING IN A RELEASE BY CONTRACTOR OR ANY
SUBCONTRACTOR OF HAZARDOUS MATERIALS IDENTIFIED IN THE
CONTRACT DOCUMENTS AS EXISTING AT THE SITE WITH REGARD
TO LOCATION, QUANTITY, AND NATURE, SUCH THAT A
REASONABLE CONTRACTOR OR SUBCONTRACTOR WITH THE
SAME INFORMATION WOULD HAVE ACTED DIFFERENTLY THAN
CONTRACTOR OR SUBCONTRACTOR AND WOULD HAVE AVOIDED
SUCH RELEASE (PROVIDED, THAT, FOR THE AVOIDANCE OF
DOUBT,
CONTRACTOR'S OBLIGATIONS UNDER THIS SECTION SHALL
APPLY ONLY TO THE RELEASE RESULTING FROM SUCH. ACTS OR
OMMISSIONS AND NOT FOR THE PRE-EXISTING CONDITION OF THE
SITE), OR (III) WERE THE RESULT OF ANY INTENTIONALLY
WRONGFUL OR UNLAWFUL ACT OR OMISSION OF CONTRACTOR
OR ANY SUBCONTRACTOR.
(c) Discovery of Hazardous Materials at Site. If, during the course of the
performance of the Work, Contractor or any Subcontractor discovers, or reasonably
believes it has discovered in, on or under any part of the Site, any Hazardous
Materials (other than Hazardous Materials that Contractor or a Subcontractor has
brought onto the Site, generated or produced by Contractor (or its Subcontractors)
from materials brought to the Site by Contractor (or its Subcontractors)), Contractor
shall promptly advise Owner and shall follow Owner's direction with respect to such
Hazardous Materials. Owner shall undertake the abatement and disposal of any
Hazardous Materials existing at the Site which are encountered by Contractor in the
performance of the Work, and dispose of waste generated by the Facility during
start-up, testing and operation of the Facility.
(i) Contractor shall be entitled to a Change Order for Contractor's costs
and schedule impacts resulting from its compliance with Owner's direction
pursuant to this Section 13.4(c). Owner is responsible for the cost and actions
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necessary for removing Hazardous Materials not brought onto the Site by
Contractor (or its Subcontractors) or not generated or produced by Contractor (or
its Subcontractors) from materials brought to the Site by Contractor (or its
Subcontractors).
(ii) To the extent Contractor encounters Hazardous Materials not
introduced by Contractor, Contractor shall use reasonable efforts to minimize the
consequences to the Project Milestone Schedule of dealing with such Hazardous
Materials.
(iii) Owner has disclosed or shall promptly disclose to Contractor as
information becomes available (i) any reports, test results, public records and other
sources of information known to Owner which show areas of Contamination at the
Site and (ii) any other information related to the condition of the Site, and
Contractor has a right to reasonably rely upon any such information without
independent verification. Anything herein to the contrary notwithstanding (but
without limiting liability Contractor may have under Sections 13.4(b) or
13.4(d)(W)), title to, ownership of, and legal responsibility and liability for any
Contamination shall remain with Owner. Owner shall, at Owner's sole expense
and risk, arrange for handling, storage, transportation, treatment and delivery for
disposal of Contamination. Owner shall be solely responsible for obtaining a
disposal site for such material. Contractor shall not have or exert any control over
Owner in Owner's obligations or responsibilities as a generator in the storage,
transportation, treatment or disposal of any Contamination. Owner shall complete
and execute, in accordance with Applicable Law, any required governmental forms
relating to regulated activities, including, but not limited to, generation, storage,
handling, treatment, transportation, or disposal of Contamination. In the event that
Contractor executes or completes any required governmental forms relating to
regulated activities, including, but not limited to, storage, generation, treatment,
transportation, handling or disposal of Hazardous Materials (other than in
connection with Contractor's responsibilities under Section 13.4(a)), Contractor
shall be and be deemed to have acted as Owner's agent. To the extent allowed by
the laws of the State of Texas, Owner shall indemnify, defend, release and hold
Contractor, its Affiliates, and their respective officers, directors, agents and
employees harmless from all costs, liability, damages and penalties assessed against
or paid by Owner or Contractor resulting from Contamination other than costs,
liability, damages and penalties for which Contractor provides indemnification
pursuant to Section 13.4(b).
(d) Contractor's Responsibility. Contractor shall be responsible for the
handling, management, treatment, storage, removal, remediation, avoidance, or
other appropriate action (if any), with respect to any Hazardous Materials present at,
on, in or under, or migrating and/or emanating to or from the Site that: (i) were
brought or caused to be brought on to the Site and released to the environment by
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any act or ommission of Contractor or any Subcontractor in the course of
performance of the Work; (ii) were brought to the Site or caused to be brought to the
Site by Owner for Contractor's use in the performance of the Work and that are
released to the environment by any act or omission of Contractor or any
Subcontractor in the course of performance of the Work; or (iii) were the result of
any wrongful or unlawful act of Contractor or any Subcontractor. Notwithstanding
the provisions of clause (i) of this Section 13.4(d), Contractor shall not be liable for
any Hazardous Materials brought, or caused to be brought, to the Site by Contractor
that are released to the environment by the act or omission of Owner or any other
party not under Contractor's direction and control.
ARTICLE XIV
INSURANCE
SECTION 14.1. STANDARD PROVISIONS
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor
shall provide and maintain until the Work has been completed and accepted by the Owner
insurance coverage as indicated hereinafter.
As soon as practicable after notification of bid award, Contractor shall file with the
Purchasing Department satisfactory certificates of insurance, containing the bid number and title
of the Project. Contractor shall not commence any work or deliver any material until it
receives notification that the Agreement has been accepted, approved, and signed by the
Owner.
All insurance policies proposed or obtained in satisfaction of these requirements shall
comply with the following general specifications, and shall be maintained in compliance with
these general specifications throughout the duration of the Contract, or as otherwise specified
herein:
• Each policy shall be issued by a company authorized to do business in the State of
Texas with an A.M. Best Company rating of at least A- VII or better.
• Liability policies shall be endorsed to provide the following:
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o Other than Workers Compensation and Professional Liability policies, name or
include as additional insured the City of Denton, its Officials, Agents, Employees,
and volunteers.
o That such insurance(Other than Workers Compensation and Professional Liability
policies) is primary to any other insurance available to the additional insured with
respect to claims covered under the policy and that this insurance applies separately
to each insured against whom claim is made or suit is brought. The inclusion of
more than one insured shall not operate to increase the insurer's limit of liability.
o Other than Professional Liability, provide a waiver of subrogation in favor of the
City of Denton, its officials, agents, employees, and volunteers.
o Cancellation: Owner requires 30 day written notice should any of the policies
described on the certificate be cancelled before the expiration date (ten (10) days
for non-payment of premium). Contractor shall provide such notice of
cancellation for any cancellation if insurer will not provide such notice pursuant
to policy terms.
o Should any of the required insurance be provided under a claims -made form,
Contractor shall maintain such coverage continuously throughout the term of this
Agreement and, without lapse, for a period of three years beyond the Agreement
expiration, such that occurrences arising during the Agreement term which give
rise to claims made after expiration of the Agreement shall be covered.
o Should any required insurance lapse during the Agreement term, requests for
payments originating after such lapse shall not be processed until the Owner
receives satisfactory evidence of reinstated or replacement coverage as required by
this Agreement, effective as of the lapse date. If insurance is not reinstated or
replaced, Owner may, at its sole option, terminate this Agreement effective on the
date of the lapse.
SECTION 14.2. SPECIFIC ADDITONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Agreement shall
additionally comply with the following marked specifications, and shall be maintained in
compliance with these additional specifications throughout the duration of this Agreement, or
longer or as otherwise specified herein:
A. General Liability Insurance
General Liability insurance with combined single limits of not less than $1,000,000.00 shall
be provided and maintained by the Contractor. The policy shall be written on an occurrence
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basis either in a single policy or in a combination of underlying and umbrella or excess
policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
• Coverage A shall include (subject to policy terms, limitations and exclusions) premises,
operations, products, and completed operations, independent contractors, contractual
liability and broad form property damage coverage.
• Coverage B shall include(subject to policy terms, limitations and exclusions) personal
injury.
• Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and
ISO Form GL 0404) is used, it shall include at least(subject to policy terms, limitations
and exclusions):
• Bodily injury and Property Damage Liability for premises, operations, products and
completed operations, independent contractors and property damage resulting from
explosion, collapse or underground (XCU) exposures.
