22-06622-066
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME -RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH
INFRA CONSTRUCTION, LLC, FOR THE REPLACEMENT OF THE SERVICE CENTER
COMPLEX FENCE FOR FACILITIES MANAGEMENT; PROVIDING FOR THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 7819
— AWARDED TO INFRA CONSTRUCTION, LLC, IN THE NOT -TO -EXCEED AMOUNT OF
$677,856.00).
WHEREAS, the City has solicited, received, and evaluated competitive proposals for the
replacement of the Service Center Complex fence for Facilities Management; 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
7819 Infra Construction, LLC $677,856.00
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 13,j&^ and
seconded by P11: sv , fn W; +-- This ordinance was passed and approved by the
following vote [ -7 - 0 1:
Aye Nay Abstain Absent
Mayor Gerard Hudspeth: ✓
Vicki Byrd, District 1: V
Brian Beck, District 2: L/
Jesse Davis, District 3: ,/
Alison Maguire, District 4: V/
Deb Armintor, At Large Place 5: L/
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the 1 l ' day of Jaw
GERARD HUDSPETH, MAYOR
2022.
ATTEST:
ROSA RIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
` Digitallysigned by Marcella Lunn
i 1 f ,M1 �^� ._il- Marcella Lunrygou=ennon Denton,
`� -nl fl `F1}y(t�kV email=marcella.lun..... dentortcom r -US
BY: 1 Date: 2021.12.2012:18:11-06'00'
DocuSign Envelope ID: B73973EA-4A8D-4F81-93E9-365A3FE5D4E8
CIIY
0 IFA
DENTON
Docusign City Council Transmittal Coversheet
RFP
7819
File Name
construction of service center Fence
Purchasing Contact
christa Christian
City Council Target Date
JANUARY 11, 2022
Piggy Back Option
Not Applicable
Contract Expiration
NSA
Ordinance
22-066
E
DocuSign Envelope ID: B73973EA-4A8D-4F81-93E9-365A3FE5D4E8
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND INFRA CONSTRUCTION, LLC
(RFP 7819)
THIS CONTRACT is made and entered into this date of/il/zozz by
and between Infra Construction, LLC a Texas limited liability corporation, whose address is 539
W Commerce St STE 1685, Dallas, Texas 75208, hereinafter referred to as "Contractor," and the
CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home -Rule City, hereinafter
referred to as "City," to be effective upon approval of the Denton City Council and the subsequent
execution of this Contract by the Denton City Manager, or his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Contractor shall provide construction services in accordance with the City's RFP #7819
CONSTRUCTION OF FENCE AT SERVICE CENTER, a copy of which is on file at the office
of Purchasing Agent and incorporated herein for all purposes as "Exhibit B". The Contract consists
of this written agreement and the following items which are attached hereto and incorporated
herein by reference:
(a) Special Terms and Conditions (Exhibit "A");
(b) City of Denton Request for Proposal #7819 (Exhibit "B" on rile at Office of
Purchasing Agent)
(c) General Provisions -Standard Terms and Conditions (Exhibit "C");
(d) Payment and Performance Bond Requirements (Exhibit
(e) Insurance Requirements (Exhibit "E");
(f) Contractor's Proposal (Exhibit "F");
(g) Form CIQ — Conflict of Interest Questionnaire (Exhibit "G")
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions
of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence
first to this written Contract, and then to the Contract documents in the sequential order in which
they are listed above. These documents shall be referred to collectively as "Contract Documents."
Prohibition on Contracts with Companies Boycotting Israel
Contractor acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is
prohibited from entering into a contract with a company for goods or services unless the contract contains
a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel
during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed
to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Contractor
certifies that Contractor's signature provides written verification to the City that Contractor: (1) does not
boycott Israel; and (2) will not boycott Israel during tire term of the agreement. Failure to meet or
maintain the requirements under this provision will be considered a material breach.
Contract 7819
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Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or a Foreign
Terrorist Organization
Section 2252 of the Texas Government Code restricts CITY from contracting with companies that do
business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement, Contractor
certifies that Contractor's signatureprovides written verification to the City that Contractor, pursuant to
Chapter 2252, is not ineligible to enter into this agreement and will not become ineligible to receive
payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization.
Failure to meet or maintain the requirements under this provision will be considered a material breach.
The parties agree to transact business electronically. Any statutory requirements that certain
terms be in writing will be satisfied using electronic documents and signing. Electronic signing of
this document will be deemed an original for all legal purposes.
SIGNATURE PAGE TO FOLLOW
Contract 7819
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IN WITNESS WHEREOF, the parties of these presents have executed this Contract in the year
and day first above written.
THIS AGREEMENT HAS BEEN BOTH
REVIEWED AND APPROVED as to financial
and operational obligations and business terms.
DOCUS' nod by:
Scott Gray
PRINTED NAME
Director - Airport & Facilities
TITLE
Facilities Management
DEPARTMENT
ATTEST:
ROS Q&.qlTY SECRETARY
Pl~ jz�"
By:
APPROVED AS TO LEGAL FORM:
MAC Kcu ignedby: ,CITY ATTORNEY
By:'�"'
Contract 7819
INFRA CONSTRUCTION, LLC
Docuftnedby::� "
BY:
AUTHOMM 9MNATURE
Date: 12/17/2021
Printed Name: Rohit Si ngl a
Title: President
214-906-1908
PHONE NUMBER
rsingla@infra-construction.com
EMAIL ADDRESS
_2021-825916
TEXAS ETHICS COMMISSION
CERTIFICATE NUMBER
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
Docuftned by:
By:
S� H
Sara Hensley
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EXHIBIT A
SPECIAL TERMS AND CONDITIONS
Total Contract Amount
The Contract total for services shall not exceed $677,856.00. Pricing shall be per Exhibit F
attached.
Contract Term
The Contract shall commence upon the issuance of a Notice to Proceed. Contractor shall begin
work on site within fifteen (15) calendar days of receipt of Notice to Proceed. Project shall be
complete within two -hundred, thirty (230) calendar days after work commences on site. Delays
are further discussed in the Standard Terms and Conditions Exhibit C, Section 8.3.
Special Notice and Additional Requirement(s):
1. Additional safety precautions shall be instituted by the awarded Contractor, as the work
environment will be in an area where citizens and employees may be present, and work
safety must be coordinated with the owner.
2. The Contractor shall be responsible for all spoil removals, and any excess soil that will
require removal.
3. It is understood that the basis for payment on the work to be done according to the final
plans and specifications shall be a lump sum fee as set forth in Contractor's Proposal. Any
quantity estimates supplied by Designer or Owner are intended only as a guide to the
respondent. Contractor is responsible for making his own quantity estimates and pricing
from his own examination of the work to be done.
4. A schedule of Contractor's Quantities and Unit Prices is to be filled out as a part of this
bid. Extensions of units and unit prices must total up correctly.
Liquidated Damages:
The time of the completion of construction of the project is of the essence of the contract. Should
the Contractor neglect, refuse or fail to complete the construction within the time agreed upon,
after giving effect to extensions of time, if any, herein provided, then, in that event and in view of
the difficulty of estimating with exactness damages caused by such delay, the City shall have the
right to deduct from and retain out of such money which may be then due or which may become
due and payable to the Contractor the sum of FIVE HUNDRED DOLLARS ($500.00) per day for each
and every day, including weekends, that such construction is delayed on its completion beyond the
specified time, as liquidated damages and not as a penalty; if the amount due and to become due
from the City to the Contractor is insufficient to pay in full any such liquidated damages, the
Contractor shall pay to the City the amount necessary to effect such payment in full: Provided,
however, that the City shall promptly notify the Contractor in writing of the manner in which the
amount retained, deducted or claimed as liquidated damages was computed.
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Retainage:
The City is required to withhold five percent (5%) retainage for public works contracts in which
the total contract price estimate at the time of execution is more than $400,000; however, this
requirement is applied by the City for all public works contracts in excess of $50,000.