• Broad form contractual liability (preferably by endorsement), personal injury liability
and broad form property damage liability.
B. Automobile Liability Insurance
Contractor shall provide Commercial Automobile Liability insurance with Combined
Single Limits (CSL) of not less than $500,000.00 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 Agreement.
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.
C. 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,
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has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each
employee, and a $500,000 policy limit for occupational disease. The Owner need not be
named as an "Additional Insured" but the insurer shall agree to waive all rights of
subrogation against the Owner, its officials, agents, employees and volunteers for any
work performed for the Owner by the Named Insured. For building or construction
projects, the Contractor shall comply with the provisions of Attachment 1 in accordance
with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's
Compensation Commission (TWCC).
D. 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 Agreement, a Contractor's Protective Liability insurance policy naming
the Owner as insured for property damage and bodily injury which may arise in the
prosecution of the work or Contractor's operations under this Agreement. 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 combined
bodily injury and property damage per occurrence with a $2,000,000 limit per occurrence
and $4,000,000 aggregate limit.
E. Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000 per claim with respect
to negligent acts, errors or omissions in connection with professional services is required
under this Agreement.
F. Builder's Risk Insurance
Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be
provided. Such policy shall include as "Named Insured" the City of Denton and all
Subcontractors and Major Subcontractors as their interests may appear.
G. 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, subject to policy terms,
limitations, and exclusions; provided, however, that such coverage will not be extended to
theft of Owner's property except during the period the Contractor is integrating Owner's
property to the project . The employee fidelity portion of this coverage should be written
on a "blanket" basis to cover all employees, including new hires. Limits of not less than
$500,000 each occurrence are required.
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H. Worker's Compensation Coverage for Building or Construction Projects for
Governmental Facilities
i. Definitions:
Certificate of coverage ("certificate")- Contractor shall provide 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 the 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 Work on the Project has been completed and
accepted by Owner.
Persons providing services on the project ("subcontractor" in §406.096) -
includes all persons or entities performing all or part of the services the
contractor has undertaken to perform on the project, regardless of whether that
person contracted directly with the Contractor and regardless of whether that
person has employees. This includes, without limitation, independent
contractors, subcontractors, leasing companies, motor carriers, owner -
operators, employees of any such entity, or employees of any entity which
furnishes persons to provide services on the project. "Services" include, without
limitation, providing, hauling, or delivering equipment or materials, or
providing labor, transportation, or other service related to a project. "Services"
does not include activities unrelated to the project, such as food/beverage
vendors, office supply deliveries, and delivery of portable toilets.
ii. The Contractor shall provide coverage, based on proper reporting of
classification codes and payroll amounts, which meets the statutory
requirements of Texas Labor Code, Section 401.011(44) for all employees of
the Contractor providing services on the Project, for the duration of the Project.
iii. The Contractor must provide a certificate of coverage to the Owner prior to
being Initial Notice to Proceed.
iv. If the coverage period shown on the Contractor's current certificate of coverage
ends during the duration of the Project, the Contractor must, prior to the end of
the coverage period, file a new certificate of coverage with the Owner showing
that coverage has been extended.
V. The Contractor shall obtain from each person providing services on the Project,
and provide to the governmental entity:
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a. a certificate of coverage, prior to that person beginning work on the
Project, so the Owner will have on file certificates of coverage showing
coverage for all persons providing services on the Project; and
b. no later than seven days after receipt by the Contractor, a new certificate
of coverage showing extension of coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of
the Project.
vi. The Contractor shall retain all required certificates of coverage for the
duration of the Project and for one year thereafter.
vii. The Contractor shall notify the Owner within 30 days after the Contractor
knew, or should have reasonably known, of any change that materially affects
the provision of coverage of any person providing services on the Project.
viii. The Contractor shall post on the 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.
ix. The Contractor shall contractually require each person with whom it contracts
to provide services on the Project, to:
a. 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;
b. 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;
c. provide the Contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the Project;
d. obtain from each other person with whom it contracts, and provide to
the Contractor:
i. certificate of coverage, prior to the other person beginning work
on the Project; and
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ii. a new certificate of coverage showing extension of coverage,
prior to the end of the coverage period, if the coverage period
shown on the current certificate of coverage ends during the
duration of the Project;
e. retain all required certificates of coverage on file for the duration of the
Project and for one year thereafter;
f. notify the Owner in writing by certified mail or personal delivery, within
30 days after the person knew, or should have reasonably known, of
any change that materially affects the provision of coverage of any
person providing services on the Project; and
g. Contractually require each person with whom it contracts, to perform as
required by paragraphs (a) - (f), with the certificates of coverage to be
provided to the person for whom they are providing services.
X. The Contractor represents 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.
xi. The Contractor's failure to comply with any of these provisions is a Default
which entitles the Owner to terminate the Agreement if the Contractor does
not remedy the breach within ten days after receipt of notice of breach from
the Owner.
ARTICLE XV
OWNERSHIP OF PLANS; REPRESENTATIONS AND WARRANTIES
SECTION 15.1. Title to Plans and Specifications
(a) Any and all products of the Work performed by Contractor, any
Subcontractor and any of their employees under the Contract Documents, including but not
limited to, all inventions, discoveries, formulas, processes, devices, methods,
compositions, compilations, outlines, notes, reports, system plans, flow charts, source code,
and other forms of computer software including computer modeling, algorithms,
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procedures, policies, data, documentation, and other materials or information which
Contractor, any Subcontractor or any of their employees may conceive, invent, author,
create, reduce to practice, construct, compile, develop, or improve in the course of
performing the Work or otherwise delivered to Owner as part of the Work, specifically for
Owner (collectively, "Work Product") shall be the sole and exclusive property of
Contractor from and after the time it is created; provided, however, that notwithstanding
the foregoing the specific documents (including drawings, manuals and reports) and
models delivered by Contractor to Owner shall be the property of Owner for use of Owner,
its contractors and successors in operating and maintaining the Facility and in
administering these Contract Documents(and not for duplication of the Facility, in whole
or part), and Owner agrees to treat such as Confidential Information. Contractor and all
Subcontractors shall retain all rights and title in all Intellectual Property, which shall
include by way of example, its standard drawing details, designs, specifications, databases,
computer software, all preexisting or independently developed Intellectual Property,
Intellectual Property conceived, created, or first reduced to practice by Contractor in the
performance of this Agreement, and all know-how developed in the course of performing
the Work and any other proprietary and intellectual property, whether or not such
Intellectual Property is used or incorporated into the Work, either alone or in contribution
from Owner("Contractor Intellectual Property").
(b) License. To the extent Contractor Intellectual Property is incorporated into
the Work pursuant to the Contract Documents and necessary for Owner to fully utilize the
Work, Contractor will obtain and grant to Owner upon Substantial Completion (together
with its successors and assigns) a perpetual, non -transferable, non-exclusive, royalty free
license in Contractor Intellectual Property and all Work Product, including any and all
related patent, copyright, trademark, and other property or proprietary rights of any nature
whatsoever to use such Work Product for the limited purposes of operation and
maintenance of the Plant. Contractor shall use commercially reasonable efforts to obtain
for the benefit of Owner a similar license from any Major Subcontractor, as may be
necessary for Owner to operate, monitor and maintain the Plant in accordance with Prudent
Utility Practice. Contractor further agrees that the sums paid to Contractor by Owner in
connection with Contractor's performance of the Work serve, in part, as full consideration
for the foregoing license, and that said consideration is fair and reasonable, and was
bargained for by Contractor. Contractor represents that it has full right, power and
authority to grant the license granted under this Section.
(c) Knowledge. Nothing in this Section should be construed to prohibit
Contractor or Subcontractor from using its skills, knowledge and experience that have a
general applicability, including such skills, knowledge or experience gained by Contractor
or any Subcontractor in connection with performing services for Owner in performing
services for other clients; provided, however, that Contractor's or any Subcontractor's
knowledge or use thereof shall not include any Confidential Information of Owner.
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(d) Use of Work Product. Owner agrees not to use any Contractor Intellectual
Property or any Work Product subject to the provisions of Section 15.1(a), including any
drawings, specifications, reports or any unique design aspects of the Project in any other
project without the prior written approval of Contractor.