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EXHIBIT C
CITY OF DENTON STANDARD PURCHASE TERMS AND CONDITIONS
FOR FACILITY CONSTRUCTION SERVICES
ARTICLE 1 GENERAL PROVISIONS
GENERAL DEFINITIONS
1.1 The following definitions apply throughout these General Conditions and to the other
Contract Documents:
a) THE CONTRACT DOCUNIENTS
The Contract Documents consist of the formal Building Construction Services Agreement
between the Owner and the Prime Contractor, these General Conditions and other
supplementary conditions included by special provisions or addenda, drawings,
specifications, addenda issued prior to execution of the Contract, other documents listed in
the Contract, and Amendments issued after execution of the Contract. For purposes of these
General Conditions, an Amendment is:
(1) a written Supplemental Agreement to the Contract signed by authorized representatives
of both parties;
(2) a Change Order, including Change Orders signed only by the Owner as described in
Subparagraph 7.1(b) and Subparagraph 7.1(e); or
(3) a written order for a minor change in the Work issued by the Architect/Engineer as
described in Paragraph 7.3.
The Contract Documents also include bid documents such as the Owner's Instructions to
Bidders, sample forms, the Prime Contractor's Bid Proposal and portions of addenda
relating to any of these documents, and any other documents, exhibits or attachments
specifically enumerated in the Building Construction Services Agreement, but specifically
exclude geotechnical and subsurface reports that the Owner may have provided to the
Prime Contractor.
b) THE CONTRACT
The Contract Documents, as defined in Paragraph 1. 1, are expressly incorporated into and
made a part of the formal Building Construction Services Agreement between the Owner
and the Prime Contractor by reference in this Paragraph and Paragraph 1.1 (which
documents are sometimes also referred to collectively in these General Conditions as the
"Contract"). The Contract Documents represent the entire and integrated agreement
between the Owner and the Prime Contractor and supersede all prior negotiations,
representations or agreements, either written or oral. The terms and conditions of the
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Contract Documents may be changed only by an Amendment. The Contract Documents
shall not be construed to create a contractual relationship of any kind:
(1) between the Architect/Engineer and Prime Contractor;
(2) between the Owner and a Subcontractor or -subcontractor; or
(3) between any persons or entities other than the Owner and Prime Contractor.
The Architect/Engineer shall, however, be entitled to performance and enforcement of
obligations under the Contract Documents intended to facilitate performance of the
Architect/Engineer's duties.
c) THE WORK
The term "Work" means the construction and services required by the Contract Documents,
whether completed or partially completed, and includes all labor, materials, equipment,
and services provided or to be provided by the Prime Contractor, or any Subcontractors,
Sub -subcontractors, material suppliers, or any other entity for whom the Prime Contractor
is responsible, to fulfill the Prime Contractor's obligations. The Work may constitute the
whole or a part of the Project.
d) THE PROJECT
The Project is the total construction more particularly described in the Building
Construction Services Agreement, of which the Work performed under the Contract
Documents may be the whole or a part of the Project and which may include construction
by the Owner or by separate contractors. All references in these General Conditions to or
concerning the Work or the site of the Work will use the term "Project," notwithstanding
that the Work may only be a part of the Project.
e) THE DRAWINGS
The Drawings (also known as the "Plans") are the graphic and pictorial portions of the
Contract Documents, wherever located and whenever issued, showing the design, location
and dimensions of the Work, generally including plans, elevations, sections, details,
schedules, and diagrams.
f) THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written
requirements for materials, equipment, construction systems, standards, and workmanship
for the Work, performance of related services, and other technical requirements.
g) THE PROJECT MANUAL
The Project Manual is the volume or volumes which contain the bidding requirements,
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sample forms, General Conditions for Building Construction, special provisions, and
Specifications. The Project Manual may be modified by written addendums issued by the
Owner during bidding, in which case the written addendums become a part of the Project
Manual upon their issuance, unless otherwise indicated by the Owner in writing.
h) ALTERNATE
An Alternate is a variation in the Work on which the Owner requires a price separate from
the City Building General Conditions Base Bid. If an Alternate is accepted by the Owner,
the variation will become a part of the Contract through the execution of a change order or
amendment to the Contract and the Base Bid will be adjusted to include the amount quoted.
If an alternate is accepted by the Owner, and later deleted prior to any Work under the
alternate being performed or materials delivered to the Project site, the Owner will be
entitled to a credit in the full value of the alternate as priced in the Prime Contractor's Bid.
i) BASE BID
The Base Bid is the price quoted for the Work before Alternates are considered.
j) HAZARDOUS SUBSTANCE
The term Hazardous Substance is defined to include the following:
(1) any asbestos or any material which contains any hydrated mineral silicate, including
chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or
non -friable;
(2) any polychlorinated biphenyls ("PCBs"), or PCB -containing materials, or fluids;
(3) radon;
(4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or
solid, liquid or gaseous waste;
(5) any pollutant or contaminant (including but not limited to petroleum, petroleum
hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas
exploration or production waste, any natural gas, synthetic gas or any mixture thereof,
lead, or other toxic metals) which in its condition, concentration or area of release could
have a significant effect on human health, the environment, or natural resources;
(6) any substance that, whether by its nature or its use, is subject to regulation or requires
environmental investigation, monitoring, or remediation under any federal, state, or
local environmental laws, rules, or regulations;
(7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I)
(including those defined by Section 9001 (1) of the 1984 Hazardous and Solid Waste
Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901
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et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas
Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled
with any substance; and
(8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and
toxic substance as those or similar terms are defined under any federal, state, or local
environmental laws, rules, or regulations.
k) OTHER DEFINITIONS
As used in the Contract Documents, the following additional terms have the following
meanings:
(1) "provide" means to furnish, install, fabricate, deliver and erect, including all services,
materials, appurtenances and other expenses to complete in place, ready for operation
or use;
(2) "shall" means the action of the party to which reference is being made is mandatory;
(3) "as required" means as prescribed in the Contract Documents; and
(4) "as necessary" means all action essential or needed to complete the work in accordance
with the Contract Documents and applicable laws, ordinances, construction codes, and
regulations.
1.2 EXECUTION, CORRELATION AND INTENT
(a) The Building Construction Services Agreement shall be signed by duly authorized
representatives of the Owner and Prime Contractor as provided in the Agreement.
(b) Execution of the Building Construction Services Agreement by the Prime Contractor is a
representation that the Prime Contractor has visited the site, has become familiar with local
conditions, including but not limited to subsurface conditions, under which the Work is to
be performed and correlated personal observations with requirements of the Contract
Documents.
(c) The intent of the Contract Documents is to include all items necessary for the proper
execution and completion of the Work by the Prime Contractor. The Contract Documents
are complementary, and what is required by one shall be as binding as if required by all;
performance by the Prime Contractor shall be required only to the extent consistent with
the Contract Documents and reasonably inferable from them as being necessary to produce
the intended results.
(d) Organization of the Specifications into divisions, sections, and articles, and arrangement
of Drawings shall not control the Prime Contractor in dividing the Work among
Subcontractor(s) or in establishing the extent of Work to be performed by any trade.
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(e) Unless otherwise stated in the Contract Documents, words which have well-known
technical or construction industry meanings are used in the Contract Documents in
accordance with such recognized meanings.
(f) The Drawings and Specifications are intended to agree with one another, and Work called
for by Drawings and not mentioned in Specifications, or vice versa, shall be furnished as
if set forth by both. Specifications shall govern materials, methods and quality of work. In
the event of a conflict on the Drawings between scale and dimension, figured dimensions
shall govern over scale dimensions and large scale drawings shall govern over small scale
drawings. Conflict between two or more dimensions applying to a common point shall be
referred to the Architect/Engineer/Engineer for final adjustment. If discrepancies or
conflicts occur within or between the Drawings and Specifications regarding the Work, or
within or between other Contract Documents, the Prime Contractor shall not perform such
Work without having obtained a clarification from the Architect/Engineer and resolution
by the Owner. The Owner's decision as to the appropriate resolution of a conflict or
discrepancy shall be final. Should the Drawings or the Specifications disagree within
themselves or with each other; the Base Bid will be based on the most expensive
combination of quality and quantity of Work indicated.
(g) Deviations from Contract Documents shall be made only after written approval is
obtained from Architect/Engineer and Owner, as provided in Article 7.
(h) The intention of the Contract Documents is to include all materials, labor, tools,
equipment, utilities, appliances, accessories, services, transportation, and supervision
required to completely perform the fabrication, erection and execution of the Work in
its final position.
(i) The most recently issued Drawing or Specification takes precedence over previous
issues of the same Drawing or Specification. In the event of a conflict, the order of
precedence of interpretation of the Contract Documents is as follows:
(1) Amendments (see Paragraph 7.2 for order of precedence between Amendments);
(2) the Building Construction Services Agreement;
(3) addenda, with those addenda of later date having precedence over those of an earlier
date;
(4) the Supplementary General Conditions and Special Provisions, if any;
(5) the General Conditions for Building Construction;
(6) Othe Specifications and Drawings.
Contract 7819
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1.30WNERSHIP AND USE OF ARCHITECT/ENGINEER'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and
shall remain the property of the Owner and are, with the exception of the Contract set for each
party, to be returned to the Owner upon request at the completion of the Work.
1.4 CAPITALIZATION
Terms capitalized in these General Conditions include those which are:
(1) specifically defined in these General Conditions (except the terms defined in Subparagraph
1.10), which terms are of common grammatical usage and are not normally capitalized);
(2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and
Clauses;
(3) the titles of other documents published or used by the Owner as manuals or official policy
statements; or
(4) proper nouns or other words required under standard grammatical rules to be capitalized.
ARTICLE 2 -THE OWNER
2.1 DEFINITION OF OWNER
The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in
the Building Construction Services Agreement, and is referred to throughout the Contract
Documents as if singular in number. The term "Owner" means the Owner or the Owner's
authorized representatives.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
(a) The Owner shall furnish the most recent survey describing the physical characteristics,
legal limits, utility locations, and a permanent benchmark for the site of the Project. The
Owner shall also furnish any environmental site assessments that may have been given to
the Owner or conducted for the property upon which the Project is to be constructed. THIS
INFORMATION IS FURNISHED TO THE PRIME CONTRACTOR ONLY IN ORDER
TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE.
BY FURNISHING THIS MATERIAL, THl? OWNER DOES NOT REPRESENT,
WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART,
IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER
SHALL HAVE NO LIABILITY FOR THIS MATERIAL.
(b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall
secure and pay for necessary approvals, easements, assessments, and charges required for
construction, use, or occupancy of permanent structures or for permanent changes in
existing facilities.
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(c) Information or services under the Owner's control shall be furnished by the Owner with
reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent
upon the Prime Contractor to identify, establish, and maintain a current schedule of latest
dates for submittal and approval, as required in Paragraph 3.10, including when such
information or services must be delivered. If Owner delivers the information or services to
the Prime Contractor as scheduled and Prime Contractor is not prepared to accept or act on
such information or services, then Prime Contractor shall reimburse Owner for all extra
costs incurred of holding, storage, or retention, including redeliveries by the Owner to
comply with the current schedule.
(d) Unless otherwise provided in the Contract Documents, the Prime Contractor will be
furnished electronic copies of the Drawings and Specifications for bid purposes and one
hard copy approved by Building Inspections upon execution of the Contract. Prime
Contractor may obtain additional copies by paying the cost of additional printing or
reproduction.
(e) The obligations described above are in addition to other duties and responsibilities of the
Owner enumerated in the Contract Documents and especially those in respect to Article 6
(Construction by Owner or by Separate Contractors), Article 9 (Payments and
Completion), and Article 11 (Insurance and Bonds).
(f) The Owner shall forward all instructions to the Prime Contractor through the
Architect/Engineer, except for the Owner's Notice to Proceed and the Owner's decision to
carry out Work as described in Paragraph 2.4.
(g) The Owner's employees, agents, and consultants may be present at the Project site during
performance of the Work to assist the Architect/Engineer in the performance of the
Architect/Engineer's duties and to verify the Prime Contractor's record of the number of
workmen employed on the Work, their occupational classification, the time each is
engaged in the Work, the equipment used in the performance of the Work, and for purpose
of verification of Prime Contractor's Applications for Payment.
2.3 OWNER'S RIGHT TO STOP THE WORK
If the Prime Contractor fails to correct any portion of the Work which is not in accordance with
the requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails
to carry out all or any part of the Work in accordance with the Contract Documents, the Owner,
by written order, may order the Prime Contractor to stop the Work, or any portion of the Work,
until the cause for the order has been eliminated. The right of the Owner however, to stop the
Work shall not create or imply a duty on the part of the Owner to exercise this right for the
benefit of the Prime Contractor or any other person or entity. The rights of the Owner under
this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under
Paragraph 12.2.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
If the Prime Contractor fails or refuses to carry out the Work or perform any of the terms,
covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure
or refusal with diligence and promptness within fourteen (14) days after receipt of written
notice from the Owner, the Owner may correct the Prime Contractor's failure or refusal or
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cause such failure or refusal to be corrected, without affecting, superseding, or waiving any
other contractual, legal, or equitable remedies the Owner has, including but not limited to the
Owner's termination rights under Article 13. In that case, an appropriate Change Order will be
issued deducting the Owner's cost of correction, including Architect/Engineer's compensation
for additional services and expenses made necessary by the failure or refusal of the Prime
Contractor from payments then or thereafter due to the Prime Contractor. The cost of correction
is subject to verification (but not approval) by the Architect/Engineer. If payments then or
thereafter due the Prime Contractor are not sufficient to cover the cost of correction, the Prime
Contractor shall pay the difference to the Owner.
2.5 NOTICE TO PROCEED
After final execution of the Contract and receipt and approval of the required performance and
payment bonds and evidence of required insurance, the Owner will issue a written Notice to
Proceed with the Work, including the designated Contract Time within which Substantial
Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a
written Notice to Proceed through no fault of the Prime Contractor, the Prime Contractor shall
be entitled only to an equitable adjustment of the Contract Time, if properly claimed pursuant
to the requirements of Paragraph 4.3; but the Prime Contractor shall not be entitled to any
increase to the Contract Sum whatsoever for this reason.
ARTICLE 3 -THE CONTRACTOR
3.1 DEFINITION OF CONTRACTOR.
The Prime Contractor is the person or business entity identified as such in the Building
Construction Services Agreement, and is referred to throughout the Contract Documents as if
singular in number. The term "Prime Contractor" means the Prime Contractor or the Prime
Contractor's authorized employees or representatives.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
CONTRACTOR
(a) The Prime Contractor shall carefully check, study, and compare the Contract Documents
with each other and shall at once report to the Architect/Engineer in writing any
inconsistency, ambiguity, error, omission, conflict, or discrepancy the Prime Contractor
may discover. The Prime Contractor shall also verify all dimensions, field measurements,
and field conditions before laying out the Work. The Prime Contractor will be held
responsible for any subsequent error, omission, conflict, or discrepancy which might have
been avoided by the above-described check, study, comparison, and reporting. In the event
the Prime Contractor continues to work on an item where an inconsistency, ambiguity,
error, omission, conflict, or discrepancy exists without obtaining such clarification or
resolution or commences an item of the Work without giving written notice of an error,
omission, conflict, or discrepancy that might have been avoided by the check, study, and
comparison required above, it shall be deemed that the Prime Contractor bid and intended
to execute the more stringent, higher quality, or state of the art requirement, or accepted
the condition "as is" in the Contract Documents, without any increase to the Contract Sum
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or Contract Time. The Prime Contractor shall also be responsible to correct any failure of
component parts to coordinate or fit properly into final position as a result of Prime
Contractor's failure to give notice of and obtain a clarification or resolution of any error,
omission, conflict, or discrepancy, without any right to any increase to the Contract Sum
or Contract Time.