(e) Contractor Indemnity. Contractor agrees to indemnify and hold
Owner harmless, to the fullest extent permitted under Applicable Law, against any
claim that the Work Product infringes on the intellectual property rights of a third
party or was misappropriated from a third party, expect to the extent such Work
Product was modified by Owner, including any modifications directed by Owner, and
such modification resulted in the claim.
(f) Survivability. The obligations of this Section shall survive any termination
of this Contract
SECTION 15.2. Confidentiality
Neither Party shall disclose any Confidential Information to a third party, other than
(a) such Party's employees, lenders, counsel, accountants, advisors, rating agencies, equity
investors, subcontractors and affiliates, potential lenders or potential equity investors who have a
need to know such information with respect to the performance of the relevant Parry's obligations
under this Agreement and have agreed to keep such terms confidential; or (b) in order to comply
with any Applicable Law, regulation, or any exchange, control area or ISO rule, or order issued by
a Governmental Authority with competent jurisdiction over the disclosing Party ("Disclosing
Party"). In connection with disclosures pursuant to clause (b), each Parry shall, to the extent
practicable, use reasonable efforts to: (i) notify the other Parry prior to disclosing the Confidential
Information and (ii) prevent or limit such disclosure. After using such reasonable efforts, the
Disclosing Party shall not be: (i) prohibited from complying with a disclosure order or making the
regulatory disclosures or (ii) liable to the other Parry for monetary or other damages incurred in
connection with such disclosures of the Confidential Information. Except as provided in the
preceding sentence, the Parties shall be entitled to all remedies available at law or in equity to
enforce, or seek relief in connection with, this confidentiality obligation. The confidentiality
obligation hereunder shall not apply to any information that was or hereafter becomes available to
the public other than as a result of a disclosure in violation of this Section 15.2. If this Agreement
is terminated pursuant to Article X, each Party will promptly return or certify the destruction of,
if so requested by the other Party, any Confidential Information provided to it and will use
commercially reasonable efforts to return any copies thereof that may have been provided to others
in accordance with this Section 15.2. The obligations of the Parties in this Section 15.2 will
survive the termination of this Agreement and the discharge of all other obligations owed by the
Parties to each other.
SECTION 15.3. Owner's Representations and Warranties. Owner hereby represents and
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(a) Corporate Matters. Owner is a home -rule municipal corporation duly
organized, validly existing and in good standing under the laws of the State of Texas.
Owner has all the requisite corporate power and authority to conduct its business and to
own, lease and operate its properties as presently conducted, owned or leased. Owner
has all requisite legal power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder.
(b) Validity of Agreement; No Conflicts. The execution, delivery and
performance of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized and approved by all requisite corporate
action on the part of Owner. This Agreement constitutes a legal, binding and valid
obligation of Owner, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect that affect creditors' rights
generally and by legal and equity principles relating to the availability of specific
remedies. The execution and performance by Owner of this Agreement, the
consummation of the transactions contemplated hereby, and the compliance with the
provisions hereof by Owner will not (a) conflict with, constitute a breach of, or violate
any provision of the formation, charter, organizational or governing documents of
Owner or violate in any material respect any Law applicable to it, (b) require Owner to
file or obtain any Permit with or from any Governmental Authority which has not
already been filed or obtained or (c) require any consent under or constitute a breach or
default under any material contract to which Owner is a party or any of its assets,
properties or businesses is bound.
(c) No Litigation. There is no action, claim, suit or proceeding by or before any
Governmental Authority pending, or to the actual knowledge of Owner, threatened that
seeks to prevent the consummation of, or that would materially adversely affect the
ability of Owner to consummate, the transactions contemplated hereby.
SECTION 15.4. Representations and Warranties of Contractor.
(a) Corporate Matters. Contractor is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of Delaware.
Contractor has all the requisite corporate power and authority to conduct its business
and to own, lease and operate its properties as presently conducted, owned or leased.
Contractor has all requisite legal power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to perform its
obligations hereunder.
(b) Validity of Agreement; No Conflicts. The execution, delivery and
performance of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized and approved by all requisite corporate
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action on the part of Contractor. This Agreement constitutes a legal, binding and valid
obligation of Contractor, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect that affect creditors' rights
generally and by legal and equity principles relating to the availability of specific
remedies. The execution and performance by Contractor of this Agreement, the
consummation of the transactions contemplated hereby, and the compliance with the
provisions hereof by Contractor will not (a) conflict with, constitute a breach of, or
violate any provision of the formation, charter, organizational or governing documents
of Contractor or violate in any material respect any Law applicable to it, (b) require
Contractor to file or obtain any Permit with or from any Governmental Authority which
has not already been filed or obtained or (c) require any consent under or constitute a
breach or default under any material contract to which Contractor is a parry or any of its
assets, properties or businesses is bound.
(c) No Litigation. There is no action, claim, suit or proceeding by or before any
Governmental Authority pending, or to the actual knowledge of Contractor, threatened
that seeks to prevent the consummation of, or that would materially adversely affect the
ability of Contractor to consummate, the transactions contemplated hereby.
(d) Expertise and Capability. Contractor has substantial experience and
expertise in the engineering and design of GIS substations, and installation of, GIS
Equipment and the capability to carry out its obligations under this Agreement.
Contractor acknowledges that Owner is relying upon such experience, expertise and
capability in executing this Agreement. Contractor has the financial resources,
personnel, equipment, and other resources necessary to perform the Work under this
Agreement on a timely basis.
ARTICLE XVI
FORCE MAJEURE
SECTION 16.1. Force Majeure
"Force Majeure" shall mean any event or circumstance to the extent beyond the
control of, and not the result of the negligence of, or caused by, the Party seeking to have its
performance obligation excused thereby, which by the exercise of due diligence such Party could
not reasonably have been expected to avoid and which by exercise of due diligence it has been
unable to overcome, including but not limited to (but only to the extent that the following examples
satisfy all of the foregoing elements of this definition):
(a) acts of God, such as droughts, floods, earthquakes, hurricanes,
tornadoes, fires (but not including fires caused by the negligent or willful acts or
omissions of Contractor or its Subcontractors or fires caused by improper
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installation, or operation during testing), epidemic and pandemic (including impacts
of the current COVID-19 pandemic which arise after the effective date of this
Agreement);
(b) war (declared or undeclared), riots, insurrection, rebellion, acts of
the public enemy and other forms of civil unrest, acts of terrorism and sabotage,
blockades, and embargoes; and
(c) industry -wide, regional or general (i.e., not directed specifically at
or by the Party claiming Force Majeure) strikes, lockouts or other labor disputes.
Notwithstanding the foregoing, Force Majeure shall not include (A) weather conditions reasonably
to be expected for the climate in the geographic area of the Site where the Work is to be performed,
(B) any delay, default or failure (direct or indirect) in the performance of the Work by any
Subcontractor or any other delay, default or failure (financial or otherwise) attributable to a
Subcontractor unless such delay, default or failure results from any act, event or condition which
would, with respect to such Subcontractor, constitute an event of Force Majeure, (C) failure to
timely apply for Permits, (D) breakage or malfunction of equipment (except to the extent that such
failure was caused by an event that would otherwise qualify as a Force Majeure), or (E) a Party's
financial inability to perform under this Agreement.
SECTION 16.2. Applicability of Force Majeure
(a) Notwithstanding any terms herein to the contrary, neither Party shall be
responsible or liable for any delay or failure in its performance under this
Agreement, nor shall any delay, failure, or other occurrence or event become an
event of default, to the extent such delay, failure, occurrence or event is substantially
caused by conditions or events of Force Majeure; provided, that:
(i) the non-performing Parry gives the other Party notice within the four
(4) days after the date on which the non-performing Parry becomes aware of the
impact of an event of Force Majeure on the affected Party and documentary
evidence with respect to such event of Force Majeure promptly but in no event later
than twenty-eight (28) days after such initial notice;
(ii) the suspension of performance is of not greater scope and of no
longer duration than is required by the Force Majeure;
(iii) the non-performing Party proceeds with reasonable diligence to use
all reasonable efforts to mitigate the effects of the Force Majeure and to remedy its
inability to perform and provides weekly progress reports to the other Parry
describing actions taken to end the Force Majeure;
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(iv) when the non-performing Party is able to resume performance of its
obligations under this Agreement, that Party shall give the other Party written notice
to that effect; and
(v) the affected Parry shall continue to perform its other obligations
hereunder not affected by such Force Majeure.