(b) The Prime Contractor shall perform the Work in accordance with the Contract Documents
and submittals approved pursuant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
(a) The Prime Contractor shall supervise and direct the Work, using the Prime Contractor's
best skill and attention. The Prime Contractor shall be solely responsible for and have
control over construction means, methods, techniques, sequences, and procedures and for
coordinating all portions of the Work, unless the Contract Documents set forth specific
instructions concerning these matters.
(b) The Prime Contractor shall be responsible to the Owner for the acts and omissions of the
Prime Contractor's employees, Subcontractors, Sub -subcontractors, and their respective
agents and employees, and any other persons performing portions of the Work under a
subcontract with the Prime Contractor, or with any Subcontractor, and all other persons or
entities for which the Prime Contractor is legally responsible. All labor shall be performed
by mechanics that are trained and skilled in their respective trades. Standards of work
required throughout shall be of a quality that will bring only first class results. Mechanics
whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or
otherwise objectionable shall be dismissed promptly from the Work and immediately
replaced with competent, skilled personnel. Any part of the Work adversely affected by the
acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall be
immediately corrected by the Prime Contractor.
(c) The Prime Contractor shall not be relieved of its obligation to perform the Work in
accordance with the Contract Documents either by activities or duties of the
Architect/Engineer in the Architect/Engineer's administration of the Contract, or by tests,
inspections, or approvals required or performed by persons other than the Prime
Contractor.
(d) The Prime Contractor shall be responsible for inspection of portions of Work already
performed under this Contract to determine that such portions are in proper condition to
receive subsequent Work. The Prime Contractor's responsibility under this paragraph will
not in any way eliminate the Architect/Engineer's responsibility to the Owner under the
Architect/Engineer/Owner Agreement.
(e) Any Prime Contractor, Subcontractor, Sub -subcontractor, or separate contractor who
commences Work over, in, or under any surface prepared by the Owner or by any other
contractor, subcontractor, sub -subcontractor or any separate contractor, without the Prime
Contractor having given written notice to the Architect/Engineer of the existence of any
faulty surface or condition in the surface that prevents achieving the quality of
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workmanship specified by the Contract Documents and without having obtained the prior
approval of the Architect/Engineer and the Owner to proceed is deemed to have accepted
the surface or condition in the surface as satisfactory at the commencement of such Work.
Any unsatisfactory Work subsequently resulting from such a faulty surface or condition in
the surface that was not pre -approved by the Architect/Engineer or the Owner after notice
as provided above may be rejected and replacement required, without any increase to the
Contract Sum or Contract Time.
(f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing
basis by the Prime Contractor. The Prime Contractor is solely responsible for any errors
made in establishing or maintaining proper grades, lines, levels, or benchmarks. Contractor
shall verify all grades, lines, levels, and dimensions as indicated on Drawings. He shall
report any errors, omissions, conflicts, or inconsistencies to Architect/Engineer before
commencing any Work affected by these conditions. Contractor shall establish and
safeguard benchmarks in at least two widely separated places and, as Work progresses,
establish benchmarks at each level and lay out partitions on rough floor in exact locations
as guides to all trades. The Contractor shall, from the permanent benchmark provided by
the Owner, establish and maintain adequate horizontal and vertical control.
3.4 LABOR AND MATERIALS
(a) Except as is otherwise specifically provided in the Contract Documents as being the
responsibility of the Owner, the Prime Contractor shall provide and pay for labor,
materials, equipment, tools, construction equipment and machinery, water, heat, utilities,
transportation, and other facilities and services necessary for proper execution and
completion of the Work, whether temporary or permanent and whether or not incorporated
or to be incorporated in the Work.
(b) The Prime Contractor shall enforce strict discipline and good order among the Prime
Contractor's employees and all other persons carrying out the Contract. The Prime
Contractor shall not permit employment of unfit persons or persons not skilled in tasks
assigned to them.
(c) The Prime Contractor shall give preference, when qualified labor is available to perform
the Work to which the employment relates, to all labor hired for the Project in the following
order:
(1) residents of the City of Denton, Texas;
(2) residents of the County of Denton, Texas;
3.5 WARRANTY
(a) General Warranty. The Contractor warrants to the Owner that all Work shall be
accomplished in a good and workmanlike manner and that all materials and equipment
furnished under the Contract will be of good quality, new (unless otherwise specified), and
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free from faults or defects, and that the Work will otherwise conform to the Contract
Documents. Work not conforming to these requirements, including substitutions not
properly approved and authorized, will be considered defective or nonconforming. The
Contractor's warranty excludes any remedy for damage or defect caused by abuse,
modifications not executed by the Contractor, improper or insufficient maintenance,
improper operation, or normal wear and tear under normal usage. If required by the
Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment. The commencement date, duration, and other
conditions related to the scope of this general warranty are established in Subparagraphs
9.9 (a) and 12.2(b) of these General Conditions. THE GENERAL WARRANTY
PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT
LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR
PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH WARRANTY
SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE MATERIALS
AND RE -EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER
TO THE CONTRACTOR WITHIN A PERIOD OF TWO (2) YEARS AFTER
SUBSTANTIAL COMPLETION OF THE ENTIRE WORK; OR, IF A LATENT
DEFECT IS DISCOVERED WITHIN TWO YEARS OF SUBSTATIONAL
COMPLETION OF THE ENTIRE WORK.
(b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition
precedent to final payment, the terms and conditions of all special warranties required
under the Contract Documents.
3.6 TAXES
The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the
provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall
not be liable for, or pay the Contractor's cost of, such sales and use taxes which would
otherwise be payable in connection with the purchase of tangible personal property furnished
and incorporated into the real property being improved under the Contract Documents or the
purchase of materials, supplies and other tangible personal property, other than machinery or
equipment and its accessories and repair and replacement parts, necessary and essential for
performance of the Contract which is to be completely consumed at the job site. The Contractor
shall issue an exemption certificate in lieu of the tax on such purchases.
3.7 PERMITS, FEES AND NOTICES
(a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton
Building Permit. The Prime Contractor and Subcontractors will apply and arrange for the
issuance of all other required permits, and will not be required to pay a fee for any City of
Denton permits required for the Project. The Owner will pay all service extension charges,
including tap fees, assessed by the Water Utilities Department.
(b) The Prime Contractor shall comply with and give notices required by laws, ordinances,
rules, regulations, and lawful orders of governmental entities or agencies applying to
performance of the Work.
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(c) Except as provided in Subparagraph (d) below, it is not the Prime Contractor's
responsibility to ascertain that the Contract Documents are in accordance with applicable
laws, ordinances, construction codes, and rules and regulations. However, if the Prime
Contractor observes that portions of the Contract Documents are at variance with
applicable laws, ordinances, construction codes, rules or regulations, the Prime Contractor
shall promptly notify the Architect/Engineer and the Owner in writing, and necessary
changes shall be accomplished by appropriate Amendment.
(d) If the Prime Contractor performs Work knowing it to be contrary to laws, ordinances,
construction codes, or rules and regulations without notifying the Architect/Engineer and
the Owner, the Prime Contractor shall assume full responsibility for the Work and shall
bear the attributable costs of the correction of the Work and any other Work in place that
may be adversely affected by the corrective work.
3.8 ALLOWANCES
(a) The Prime Contractor shall include in the Contract Sum all allowances stated in the
Contract Documents. Items covered by allowances shall be supplied for the amounts
identified in the Contract and by persons or entities as the Owner may direct, but the Prime
Contractor shall not be required to employ persons or entities against which the Prime
Contractor makes reasonable objection.