ARTICLE XVII
OTHER PROVISIONS
SECTION 17.1. Assignment
This Agreement and all provisions hereof shall inure to and be binding upon the
respective Parties, their successors, and assigns. Since Contractor was selected to perform the
Work covered by this Agreement based on its professional and creditworthiness qualifications,
among other considerations, Contractor shall not assign this Agreement or any part hereof without
the prior written consent of Owner which shall not be unreasonably withheld, conditioned or
delayed; provided, however, that Contractor may (i) subcontract the Work in accordance with the
terms hereof, and (ii) assign its accounts receivable without consent of Owner. Owner shall have
the right, with Contractor's consent which shall not be unreasonably withheld, to assign its interests
in this Agreement (i) as security to entities providing financing for the Facility, or (ii) to any
Affiliate of Owner. Notwithstanding the foregoing, this Agreement may be assigned without
consent to the successor of either Parry, or to a person, firm or corporation acquiring all or
substantially all of the business assets of such Party or to a wholly-owned subsidiary of either
Parry.
SECTION 17.2. Independent Contractor
In performing the Work, Contractor is acting as, and shall be deemed for all
purposes to be, an independent contractor. Owner and Contractor are not partners, agents or joint
ventures with each other, and this Agreement is not intended to nor shall it be construed to create
a partnership, joint venture, or agency relationship between Owner and Contractor. Contractor
shall complete the Work according to Contractor's own procedures, techniques, sequences, means
and methods of work, which shall be in the exclusive charge and control of Contractor, and which
shall not be subject to the control and supervision of Owner, except as to the results of the Work.
Contractor shall be entirely and solely responsible for its acts and the acts of its employees and
agents while engaged in the performance of the Work. Except as allowed by this Agreement,
Contractor, its employees and agents shall not hold themselves out as employees or agents of
Owner. Contractor and its employees are hereby expressly precluded from and not entitled to any
employee benefits from Owner. For the purpose of clarifying the ineligibility of the Contractor
under Owner's employee benefits plans or programs, Contractor and its employees are hereby
specifically excluded from any eligibility and/or are deemed a "temporary employee" when such
term is used to define ineligibility in benefits in any Owner employee benefit plan or program.
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SECTION 17.3. No Waiver
No term, covenant or condition of the Contract Documents or any breach thereof
shall be deemed waived, unless such waiver shall be in writing and executed by the Parry claimed
to have waived the same. The waiver of any breach by a Party, whether express or implied, shall
not constitute a waiver of any subsequent breach.
SECTION 17.4. Gratuities
Contractor shall not, under any circumstances, extend any gratuity or special favor
to employees of Owner that might be reasonably construed as an attempt to influence the recipients
in the conduct of their official duties.
SECTION 17.5. Severability
If a court or regulatory agency or arbitrator having jurisdiction over the Parties
determines that a condition of this Agreement, or any part thereof, is void, illegal or unenforceable,
said condition or part shall be deemed to have been severed from this Agreement, and the
remaining conditions, or parts, shall be unaffected and shall be enforced to the fullest extent
allowed by law.
SECTION 17.6. Governing Law
This Agreement shall be governed and interpreted in accordance with the laws of
the State of Texas, without regard to the conflicts of law rules of that State that would require the
application of the laws of another jurisdiction.
SECTION 17.7. Counterparts
This Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall together constitute but
one and the same instrument. Owner may retain a duplicate copy (e.g., electronic image,
photocopy, facsimile) of this Agreement, which shall be considered an equivalent to this original.
SECTION 17.8. Entire Agreement
The Contract Documents represent the entire agreement and understanding
between Owner and Contractor with respect to the subject matter hereof and performance of the
Work, and supersede any prior understandings, representations or agreements, whether verbal or
written, prior to execution of this Agreement. No prior course of dealing between the Parties shall
form part of, or be used in the interpretation or construction of, any of the Contract Documents.
Headings and titles of Sections, paragraphs and other subparts of this Agreement are for
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convenience of reference only and shall not be considered in interpreting the text of this
Agreement. Modifications or amendments to this Agreement must be in writing and executed by
a duly authorized representative of each Party. The Contract Documents set forth the full and
complete understanding of the Parties as of the date first above stated, and it supersedes any and
all agreements and representations made or dated prior thereto. In the event of conflict between
the Contract Documents and any of the Exhibits hereto, the terms and provisions of the Contract
Documents shall control. In the event of any conflict among the Exhibits, the Exhibit of the latest
date shall control.
SECTION 17.9. Agreement Authors
This Agreement has been agreed to by the Parties and no ambiguity shall be
construed against any Party based on the identity of the author or authors of this Agreement. THE
PARTIES ACKNOWLEDGE AND AGREE THE TERMS AND CONDITIONS OF THIS
AGREEMENT HAVE BEEN FREELY, FAIRLY AND THOROUGHLY NEGOTIATED.
FURTHER, THE PARTIES ACKNOWLEDGE AND AGREE SUCH TERMS AND
CONDITIONS, INCLUDING BUT NOT LIMITED TO THOSE RELATING TO WAIVERS,
ALLOCATIONS OF, RELEASES FROM, INDEMNITIES AGAINST AND LIMITATIONS OF
LIABILITY, WHICH MAY REQUIRE CONSPICUOUS IDENTIFICATION, HAVE NOT
BEEN SO IDENTIFIED BY MUTUAL AGREEMENT AND THE PARTIES HAVE ACTUAL
KNOWLEDGE OF THE INTENT AND EFFECT OF SUCH TERMS AND CONDITIONS.
EACH PARTY ACKNOWLEDGES THAT IN EXECUTING THIS AGREEMENT THEY
RELY SOLELY ON THEIR OWN JUDGMENT, BELIEF, AND KNOWLEDGE, AND SUCH
ADVICE AS THEY MAY HAVE RECEIVED FROM THEIR OWN COUNSEL, AND THEY
HAVE NOT BEEN INFLUENCED BY ANY REPRESENTATION OR STATEMENTS MADE
BY ANY OTHER PARTY OR ITS COUNSEL. NO PROVISION IN THIS AGREEMENT IS
TO BE INTERPRETED FOR OR AGAINST ANY PARTY BECAUSE THAT PARTY OR ITS
COUNSEL DRAFTED SUCH PROVISION.
SECTION 17.10. Survival of Obligations
The provisions of this Agreement which by their nature are intended to survive the
termination, cancellation, completion or expiration of the Agreement, including but not limited to
any expressed limitations of or releases from liability, shall continue as valid and enforceable
obligations of the Parties notwithstanding any such termination, cancellation, completion or
expiration. Specifically, Contractor's warranty obligations under Article VI "Inspection &
Warranty" and indemnity obligations, including those under Articles IV, XII, and XVI
"Compensation", "Liability", and "Other Provisions" and Section 13.4 "Hazardous Materials",
respectively, of this Agreement, and all other warranty and performance obligations, guaranties,
and indemnity obligations in the Contract Documents shall survive any termination of the
Agreement, and the suspension, completion and acceptance of the Work, or any part thereof, or
final payment to Contractor, it being agreed that said obligations and rights are and shall be of a
continuing nature. The terms of Article XI "Dispute Resolution" and this Article XVII shall also
survive termination, suspension and completion of this Agreement.
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SECTION 17.11. No Third Party Beneficiaries
There are no third party beneficiaries to this Agreement and no third person or
entity shall claim that any portion of this Agreement creates a duty running to that third person or
entity. The Parties agree to look solely to each other with respect to the obligations and liability
arising in connection with this Agreement and the Work performed hereunder. This Agreement
and each and every provision hereof is for the exclusive benefit of Owner and Contractor and not
for the benefit of any third party, except to the extent such benefits have been expressly extended
pursuant to this Agreement.
SECTION 17.12. Further Assurances
Subject to the terms and conditions of this Agreement, the Parties shall use all
reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things
reasonably necessary, proper or advisable under Applicable Law to consummate the transactions
contemplated under this Agreement. Contractor shall cooperate with and provide reasonable
assistance to Owner in the financing of the Facility, including the execution of any certificates or
consent to assignment of this Agreement requested by Owner's lenders in a form consistent with
industry practice and reasonably acceptable to Contractor.
SECTION 17.13. Exclusivity of Remedies
The remedies expressly afforded by this Contract with respect to a particular matter
are intended to be the sole and exclusive remedies of the Parties to this Contract for the liabilities
of such Parties arising out of or in connection with such matter, notwithstanding any remedy
otherwise available at law or in equity.