(b) Unless otherwise provided in the Contract Documents:
(1) materials and equipment under an allowance shall be selected promptly by the Owner
to avoid delay in the Work;
(2) the amount of each allowance shall cover the cost to the Prime Contractor of materials
and equipment delivered at the site less all exempted taxes and applicable trade
discounts;
(3) the amount of each allowance includes the Prime Contractor's costs for unloading and
handling at the site, labor, installation costs, overhead, profit, and other expenses
contemplated for stated allowance Work;
(4) whenever costs are more than or less than allowances, the Contract Sum shall be
adjusted accordingly by Change Order. The amount of the Change Order shall reflect:
(i) the difference between actual costs and the allowances under Clause (b) (2); and
(ii) changes in Contractor's costs under Clause (b) (3);
(5) the Owner retains the right to review and approve Subcontractors selected by the Prime
Contractor to perform work activities covered by allowances.
3.9 SUPERINTENDENT
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The Prime Contractor shall employ a competent superintendent and necessary assistants who
shall be in attendance at the Project Site during performance of the Work. The superintendent
shall represent the Prime Contractor, and communications given to the superintendent shall be
as binding as if given to the Prime Contractor. Important communications shall be confirmed
in writing. Other communications shall be similarly confirmed on written request in each case.
The Owner reserves the right to request that the Prime Contractor replace its superintendent at
any time and the Prime Contractor will replace said superintendent at the Owner's direction.
3.10 PRIME CONTRACTOR'S CONSTRUCTION SCHEDULES
(a) The Prime Contractor shall, immediately after award of the Contract and before submittal
of the first Application for Payment, prepare and submit the construction schedule for the
Architect/Engineer's and Owner's information, review, and approval in accordance with
the following provisions:
(1) Unless otherwise approved in writing by the Owner, the construction schedule shall not
exceed the Contract Time limits currently in effect under the Contract Documents and
shall provide for expeditious and practicable execution of the Work.
(2) The construction schedule shall include all shop drawing and submittal data
requirements, indicating for each:
(i) the latest date to be submitted by the Prime Contractor; and
(ii) the latest date for approval by the Architect/Engineer.
(3) The construction schedule shall be in the form of a critical path management schedule,
and shall indicate each critical task (the "predecessor") of all the major construction
activities of the Work in a logical and sequential order (the "project network") which
requires completion prior to commencement of the task next following (the
"successor"). Each task shall be identified with:
(i) actual work time, exclusive of slack time, for accomplishment;
(ii) the latest start date;
(iii) the latest finish date;
(iv) the amount of float associated with each task;
(v) the amount of labor, material, and equipment associated with each task; and
(vi) the percentage of completion as of the date of the current schedule.
(4) The construction schedule shall be revised and updated monthly to reflect the actual
status of the Work and shall be submitted with each Application for Payment.
(5) On or before the first day of each month, following the date of commencement of the
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Work as stated in the notice to proceed, the Prime Contractor shall prepare and submit
to the Architect/Engineer and the Owner an up-to-date status report of the progress of
the various construction phases of the Work in the form of an updated construction
schedule. This status report shall consist of a time scale drawing indicating actual
progress of the various phases of the Work and the percentage of completion of the
entire Work. The original construction schedule shall be updated or changed to indicate
any adjustments to the Contract Time granted by the Owner. The updated schedule
must be submitted with the Prime Contractor's Application for Payment. No such
application will be certified without a satisfactory update to the construction schedule.
(6) The construction schedule will also be revised to show the effect of change orders and
other events on Contract Time. No request for an increase in Contract Time will be
considered unless it is accompanied by a schedule revision demonstrating the amount
of time related to the cause of the request. If the Contractor's status schedules reflect
that the Prime Contractor has fallen behind the pace required to complete the Work
within the Contract Time, through no fault of the Owner, the Prime Contractor shall
prepare a recovery schedule demonstrating how it intends to bring its progress back
within the Contract Time. This recovery schedule shall be in a form acceptable to the
Owner.
(7) Costs incurred by the Prime Contractor in preparing and maintaining the required
construction schedule, any updated schedule, and any recovery schedule required by
the Owner will not be paid as an additional or extra cost and shall be included in the
Contract Sum.
(8) The Contract Sum is deemed to be based upon a construction schedule requiring the
full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE
ALLOWED AS A RESULT OF THE PRIME CONTRACTOR BASING HIS BID ON
AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND
COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED
EARLY COMPLETION DATE.
(b) The Prime Contractor shall also prepare and keep current, for the
Architect/Engineer's approval, a schedule of submittals which is coordinated with
the Prime Contractor's construction schedule and allows the Architect/Engineer
reasonable time to review submittals.
(c) The Prime Contractor shall conform to the most recent schedules approved as to
form by the Architect/Engineer and the Owner. Any subsequent revisions made by
the Prime Contractor to schedules in effect shall conform to the provisions of
Subparagraph 3.10(a)
(d) If the Work falls behind the approved construction schedule, the Prime Contractor
shall take such steps as may be necessary to improve his progress, and the
Architect/Engineer and the Owner may require him to increase the number of shifts,
overtime operations, days of work, or the amount of construction plant, and to
submit for approval revised schedules in the form required above in order to
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demonstrate the manner in which the agreed rate of progress will be regained, all
without additional cost to the Owner.
3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE
The Contractor shall maintain at the Project site for the Owner one record copy of the
Drawings, Specifications, addenda, and Amendments in good order and marked currently to
record changes and selections made during construction, and in addition shall maintain at the
Project site approved Shop Drawings, Product Data, Samples, and similar required submittals.
These shall be available to the Architect/Engineer and shall be delivered to the
Architect/Engineer for submittal to the Owner upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
(a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for
the Work by the Contractor or a Subcontractor, Sub -subcontractor, materialmen,
manufacturer(s), supplier(s), or distributor(s) to illustrate some portion of the Work.
(b) Product Data are illustrations, standard schedules, performance charts, instructions,
brochures, diagrams, and other information furnished by the Contractor to illustrate
materials or equipment for some portion of the Work.
(c) Samples are physical examples which illustrate materials, equipment, or workmanship and
establish standards by which the Work will be judged.
(d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract
Documents. The purpose of their submittal is to demonstrate for those portions of the Work
for which submittals are required the way the Contractor proposes to conform to the
information given and the design concept expressed in the Contract Documents. Review
by the Architect/Engineer is subject to the limitations of Paragraph 4.2.
(e) The Prime Contractor shall review, approve and submit to the Architect/Engineer Shop
Drawings, Product Data, Samples, and similar submittals required by the Contract
Documents with reasonable promptness and in such sequence as to cause no delay in the
Work or in the activities of the Owner, or of separate contractors. Submittals made by the
Prime Contractor which are not required by the Contract Documents may be returned
without action.
(f) The Prime Contractor shall perform no portion of the Work requiring submittal and review
of Shop Drawings, Product Data, Samples, or similar submittals until the respective
submittal has been approved by the Architect/Engineer. Work requiring this submittal and
review shall be in accordance with approved submittals and any identified exceptions noted
by the Architect/Engineer.
(g) By approving and submitting Shop Drawings, Product Data, Samples and similar
submittals, the Prime Contractor represents that the Prime Contractor has determined and
verified materials, field measurements, and related field construction criteria, or will do so,
and has checked and coordinated the information contained within submittals with the
requirements of the Work and of the Contract Documents. The Prime Contractor's attention
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is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that
Paragraph.
(h) The Prime Contractor shall not be relieved of responsibility for deviations, substitutions,
changes, additions, deletions or omissions from requirements of the Contract Documents
by the Architect/Engineer's approval of Shop Drawings, Product Data, Samples, or similar
submittals unless the Prime Contractor has specifically informed the Architect/Engineer in
writing of such substitutions, changes, additions, deletions, omissions, or deviations
involved in the submittal at the time of submittal and the Architect/Engineer, subject to a
formal Change Order signed by the Owner, Architect/Engineer and Prime Contractor, has
given written approval to the specific substitutions, changes, additions, deletions,
omissions, or deviations. The Prime Contractor shall not be relieved of responsibility for
errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the
Architect/Engineer's approval thereof. Further, notwithstanding any approval of a
submittal by the Architect/Engineer, the Prime Contractor shall be responsible for all
associated Project costs, including costs of coordination's, modifications, or impacts, direct
or indirect, resulting from any and all substitutions, changes, additions, deletions,
omissions, or deviations, whether or not specifically identified by the Prime Contractor to
the Architect/Engineer at the time of the above-mentioned submittals, including additional
consulting fees, if any, in any and all accommodations associated with such substitutions,
changes, additions, deletions, omissions, or deviations to the requirements of the Contract
Documents.
(i) The Prime Contractor shall direct specific attention, in writing or on resubmitted Shop
Drawings, Product Data, Samples, or similar submittals, to additional revisions other than
those requested by the Architect/Engineer on previous submittals. In the absence of such
written notice, the Architect/Engineer's approval of a resubmission shall not apply to the
additional revisions not requested.
0) Informational submittals upon which the Architect/Engineer is not expected to take
responsive action may be so identified in the Contract Documents.
(k) When professional certification of performance criteria of materials, systems, or equipment
is required by the Contract Documents, the Architect/Engineer shall be entitled to rely upon
the accuracy and completeness of such calculations and certifications.
3.13 USE OF THE PROJECT SITE
The Prime Contractor shall confine operations at the Project site to areas permitted by law,
ordinances, permits, and the Contract Documents and shall not unreasonably encumber the
Project site with materials or equipment.
3.14 CUTTING AND PATCHING
(a) The Prime Contractor shall be responsible for cutting, fitting or patching required to
complete the Work or to make its parts fit together properly.
(b) The Prime Contractor shall not damage or endanger a portion of the Work or any fully
or partially completed construction of the Owner or separate contractors by cutting,
patching, or otherwise altering the construction, or by excavating. The Prime Contractor
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shall not cut or otherwise alter the construction by the Owner or a separate contractor
except with the written consent of the Owner and of the separate contractor; consent shall
not be unreasonably withheld. The Prime Contractor shall not unreasonably withhold
from the Owner or a separate contractor the Prime Contractor's consent to cutting or
otherwise altering the Work.
(c) A "Hot Work Permit" must be obtained from the City of Denton's Facilities Management
Department, 869 S. Woodrow Lane, Denton, Texas (940 349-7200) for any temporary
operation involving open flames or producing heat and/or sparks. This includes, but is
not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and
Welding.
3.15 CLEANING UP
(a) The Prime Contractor shall keep the Project site and surrounding area free from
accumulation of waste materials or rubbish caused by operations under the Contract.
Upon the completion of the Work the Prime Contractor shall remove from and about the
Project site all waste materials, and rubbish, and all of the Prime Contractor's tools,
construction equipment, machinery, and surplus materials.
(b) If the Prime Contractor fails to clean up as provided in the Contract Documents, the
Owner may, at Owner's option, clean up the Project site, and the Owner's cost of cleaning
up shall be charged to the Contractor.
3.16 ACCESS TO WORK
The Prime Contractor shall provide the Owner and the Architect/Engineer access to the Work
in preparation and progress wherever located during the course of construction.
3.17 TESTS AND INSPECTIONS
(a) Tests, inspections, and approvals of portions of the Work required by the Contract
Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or
agencies having jurisdiction over the Work shall be made at appropriate times. Unless
otherwise provided, the Prime Contractor shall make arrangements for such tests,
inspections, and approvals with an independent testing laboratory or entity acceptable to
the Owner or with the appropriate governmental entity or agency, and the Prime Contractor
shall bear all related costs of tests, inspections, and approvals. The Prime Contractor shall
give the Architect/Engineer timely notice of when and where tests and inspections are to
be made so the Architect/Engineer may observe such procedures. The Owner shall bear
costs of tests, inspections, or approvals which become requirements after bids or proposals
are received.
(b) If the Architect/Engineer, the Owner or other public authorities having jurisdiction over
the Work determine that portions of the Work require additional testing, inspection or
approval not included under Subparagraph 3.17(a), the Architect/Engineer will, upon
written authorization from the Owner, instruct the Prime Contractor to make arrangements
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for such additional testing, inspection or approval by an entity acceptable to the Owner,
and the Prime Contractor shall give timely notice to the Architect/Engineer of when and
where tests and inspections are to be made so that the Architect/Engineer may observe such
procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c).
(c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b)
reveal deficiencies or nonconformities in the Work, the Prime Contractor shall bear all
costs made necessary to correct the deficiencies or nonconformities, including those of
repeated procedures and compensation for the Architect/Engineer's services and expenses,
if any. The Prime Contractor shall bear the costs of any subsequent testing, inspection, or
approval of the corrected Work.
(d) Required certificates of testing, inspection or approval shall, unless otherwise required by
the Contract Documents, be secured by the Prime Contractor and promptly delivered to the
Architect/Engineer.
(e) If the Architect/Engineer is to observe tests, inspections or approvals required by the
Contract Documents, the Architect/Engineer will do so promptly and, where practicable,
at the normal place of testing or inspection.
(f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly
to avoid unreasonable delay in the Work.
3.18 ROYALTIES AND PATENTS
The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL
COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND
ARCHITECT/ENGINEER HARMLESS FROM ANY AND ALL LIABILITIES, SUITS
OR CLAIMS FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF
WHETHER OR NOT THE OWNER OR THE ARCHITECT/ENGINEER SPECIFIED A
PARTICULAR DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS
THAT MAY BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE
ACTIVELY INDUCED OR CONTRIBUTED TO THE PATENT INFRINGEMENT. In the
event the Prime Contractor has reason to believe that a particular design, process or product
specified infringes a patent, the Prime Contractor shall immediately notify the Owner and
the Architect/Engineer of same.
3.19 INDEMNIFICATION
(a) THE PRIME CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE
OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE
ARCHITECT/ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS,
LIABILITIES, LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND
EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY
DAMAGE OR OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF
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DAMAGES, FINES, OR PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR
PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S
BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT,
VIOLATIONS OF LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT,
INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE PRIME
CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR
SUB -SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR
REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE
PRIME CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF
THIS CONTRACT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE
SOLE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS,
EMPLOYEES OR SEPARATE CONTRACTORS, OR OF THE
ARCHITECT/ENGINEER, AND IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE
ARCHITECT/ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL
BE APPORTIONED IN ACCORDANCE WITH THE LAW OF THE STATE OF
TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY
AVAILABLE TO THE OWNER UNDER TEXAS LAW, AND WITHOUT WAIVING
ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF
THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO
AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER THIRD PERSON OR ENTITY.
(b) In claims against any person or entity indemnified under this Paragraph 3.19 by an
employee of the Prime Contractor, a Subcontractor, anyone directly or indirectly employed
by them or anyone for whose acts they may be liable, the indemnification obligation under
this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the Prime Contractor or any Subcontractor,
under workers compensation acts, disability benefit acts or other employee benefit acts.
(c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability
which could result to or be created for the Owner, its officers, agents, or employees, or the
Architect/Engineer pursuant to State or Federal laws or regulations relating to pollution of
the environment and State or Federal laws or regulations relating to the occupational safety
and health of workers. The Prime Contractor specifically agrees to comply with the above-
mentioned laws and regulations in the performance of the Work by the Prime Contractor
and that the obligations of the Owner, its officers, agents, and employees, and the
Architect/Engineer under the above-mentioned laws and regulations are secondary to those
of the Prime Contractor.
ARTICLE 4 - CONTRACT ADMINISTRATION
4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER)
(a) The design professional is the person lawfully licensed to practice architecture or
engineering or a firm or other business entity lawfully practicing architecture/engineering
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identified as such in the formal Building Construction Services Agreement and is referred
to throughout the Contract Documents as if singular in number. The term
"Architect/Engineer" means the Architect/Engineer or the Architect/Engineer's authorized
representative. The Owner may, at its option, designate a qualified Owner representative
to serve as the Architect/Engineer on the Project instead of an outside firm or person. In
such event, the references in these General Conditions that refer to the Architect/Engineer
shall apply to the Owner -designated Architect/Engineer representative and the Owner -
designated Architect/Engineer representative shall be accorded that same status by the
Prime Contractor.