SECTION 17.14. Right to Audit
Owner has the right to audit all of Contractor's records and billings relating to the performance of
the Work under this Agreement for compliance with any state, federal or local law that is applicable
to the Project; provided, however, that Contractor shall have the right to redact such records to
remove confidential and proprietary pricing information on lump sum billings to the extent such
information is not required to document compliance with law, as well as any personally identifiable
information of individual persons. Contractor agrees to retain records related to the Project for a
minimum of five (5) years following completion of the Work. Any payment, settlement,
satisfaction, or release made or provided during the course of performance of this Agreement shall
be subject to Owner's rights as may be disclosed by an audit under this section.
SECTION 17.15. Proportionate Liability
To the extent permitted by the laws of the State of Texas and without waiving any applicable
immunity, as it pertains to the acts and/or failure to act, or any negligent or willful misconduct of
a Party in performing the Work or meeting their respective obligations pursuant to the Contract
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Documents and set forth herein, if the joint, concurring, comparative or contributory fault or
negligence of the Parties gives rise to damages for which a Party may be entitled to recover from
the other, or from any other person in connection with this Agreement, any such damage(s) or
liability shall be allocated among and between all Parties involved in proportion to their respective
degree of fault, liability, or negligence contributing to any such damage(s), as the case may be.
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EXHIBIT B
FORM OF CHANGE ORDER
CHANGE ORDER NO. Date
In accordance with Article V of that certain Engineering, Procurement and Construction
Agreement, dated (the "Agreement"), between Beta Engineering, LLC
("Contractor") and ("Owner"), Contractor Cityof Denton and Owner agree as follows:
Description of Change:
Original Contract Price $
Previous Change Orders $
Amount of this Change Order $
New Contract Price $
This Change Order will modify the Contract Completion Date as follows:
Increase Decrease No Effect Calendar Days
Capitalized terms used and not defined herein shall have the meaning set forth in
the Agreement. Except as modified hereby, the Agreement shall remain in full force and effect
and unmodified.
ACCEPTED BY CONTRACTOR ACCEPTED BY OWNER
By:
Printed Name:
Its:
By:
Printed Name:
Its:
B-1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT C
FORM OF PARTIAL LIEN WAIVERS AND RELEASE
C-1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT C-1
FORM OF PARTIAL LIEN WAIVER AND RELEASE
CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
Project
Job No.
On receipt by the signer of this document of a check from
(maker of
check) in the sum of $ payable to (payee or payees of
check) and when the check has been properly endorsed and has been paid by the bank on which it
is drawn, this document becomes effective to release any mechanic's lien right, any right arising
from a payment bond that complies with a state or federal statute, any common law payment bond
right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to
claim or payment rights for persons in the signer's position that the signer has on the property of
(owner) located at
(job description).
(location) to the following extent:
This release covers a progress payment for all labor, services, equipment, or materials
furnished to the property or to
(person with whom signer contracted) as
indicated in the attached statement(s) or progress payment request(s), except for unpaid retention,
pending modifications and changes, or other items furnished.
Before any recipient of this document relies on this document, the recipient should verify
evidence of payment to the signer.
The signer warrants that the signer has already paid or will use the funds received from this
progress payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen,
C-2
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
and suppliers for all work, materials, equipment, or services provided for or to the above referenced
project in regard to the attached statement(s) or progress payment request(s).
Date
(Company name)
By
(Signature)
(Title)
STATE OF TEXAS §
COUNTY OF
ACKNLOWLEDGED, SUBSCRIBED AND SWORN TO BEFORE ME, by
who is the of on this
the day of , 20
Notary Public In and For
The State of Texas
C-3
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
NOTICE: THIS DOC:UT�,IENT WAIVES RIGHTS UNCONDITIONALLY AND STATES
THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. IT IS PROHIBITED
FOR A PERSON TO REQUIRE YOU TO SIGN THIS DOCUMENT IF YOU HAVE NOT
BEEN PAID THE PAYMENT AMOUNT SET FORTH BELOW. IF YOU HAVE NOT
BEEN PAID, USE A CONDITIONAL RELEASE FORM.
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
Project
Job No.
The signer of this document has been paid and has received a progress payment in the sum
of $ for all labor, services, equipment, or materials furnished to the property or to
following extent:
(person with whom signer contracted) on the property of
(owner) located at
(location) to the
(job description). The signer therefore waives and
releases any mechanic's lien right, any right arising from a payment bond that complies with a state
or federal statute, any common law payment bond right, any claim for payment, and any rights
under any similar ordinance, rule, or statute related to claim or payment rights for persons in the
signer's position that the signer has on the above referenced project to the following extent:
This release covers a progress payment for all labor, services, equipment, or materials
furnished to the properly or to
(person with whom signer contracted) as
indicated in the attached statement(s) or progress payment request(s), except for unpaid retention,
pending modifications and changes, or other items furnished.
C-4
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
The signer warrants that the signer has already paid or will use the funds received from this
progress payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen,
and suppliers for all work, materials, equipment, or services provided for or to the above referenced
project in regard to the attached statement(s) or progress payment request(s).
Date
(Company name)
By
(Signature)
(Title)
STATE OF TEXAS §
COUNTY OF §
the
ACKNLOWLEDGED, SUBSCRIBED
who is the
day of , 20
AND SWORN TO BEFORE ME, by
of on this
Notary Public In and For
The State of Texas
C-5
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT C-2
FORM OF FINAL LIEN WAIVER AND RELEASE
C-6
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
Project
Job No.
On receipt by the signer of this document of a check from
check) in the sum of $
payable to
(maker of
(payee or payees of
check) and when the check has been properly endorsed and has been paid by the bank on which it
is drawn, this document becomes effective to release any mechanic's lien right, any right arising
from a payment bond that complies with a state or federal statute, any common law payment bond
right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to
claim or payment rights for persons in the signer's position that the signer has on the property of
following extent:
(owner) located at
(job description).
(location) to the
This release covers the final payment to the signer for all labor, services, equipment, or
materials furnished to the property or to
contracted).
(person with whom signer
Before any recipient of this document relies on this document, the recipient should verify
evidence of payment to the signer.
The signer warrants that the signer has already paid or will use the funds received from this
final payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided for or to the above referenced
project up to the date of this waiver and release.
Date
C-7
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
(Company name)
By
(Signature)
(Title)
STATE OF TEXAS
COUNTY OF
the
ACKNLOWLEDGED, SUBSCRIBED
who is the
day of , 20
AND SWORN TO BEFORE ME, by
of on this
Notary Public In and For
The State of Texas
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7537E174F3B0
NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES
THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. IT IS PROHIBITED
FOR A PERSON TO REQUIRE YOU TO SIGN THIS DOCUMENT IF YOU HAVE NOT
SEEN PAID THE PAYMENT AMOUNT SET FORTH BELOW. IF YOU HAVE NOT
BEEN PAID, USE A CONDITIONAL RELEASE FORM.
UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
Project
Job No.
The signer of this document has been paid in full for all labor, services, equipment, or
materials furnished to the property or to
contracted) on the property of
(location) to the following extent:
description).
(person with whom signer
(owner) located at
(job
The signer therefore waives and releases any mechanic's lien right, any right arising from
a payment bond that complies with a state or federal statute, any common law payment bond right,
any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim
or payment rights for persons in the signer's position.
The signer warrants that the signer has already paid or will use the funds received from this
final payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided for or to the above referenced
project up to the date of this waiver and release.
Date
C-9
DocuSign Envelope ID: D5F87594-CD3P-4C2C-93CF-7637E174F3B0
(Company name)
By
(Signature)
(Title)
STATE OF TEXAS
COUNTY OF
the
ACKNLOWLEDGED, SUBSCRIBED AND SWORN TO BEFORE
day of
who is the
.20
of
Notary Public In and For
The State of Texas
ME, by
on this
C-10
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT D-1
FORM OF MECHANICAL COMPLETION CERTIFICATE
[ 1, a [ I ("Contractor") does hereby certify that Mechanical
Completion has been achieved in accordance with the terms of the Agreement.
IN WITNESS WHEREOF, Contractor has caused this Certificate of Substantial
Completion to be duly executed and delivered this day of
By:
Printed Name:
Its:
D-1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT D-2
FORM OF SUBSTANTIAL COMPLETION CERTIFICATE
[ 1, a [ ] ("Contractor") does hereby certify that Substantial
Completion has been achieved in accordance with the terms of the Agreement.
IN WITNESS WHEREOF, Contractor has caused this Certificate of Substantial
Completion to be duly executed and delivered this day of
By:
Printed Name:
Its:
D-2
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT D-3
FORM OF FINAL COMPLETION CERTIFICATE
[ 1, a [ 1 ("Contractor") does hereby certify that
Final Completion of the Facility has been achieved in accordance with the terms of the Agreement.
IN WITNESS WHEREOF, Contractor has caused this Certificate of Final Completion
to be duly executed and delivered this day of
By:
Printed Name:
Its:
D-3
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT E-1 LNTP
January
[Contractor Name]
[Address]
[Address]
Telephone:
Facsimile:
Attention: r 1
Subject: Hickory GIS Substation
Design/Build Agreement
Limited Notice to Proceed ("LNTP Agreement")
City of Denton ("Owner") hereby notifies Beta Engineering, LLC. ("Contractor", together with Owner,
the "Parties") that, subject to the terms of this LNTP Agreement, Contractor is authorized to perform
certain preliminary work as described below.
RECITALS
WHEREAS, the Parties have entered into that certain Engineering, Design/Build Agreement
(the "Contract") dated as of r ], 20[] for the Hickory GIS Substation. Capitalized but
undefined terms have the meaning set forth in the "Contract", and the terms of the "Contract" shall
govern this LNTP Agreement as if fully set forth herein.
WHEREAS, pursuant to Section [ of the "Contract", Owner hereby authorizes Contractor
to commence certain limited portions of the Work, as further specified below.
WHEREAS, this LNTP Agreement is intended to allow the Contractor to proceed with certain
preliminary work ("LNTP Work") authorized by Owner pending Owner's authorization of a full Notice
to Proceed pursuant to the "Contract" .
NOW, THEREFORE, in consideration of the mutual promises and obligations set forth
below, the Parties agree as follows:
1. NOTICE TO PROCEED
1.1 Owner hereby directs Contractor to commence the LNTP Scope of Work (as hereinafter defined)
in accordance with all terms of the "Contract" and the LNTP Pricing Schedule attached as Exhibit
B and Scope of Work attached as Exhibit A. Contractor shall commence performing the LNTP
Work immediately upon the execution of this LNTP Agreement.
1.2 Contractor shall not incur any costs during the performance of the LNTP Work to be paid by the
Owner in excess of $4,355,263 Dollars without obtaining prior written approval from the Owner.
2. EPC CONTRACT
4892-7421-6708, v. 1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
2.1 The LNTP Work shall be merged into and included within the "Contract" and the "Contract" will
supersede this LNTP Agreement and will apply retroactively to all matters pertaining to the LNTP
Work, except as expressly provided otherwise in the "Contract".
2.2 The capitalized terms used, but not defined herein, shall have the meanings ascribed thereto in the
"Contract", and the "Contract" shall govern this LNTP as if fully set forth herein.
3. SCOPE OF WORK
3.1 Subject to any limitations set forth in this LNTP Agreement, the Owner authorizes Contractor to
proceed with the LNTP Work as more fully described in Exhibit A attached hereto.
3.2 This scope is sufficient to permit Contractor to maintain the contemplated schedule for the Project.
3.3 If additional preliminary work is required to support the "Contract" project schedule, the Parties
may negotiate further agreements in substantially the same form as this LNTP.
4. PAYMENT
Owner shall pay Contractor the amounts in accordance with the Payment Schedule attached hereto
as Exhibit B. Contractor shall invoice the Owner monthly with respect to the LNTP Work covered
therein. Within thirty (30) days of receiving an invoice in satisfactory form, the Owner shall make
payment of all undisputed amounts indicated on the invoice.
5. AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended or waived only with the written consent of both
parties.
6. SOLE AGREEMENT
This Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and
supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
7. NOTICES
Any notice required or permitted by this Agreement shall be in writing, signed by the party giving
such notice, and shall be deemed sufficient upon receipt, when delivered personally or by courier,
overnight delivery service or confirmed facsimile, if such notice is addressed to the parry to be
notified at such parry's address or facsimile number as set forth below. The effective date of any
notice issued pursuant to this Agreement shall be as of the addressee's receipt of such notice.
To Owner: As set forth in the "Contract".
To Contractor: As set forth in the "Contract".
8. SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the
parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach
a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall
4892-7421-6708, v. 1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such
provision were so excluded and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
9. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together will constitute one and the same instrument.
10. ADVICE OF COUNSEL
EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH
PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
11. GOVERNING LAW
This LNTP Agreement is governed by the laws of the State of Texas.
4892-7421-6708, v. 1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
[OWNER NAME]
By:
Name:
Title:
Acceptance
The terms and conditions of this LNTP Agreement are hereby accepted by Contractor on , 20_
[CONTRACTOR NAME]
IC
Name:
Title:
4892-7421-6708, v. 1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
Exhibit A
Scope of Work
Contactor Services
Engineering
SITE DEVELOPMENT — THROUGH IFC
- Design Packages
- Stormwater Pollution Prevention Plan (SWPPP)
- Grading Plan and Details
- Subsurface Drainage Plan and Details
- Finish Grading Plan and Details
- Access Drive Plan and Details
- Retaining Wall Details
- Landscaping and Irrigation Plan
- Landscaping and Irrigation Details
GIS BUILDING — THROUGH IFC
- Design Packages
- Code Information
- Cover Sheet
- Site Plan
- Floor Plan
- Reflected Ceiling Plan, Finish Plan, Roof Plan
- Exterior Elevations
- Building Sections
- Wall Sections
- Details
- Door Schedule
- Legend and Notes - Electrical
- One -Line Diagram
- Floor Plan - Lighting
- Floor Plan - Power
- Floor Plan - Power to mechanical
- Schedules - Mechanical
- First Floor Plan - HVAC
- Roof Plan - HVAC
- General Notes
- Typical Details - Foundation
- Typical Details - Foundation Schedules
- Typical Details - Tilt -Wall Panel
- Typical Details - Masonry
- Foundation Plan
- Roof Framing Plan
- Foundation Details
PRELIMINARY ENGINEERING TO SUPPORT PERMITTING
- Outdoor Substation Drawings
- 13 8k GIS Drawings
- Screen Wall Drawings
4892-7421-6708, v. 1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
Procurement
GENERAL
- Performance and Payment Bond
- Builder's Risk Insurance
138kv GIS
- Issue Purchase Order
138/13.2kV Transformer
- Issue Purchase Order
4892-7421-6708, v. 1
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DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT E-2 LNTP
[Date], 20
[Contractor Name]
[Address]
[Address]
Telephone:
Facsimile:
Attention:
Subject: Hickory GIS Substation
Design/Build Agreement
Full Notice to Proceed ("FNTP Agreement")
City of Denton ("Owner") hereby notifies Beta Engineering, LLC. ("Contractor"), together with
Owner, the "Parties") that Contractor is authorized to proceed as described below.
WHEREAS, the Parties have entered into that certain Design/Build Agreement (the "Contract")
dated as of [ ], 20r for the Hickory GIS Substation. Capitalized but undefined terms have
the meaning set forth in the "Contract", and the terms of the "Contract" shall govern this FNTP
Agreement as if fully set forth herein.
NOW, THEREFORE, pursuant to Section of the "Contract", Owner hereby directs
Contractor to fully perform the "Contract" Scope of Work in accordance with all terms of the "Contract"
and Exhibits attached thereto.