(b) In the event the Architect/Engineer is an outside person or firm and the
Architect/Engineer's employment is terminated, the Owner may, at its option, contract with
a new outside Architect/Engineer to replace the former, or may designate a qualified Owner
representative to serve as the Architect/Engineer. The replacement Architect/Engineer,
whether an Owner representative, an independent Architect/Engineer or any other qualified
person or entity, shall be regarded as the Architect/Engineer for all purposes under the
Contract Documents and shall be accorded that same status by the Prime Contractor. Any
dispute in connection with such appointment shall be reviewed and settled by the Owner,
whose decision shall be final and binding.
(c) Owner reserves the right to appoint a representative empowered to act for the Owner during
the Construction Phase and to supersede the Architect/Engineer's Construction Phase
responsibility. Similarly, from time to time the Owner may expand or reduce the Owner's
delegation of powers to the Architect/Engineer, with the Owner notifying the Prime
Contractor of any such changes. The Architect/Engineer shall not be construed as a third
parry beneficiary to the Contract and can in no way object to any expansion or reduction
of powers as set forth in this Subparagraph (c). In no event, however, shall the Owner have
control over charge of, or be responsible for, construction means, methods, techniques,
sequences, or procedures, or for safety precautions or programs in connection with the
Work since these are solely the Contractor's responsibility. The Owner will not be
responsible for the Prime Contractor's failure to carry out the Work in accordance with the
Contract Documents. The Owner will not have control over or charge of and will not be
responsible for acts or omissions of Prime Contractor, Subcontractors, or their agents or
employees, or of any other persons performing portions of the Work.
4.2 ARCII:ITECT/ENGINEER'S RESPONSIBILITIES DURING CONSTRUCTION
(a) The Architect/Engineer will administer the Contract as described in the Contract
Documents and in accordance with the terms of the Architect/Engineer's agreement with
the Owner, where applicable, subject to the direction and approval of the Owner. If
requested by the Prime Contractor, the provisions of the Owner/Architect/Engineer
Agreement will be made available to the Prime Contractor.
(b) The Architect/Engineer shall provide, during performance of the Work, adequate and
competent periodic on-site construction observation, periodically visiting the Project site
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to the extent necessary to personally familiarize themselves with the progress and quality
of the Work, and to determine if the Work is proceeding in accordance with the Contract
Documents. The Architect/Engineer shall not, however, be required to make continuous
on-site inspections to check the Work. Field reports of each visit shall be prepared by the
Architect/Engineer and submitted to the Owner. The Architect/Engineer shall employ all
reasonable measures to safeguard the Owner against defects and nonconformities in the
Work. The Architect/Engineer shall not be responsible for the construction means,
methods, techniques, sequences of procedures, nor for the safety precautions and programs
employed in connection with the Work. The Architect/Engineer will, however,
immediately inform the Owner whenever defects or nonconformities in the Work are
observed, or when any observed actions or omissions are undertaken by the Prime
Contractor or any Subcontractor which are not in the best interests of the Owner or the
Project.
(c) The Architect/Engineer and the Owner will not have control over or charge of and will not
be responsible for construction means, methods, techniques, sequences, or procedures, or
for safety precautions and programs in connection with the Work, since these are solely
the Prime Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer
and the Owner will not be responsible for the Prime Contractor's failure to carry out the
Work in accordance with the Contract Documents. The Architect/Engineer and the Owner
will not have control over or charge of and will not be responsible for acts or omissions of
the Prime Contractor, Subcontractors, Sub -subcontractors, or their respective agents or
employees, or of any other persons performing portions of the Work for which the Prime
Contractor is responsible.
(d) Except as otherwise provided in the Contract Documents or when direct communications
have been specially authorized, the Owner and Prime Contractor shall endeavor to
communicate through the Architect/Engineer. Communications by and with the
Architect/Engineer's consultants shall be through the Architect/Engineer. Communications
by and with Subcontractors and material suppliers shall be through the Prime Contractor.
Communications by and with separate contractors will be through the Owner. The Prime
Contractor shall provide written confirmation of communications made directly with the
Owner and provide copies of such confirmation to the Architect/Engineer.
(e) Based on the Architect/Engineer's observations and evaluations of the Prime Contractor's
Applications for Payment, the Architect/Engineer will review and certify the amounts due
the Prime Contractor and will issue Certificates for Payment in such amounts.
(f) The Architect/Engineer and the Owner will each have authority to reject Work which does
not conform to the Contract Documents. Whenever the Architect/Engineer considers it
necessary or advisable for implementation of the intent of the Contract Documents, the
Architect/Engineer will have authority to require additional inspection or testing of the
Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work is
fabricated, installed or completed. However, neither this authority of the
Architect/Engineer nor a decision made in good faith either to exercise or not to exercise
such authority shall give rise to any duty or responsibility of the Architect/Engineer to the
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Prime Contractor, Subcontractors, material and equipment suppliers, their agents or
employees, or other persons performing portions of the Work.
(g) The Architect/Engineer will review and approve or take other appropriate action upon the
Prime Contractor's submittals such as Shop Drawings, Product Data, and Samples, but
only for the limited purpose of checking for conformance with information given and the
design concept expressed in the Contract Documents. The Architect/Engineer's action will
be taken with such reasonable promptness as to not delay the Work or the activities of the
Owner, Contractor, or separate contractors. Review of such submittals is not conducted for
the purpose of determining the accuracy and completeness of other details such as
dimensions and quantities, or for substantiating instructions for installation or performance
of equipment or systems, all of which remain the responsibility of the Prime Contractor as
required by the Contract Documents. The Architect/Engineer's review of the Prime
Contractor's submittals shall not relieve the Prime Contractor of any obligations under
Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer's review shall not constitute
approval of safety precautions or, unless otherwise specifically stated in writing by the
Architect/Engineer, of any construction means, methods, techniques, sequences, or
procedures. The Architect/Engineer's approval of a specific item shall not indicate
approval of an assembly of which the item is a component.
(h) The Architect/Engineer will prepare Change Orders and may authorize minor changes in
the Work as provided in Paragraph 7.3.
(i) The Architect/Engineer will conduct inspections to determine the date or dates of
Substantial Completion and the date of final completion, will receive and forward to the
Owner for the Owner's review and records written warranties and related documents
required by the Contract and assembled by the Prime Contractor, and will issue a final
Certificate for Payment upon compliance with the requirements of the Contract
Documents.
(j) If the Owner and Architect/Engineer agree, the Architect/Engineer will provide one or
more Project representatives to assist in carrying out the Architect/Engineer's
responsibilities at the site. The duties, responsibilities, and limitations of authority of such
Project representatives shall be as set forth in an exhibit to be incorporated into the Contract
Documents.
(k) The Architect/Engineer will interpret and make recommendations to the Owner concerning
performance under and requirements of the Contract Documents upon written request of
either the Owner or Contractor. The Architect/Engineer's response to such requests will be
made with reasonable promptness and within any time limits agreed upon. The
Architect/Engineer shall secure the Owner's written approval before issuing instructions,
interpretations, or judgments to the Prime Contractor which change the scope of the Work
or which modify or change the terms and conditions of any of the Contract Documents.
(1) Interpretations and decisions of the Architect/Engineer will be consistent with the intent of
and reasonably inferable from the Contract Documents and will be in writing or in the form
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of Drawings. When making such interpretations and decisions, the Architect/Engineer will
endeavor to secure faithful performance by the Prime Contractor.
(m)The Architect/Engineer's decisions on matters relating to aesthetic effect will be final if
consistent with the intent expressed in the Contract Documents; provided that the
Architect/Engineer has the prior written approval of the Owner.