[OWNER NAME]
By:
Name:
Title:
Acceptance
The terms and conditions of this FNTP Agreement are hereby accepted by Contractor on , 20_
[CONTRACTOR NAME]
By:
Name:
Title:
4883-0316-9796, v. 1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT F
PERMITS
Contractor and Owner shall be each responsible for obtaining and maintaining all permits with
respect to the Facility as specified in the following table:
F-1
Permit, License,
Approval
DME
Design Build
Approval Name
Authority
Firm
1
Preliminary Plat
City of
X
Denton
2
Final Plat
City of
X
Denton
3
Driveway/Curb Cut
City of
X
Permit
Denton
4
Clearing & Grading
City of
X
Permit
Denton
5
Drilled Pier Permit
City of
X
Denton
6
Foundation Permit
City of
X
Denton
7
Building Permit
City of
X
Denton
8
Fence/Wall Permit
City of
X
Denton
9
Electric Generating Air
TCEQ
N/A
N/A
Quality Standard Permit
10
NPDES Permit for
TCEQ
N/A
N/A
Construction Activities
11
Aeronautical
FAA
N/A
N/A
Obstruction Clearance
F-1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
12
US Army Corps of
USAGE/
N/A
N/A
Engineers (USACE)
TCEQ
Section 404/401 Permit
F-2
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DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT H
FORM OF PERFORMANCE SECURITY
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
PERFORMANCE BOND
Page 1 of 2
EXfHBIT H-1
FORM OF PERFORMANCE BOND
1
2 PERFORMANCE BOND
3
4 THE STATE OF TEXAS §
5 § KNOW ALL BY THESE PRESENTS:
6 COUNTY OF DENTON §
7
8 That we, , known as
9 "Principal" herein and , a corporate
10 surety(sureties, if more than one) duly authorized to do business in the State of Texas, known as
11 "Surety" herein (whether one or more), are held and firmly bound unto the City of Denton, a
12 municipal corporation created pursuant to the laws of Texas, known as "City" herein, in the penal
13 sum of, Dollars
14 ($ ), lawful money of the United States, to be paid in Denton, Denton
15 County, Texas for the payment of which sum well and truly to be made, we bind ourselves, our
16 heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these
17 presents.
18 WHEREAS, the Principal has entered into a certain written contract with the City
19 awarded the day of , 20_, which Contract is hereby referred to and
20 made a part hereof for all purposes as if fully set forth herein, to furnish all design, materials, equipment
21 labor and other accessories defined by law, in the prosecution of the Work, including any Change
22 Orders, as provided for in said Contract designated as
24 NOW, THEREFORE, the condition of this obligation is such that if the said Principal
25 shall faithfully perform it obligations under the Contract and shall in all respects duly and
26 faithfully perform the Work, including Change Orders, under the Contract, according to the plans,
27 specifications, and contract documents therein referred to, and as well during any period of
28 extension of the Contract that may be granted on the part of the City, then this obligation shall be
29 and become null and void, otherwise to remain in full force and effect.
30 PROVIDED FURTHER, that if any legal action be filed on this Bond, venue shall lie in
31 Denton County, Texas or the United States District Court for the Eastern District of Texas,
32 Sherman Division.
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
PERFORMANCE BOND
Page 2 of 2
1 This bond is made and executed in compliance with the provisions of Chapter 2253 of the
2 Texas Government Code, as amended, and all liabilities on this bond shall be determined in
3 accordance with the provisions of said statue.
4 IN )VITNESS M'HEREO , the Principal and the Surety have SIGNED and SEALED
5 this instrument by duly authorized agents and officers on this the day of
6 , 20
7
8
9
10
11
12
13 ATTEST:
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
(Principal) Secretary
Witness as to Principal
Witness as to Surety
PRINCIPAL:
V'�
Signature
Name and Title
Address:
SURETY:
BY:
Signature
Name and Title
Address:
Telephone Number:
*Note: If signed by an officer of the Surety Company, there must be on file a certified extract
from the by-laws showing that this person has authority to sign such obligation. If
Surety's physical address is different from its mailing address, both must be provided.
The date of the bond shall not be prior to the date the Contract is awarded.
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT H-2
FORM OF PAYMENT BOND
1
2
3
4 THE STATE OF TEXAS
5
6 COUNTY OF DENTON
PAYMENT BOND
Pagel of 2
PAYMENT BOND
§ KNOW ALL BY THESE PRESENTS:
7 That we, known as
8 "Principal" herein, and , a
9 corporate surety (sureties), duly authorized to do business in the State of Texas, known as
10 "Surety" herein (whether one or more), are held and firmly bound unto the City of Denton, a
11 municipal corporation created pursuant to the laws of the State of Texas, known as "City" herein,
12 in the penal sum of Dollars
13 ($ ), lawful money of the United States, to be paid in Denton, Denton
14 County, Texas, for the payment of which sum well and truly be made, we bind ourselves, our
15 heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these
16 presents:
17 WHEREAS, Principal has entered into a certain written Contract with City, awarded the
18 day of , 20_—_, which Contract is hereby referred to and
19 made a part hereof for all purposes as if fully set forth herein, to furnish all design, materials, equipment,
20 labor and other accessories as defined by law, in the prosecution of the Work as provided for in
21 said Contract and designated. _
22 NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if
23 Principal shall pay all monies owing to any (and all) payment bond beneficiary (as defined in
24 Chapter 2253 of the Texas Government Code, as amended) in the prosecution of the Work under
25 the Contract, then this obligation shall be and become null and void; otherwise to remain in full
26 force and effect.
27 This bond is made and executed in compliance with the provisions of Chapter 2253 of the
28 Texas Government Code, as amended, and all liabilities on this bond shall be determined in
29 accordance with the provisions of said statute.
30
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
DoeuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
PAYMENTBOND
Pale 2 of 2
1 IN WITNESS WHEREOF, the Principal and Surety have each SIGNED and SEALED
2 this instrument by duly authorized agents and officers on this the day of
3 ,20
4
ATTEST:
(Principal) Secretary
Witness as to Principal
ATTEST:
(Surety) Secretary
Witness as to Surety
PRINCIPAL:
BY:
Signature
Name and Title
Address:
SURETY:
BY:
Signature
Name and Title
Address:
Telephone Number:
5
6 Note: If signed by an officer of the Surety, there must be on file a certified extract from the
7 bylaws showing that this person has authority to sign such obligation. If Surety's physical
8 address is different from its mailing address, both must be provided.
9
10 THE DATE OF THE BUND SHALL NOT BE PRIOR
11 TO THE DATE THE CONTRACT IS AWARDED.
12 END OF SECTION
13
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
MAINTENANCE BOND
Pagel of 3
EXHIBIT H-3
FORM OF MAINTENANCE BOND
1
2 MAINTENANCE BOND
3
4 THE STATE OF TEXAS §
5 § KNOW ALL BY THESE PRESENTS:
6 COUNTY OF DENTON §
7 That we , known as
8 "Principal" herein and a corporate surety
9 (sureties, if more than one) duly authorized to do business in the State of Texas, known as
10 "Surety" herein (whether one or more), are held and firmly bound unto the City of Denton, a
11 municipal corporation created pursuant to the laws of the State of Texas, known as "City" herein,
12 in the sum of Dollars
13 ($ ), lawful money of the United States, to be paid in Denton, Denton
14 County, Texas, for payment of which sum well and truly be made unto the City and its
15 successors, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly
16 and severally, firmly by these presents.
17
18 WHEREAS, the Principal has entered into a certain written contract with the City awarded
19 the day of , 20 , which Contract is hereby
20 referred to and a made part hereof for all purposes as if fully set forth herein, to furnish all
21 design, materials, equipment labor and other accessories as defined by law, in the prosecution of the
22 Work, including any Work resulting from a duly authorized Change Order (collectively herein,
23 the "Work") as provided for in said contract and designated as ; and
25
26 WHEREAS, Principal binds itself to use such materials and to so construct the Work in
27 accordance with the plans, specifications and Contract Documents that the Work is and will
28 remain free from defects in design, materials, or workmanship for and during the period of three (3) years
29 after the date of Substantial Completion of the Work and any extension thereof as provided in the Contract
("Warranty Period"); and
30
31 WHEREAS, Principal binds itself to repair or reconstruct the Work in whole or in part
32 upon receiving notice from the City of the need therefor at any time within the Warranty
33 Period.
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
34
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
MAINTENANCE BOND
Page 1 of 3
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
MAINTENANCE BOND
Page 2 of 3
1 NOW THEREFORE, the condition of this obligation is such that if Principal shall
2 remedy any defective Work that arises during the Warranty Period, for which timely notice was provided by
City, to a completion
3 satisfactory to the City, then this obligation shall become null and void; otherwise to remain in
4 full force and effect.
5
6 PROVIDED, HOWEVER, if Principal shall fail so to repair or reconstruct any timely
7 noticed defective Work, it is agreed that the City may cause any and all such defective Work to
8 be repaired and/or reconstructed with all associated costs thereof being borne by the Principal and
9 the Surety under this Maintenance bond; and
10
11 PROVIDED FURTHER, that if any legal action be filed on this Bond, venue shall lie in
12 Denton County, Texas or the United States District Court for the Eastern District of Texas,
13 Sherman Division; and
14
15 PROVIDED FURTHER, that this obligation shall be continuous in nature and
16 successive recoveries may be had hereon for successive breaches.
17
18
19
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
MAINTENANCE BOND
Page 3 of 3
I IN WITNESS WHEREOF, the Principal and the Surety have each SIGNED and SEALED this
2 instrument by duly authorized agents and officers on this the day of
3 , 20
4
5
6
7
8
9
10
11 ATTEST:
12
13
CITY OF DENTON
STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS
Revised September 20, 2018
PRINCIPAL:
I ya
Signature
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
MAINTENANCE BOND
Page 3 of 3
14
(Principal) Secretary
Name and Title
1 15
16
Address:
17
18
19
20
Witness as to Principal
21
SURETY:
22
23
24
25
BY:
26
Signature
27
28
29
ATTEST:
_
Name and Title
30
31
Address:
32
(Surety) Secretary
33
34
35
Witness as to Surety
Telephone Number:
36
37 *Note: If signed by an officer of the Surety Company, there must be on file a certified extract
38 from the by-laws showing that this person has authority to sign such obligation. If
39 Surety's physical address is different from its mailing address, both must be provided.
40 The date of the bond shall not be prior to the date the Contract is awarded.
41
H-4
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
EXHIBIT I
FORM OF BI -WEEKLY PROGRESS REPORT
1-1
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
CITY
OF
DENTON
City of Denton
Hickory GIS Substation
BI -WEEKLY PROGRESS REPORT
Month / Year
1-2
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
1-5
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
BI -WEEKLY PROGRESS REPORT- MONTH /YEAR
TABLE OF CONTENTS
1.0 EXECUTIVE SUMMARY.....................................................................................5
2.0 SAFETY...............................................................................................................5
3.0 PERMITS.............................................................................................................5
4.0 ENGINEERING....................................................................................................5
5.0 PROCUREMENT.................................................................................................5
6.0 CONSTRUCTION PROGRESS...........................................................................5
7.0 COMMISSIONING & TESTING...........................................................................6
8.0 PROJECT CHANGES.........................................................................................6
9.0 PROJECT SCHEDULE........................................................................................6
10.0 CRITICAL ACTION ITEMS................................................................................6
APPENDIX A - PHOTOS
APPENDIX B - PROJECT SCHEDULE
1-5
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
A X011111 u `i��1�111�1ItS� C7��
This progress report covers the project execution activities for the design, procurement and construction
of the Hickory GIS for the weeks of of XYZ.
Safety:
Schedule:
Contractual:
1.0 SAFETY
In order to track our performance, we are tracking the following safety statistics; hours worked, first aid
cases, property damage incidents and OSHA recordable incidents:
2.0 PERMITS
The permitting matrix was updated as follows:
ENGINEERING
Engineering progress for the month includes the following:
• X,Y,Z
W.114IK11;74►'uL '
Procurement Packages awarded to date:
0 CXYZ-1
Procurement Packages currently in Bid & Procurement process:
• CXYZ-2
3.0 CONSTRUCTION PROGRESS
Construction Progress for the week is as follows:
1-5
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
Civil
Structural
Mechanical
Electrical
Building
4.0 COMMISSIONING & TESTING
Update:
5.0 PROJECT CHANGES
Contractor Change Notices:
Potential Change Orders:
Executed Change Orders to date:
6.0 PROJECT SCHEDULE
The project schedule is included in Exhibit M.
a11YI :7we_-III=To] tCO. R I = I kyj&I
The Action Item list is filled out and updated through our bi-weekly coordination meetings, however,
below are Action Items that are either past due or need attention soon to avoid contract impacts:
None to report at this time.
1-5
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ElAr EXHIBIT N
4725 Highway 28 East
Pineville, LA 71360
318.487.9599
betaengineering.com
Classification
Rate Type
Unit of
Measure
Rate
President
N/A
Hour
200
Vice President
N/A
Hour
200
Project Executive
N/A
Hour
185
Senior Project Manager
N/A
Hour
175
Project Manager III
N/A
Hour
160
Project Manager 11
N/A
Hour
145
Project Manager I
N/A
Hour
130
Scheduling Specialist
N/A
Hour
120
Project Coordinator III
N/A
Hour
130
Project Coordinator II
N/A
Hour
115
Project Coordinator 1
N/A
Hour
100
Administrative Assistant
N/A
Hour
65
Construction Manager IV
N/A
Hour
160
Construction Manager III
N/A
Hour
140
Construction Manager II
N/A
Hour
120
Construction Manager I
N/A
Hour
105
Procurement Agent III
N/A
Hour
85
Procurement Agent II
N/A
Hour
80
Procurement Agent I
N/A
Hour
75
Project Engineer
N/A
Hour
155
Engineer V
N/A
Hour
155
Engineer IV
N/A
Hour
145
Engineer III
N/A
Hour
130
Engineer II
N/A
Hour
115
Engineer I
N/A
Hour
105
Technician III
N/A
Hour
120
Technician II
N/A
Hour
110
Technician I
N/A
Hour
100
Designer III
N/A
Hour
85
Designer II
N/A
Hour
75
Drafter I
N/A
Hour
65
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
Beta 2019 Rates
2/22/2019
Page 2
Classification
Rate Type
Unit of
Rate
Measure
The above rates include all direct and indirect labor costs included but not limited to
payroll taxes, benefits, insurance, workers compensation, overhead and profit.
Overtime rates will be applied to the above hourly rates at 1.5 times for all hours above
10 hours per day or 40 hours per week and for any work on weekends and holidays.
Level I Software: Structural Design,
N/A
Hour
10.00
Foundation Design, AutoCAD, Vortex,
Vibrec
Level II Software: Autodesk Revit,
N/A
Hour
20.00
Navisworks, PLS -Cad, Autodesk Inventor,
AutoCAD Electrical, AutoCAD Civil 3D,
MicroStation
Level III Software: CDEGS, SYMCAP
N/A
Hour
30.00
Reproduction — Black & White Large Scale
N/A
Each
1.50
Drawings (D Size)
Reproduction- Color Large Scale
N/A
Each
10.00
Drawings (D Size)
Documents — Black & White Single -sided
N/A
Each
0.10
Copies 8 x 11, 8 x 14
Documents — Black & White Single -sided
N/A
Each
0.25
Copies 11 x 17
Documents — Black & White Double -sided
N/A
Each
0.15
Copies 8 x 11, 8 x 14
Documents — Black & White Double -sided
N/A
Each
0.38
Copies 11 x 17
Documents — Color Single -sided Copies
N/A
Each
1.00
8x 11, 8x 14
Documents — Color Single -sided Copies
N/A
Each
2.50
11 x 17
Documents — Color Double -sided Copies
N/A
Each
1.50
8x11
Documents — Color Double -sided Copies
N/A
Each
4.00
11 x 17
Other Expenses Associated with
N/A
Each
Cost +
Outsourced Labor, Material or Equipment
10%
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
BETA. ENGINEERING, LLC
DocuSigned by:
BY:
A HMI SIGNATURE
Printed Name: George Brashear
Title: Executive vice President
318.730.4303
PHONE NUMBER
george.brashear@betaengineering.com
EMAIL ADDRESS
_2021- 827510
TEXAS ETHICS COMMISSION
1295 CERTIFICATE NUMBER
4894-5228-1604, v. 1
CITY OF ❑ ENTON, TEXAS
DocuSigned by:
C"11
BY: s,aF;nr>OA� 7ne9�
SARA HENSLEY
INTERIM CITY MANAGER
ATTEST:
ROSA RIOS, CITY SECRETARY
DocuSigned by:
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BY: —I 4GWASG66176493
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
DocuSigned by:
BY: F
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational obligations
and business terms.
DocuSigned by:
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SIGNATURE
Antonio Puente
PRINTED NAME
DME General Manager
TITLE
Electric
DEPARTMENT
DocuSign Envelope ID: D5F87594-CD3A-4C2C-93CF-7637E174F3B0
CONFLICT OF INTEREST QUESTIONNAIRE
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H..B. 23, 84th Leg., Regular Session.
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as
defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after
the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor lrnowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
l Name of vendor who has a business relationship with local governmental entity.
Beta Engineering, LLC
2 � --
Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7' business day after the
date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3 1 Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business
relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes E-1 No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government office*
named in this section AND the taxable income is not received from the local governmental entity?
F] Yes 0 No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an
officer or director, or holds an ownership of one percent or more?
F1 Yes E-1 No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4 X❑ I have no Conflict of Interest to disclose.
5
August 19, 2021
Signature of vendor doing business with the governmental entity Date