4.3 CLAIMS AND DISPUTES
(a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a
"Claim" means a demand or assertion by one of the parties to the Contract seeking an
adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract
Time, or some other relief in respect to the terms of the Contract Documents. The term also
includes all other disputes between the Owner and the Contractor arising out of or relating
to the Project or the Contract Documents, including but not limited to claims that work was
outside the scope of the Contract Documents. The responsibility to substantiate the Claim
and the burden of demonstrating compliance with this provision shall rest with the party
making the Claim. Except where otherwise provided in the Contract Documents, a Claim
by the Prime Contractor, whether for additional compensation, additional time, or other
relief, including but not limited to claims arising from concealed conditions, WITHOUT
EXCEPTION, MUST BE MADE BY WRITTEN NOTICE TO THE
ARCHITECT/ENGINEER AND TO THE OWNER WITHIN FOURTEEN (14) DAYS
IMMEDIATELY AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING
RISE TO THE PARTICULAR CLAIM. Every Claim of the Prime Contractor, whether for
additional compensation, additional time, or other relief, including but not limited to claims
arising from concealed conditions, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind the Prime
Contractor by his signature) of the Prime Contractor, verifying the truth and accuracy of
the Claim. THE PRIME CONTRACTOR SHALL BE CONCLUSIVELY DEEMED TO
HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH
THE PROCEDURES AND TIME LIMITS SET OUT IN THIS PARAGRAPH.
(b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between
the Prime Contractor and the Owner relating to the progress or execution of the Work or
the interpretation of the Contract Documents shall be referred to the Architect/Engineer for
recommendation to the Owner, which recommendation the Architect/Engineer will furnish
in writing within a reasonable time, provided proper and adequate substantiation has been
received. Failure of the Prime Contractor to submit the Claim to the Architect/Engineer for
rendering of a recommendation to the Owner shall constitute a waiver of the Claim.
(c) Continuing Contract Performance. Pending final resolution of a claim the Prime Contractor
shall proceed diligently with performance of the Work and the Owner shall continue to
make payments in accordance with the Contract Documents.
(d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time
associated with concealed or unknown conditions will normally be considered or allowed;
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provided, however, that the Contract Sum or Time may be adjusted by the Owner in such
circumstances only if:
(1) a concealed subsurface condition is encountered in the course of performance of the
Work;
(2) a concealed or unknown condition in an existing structure is at variance with conditions
indicated by the Contract Documents; or
(3) an unknown physical condition is encountered below the surface of the ground or in an
existing structure which is of an unusual nature and materially different from those
ordinarily encountered and generally recognized as inherent in the character of the
Work; and
(4) a notice of claim with proper and adequate substantiation is presented pursuant to
Subparagraph 4.3(a) of these General Conditions; and
(5) the Owner and the Architect/Engineer determine that:
(i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to
fully inspect the portion of the Project site where the condition was discovered; and
(ii) the work caused or required by the concealed or unknown condition at issue can be
considered extra work to the extent that additional new Drawings must be prepared and
issued and new construction beyond the scope of the Contract Documents is required.
(e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE
INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS
TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE
ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT/ENGINEER
IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE
PRIME CONTRACTOR AT THE PRIME CONTRACTOR'S OWN RISK. THE
OWNER AND THE ARCHITECT/ENGINEER DO NOT GUARANTEE OR
WARRANT ANY INFORMATION SHOWN IN THE PROJECT SITE INFORMATION
AND REPORTS.
(f) Claims for Additional Cost. If the Prime Contractor wishes to make a claim for an increase
in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before
proceeding to execute the Work. Prior notice is not required for claims relating to an
emergency endangering life or property arising under Paragraph 10.3. In addition, the
Prime Contractor's request for an increase in the Contract Sum for any reason (other than
work performed under emergency conditions) shall be made far enough in advance of
required work to allow the Owner and the Architect/Engineer a sufficient amount of time,
without adversely affecting the construction schedule, to review the request, prepare and
distribute such additional documents as may be necessary to obtain suitable estimates or
proposals and to negotiate, execute and distribute a Change Order for the required work if
the Prime Contractor believes that additional cost is involved for reasons including but not
limited to:
(1) a written interpretation from the Architect/Engineer;
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(2) a written order for a minor change in the Work issued by the Architect/Engineer;
(3) failure of payment by the Owner;
(4) termination of the Contract by the Owner;
(5) the Owner's temporary suspension of all or any portion of the Work where the Prime
Contractor was not at fault; or
(6) other reasonable grounds.
(g) Injury or Damage to Person or Property. If the Prime Contractor suffers injury or damages
to person or property because of an act or omission of the Owner, or of any of the Owner's
officers, employees or agents, written, sworn -to notice of any claim for damages or injury
shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail
to enable the Architect/Engineer and the Owner to investigate the matter.
(h) Subcontractor Pass -Through Claims. In the event that any Subcontractor of the Prime
Contractor asserts a claim to the Prime Contractor, that the Prime Contractor seeks to pass
through to the Owner under the Contract Documents, any entitlement of the Prime
Contractor to submit and assert the claim against the Owner shall be subject to:
(1) the requirements of Paragraph 4.3 of these General Conditions; and
(2) the following additional three requirements listed below, all three of which additional
requirements shall be conditions precedent to the entitlement of the Prime Contractor
to seek and assert such claim against the Owner:
(ii) The Prime Contractor shall either (A) have direct legal liability as a matter of
contract, common law, or statutory law to the Subcontractor for the claim that the
Subcontractor is asserting or (B) the Prime Contractor shall have entered into a written
liquidating agreement with the Subcontractor, under which agreement the Prime
Contractor has agreed to be legally responsible to the Subcontractor for pursuing the
assertion of such claim against the Owner under the Contract and for paying to the
Subcontractor any amount that may be recovered, less Prime Contractor's included
markup (subject to the limits in the Contract Documents for any markup). The liability
or responsibilities shall be identified in writing by the Prime Contractor to the Owner
at the time such claim is submitted to Owner, and a copy of any liquidating agreement
shall be included by the Prime Contractor in the claim submittal materials.
(ii) The Prime Contractor shall have reviewed the claim of the Subcontractor prior to
its submittal to Owner and shall have independently evaluated such claim in good faith
to determine the extent to which the claim is believed in good faith to be valid. The
Prime Contractor shall also certify, in writing and under oath to the Owner, at the time
of the submittal of such claim, that the Prime Contractor has made a review, evaluation,
and determination that the claim is made in good faith and is believed by the Contractor
to be valid.
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(iii) The Subcontractor making the claim to the Prime Contractor shall certify in writing
and under oath that it has compiled, reviewed and evaluated the merits of such claim
and that the claim is believed in good faith by the Subcontractor to be valid. A copy of
the certification by the Subcontractor shall be included by Prime Contractor in the claim
submittal materials made by Contractor to the Owner..
(3) Any failure of the Prime Contractor to comply with any of the foregoing requirements
and conditions precedent with regard to any such claim shall constitute a waiver of any
entitlement to submit or pursue such claim against Owner.
(4) Receipt and review of a claim by the Owner under this Subparagraph shall not be
construed as a waiver of any defenses to the claim available to the Owner under the
Contract Documents or by applicable law.
(i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time
Extensions, in Whole or in Part. The Prime Contractor acknowledges and agrees that
Substantial Completion of the Work by or before the Scheduled Completion Date is of
substantial importance to Owner. The following provisions, therefore, will apply:
(1) If the Prime Contractor falls behind the approved construction schedule for
whatever reason, the Owner shall have the right, in the Owner's sole discretion, to
order the Prime Contractor to develop a recovery schedule as described in
Paragraph 3.10 or to accelerate its progress in such a manner as to achieve
Substantial Completion on or before the Contract Time completion date or such
other date as the Owner may reasonably direct and, upon receipt, the Prime
Contractor shall take all action necessary to comply with the order. In such event,
any possible right, if any, of the Prime Contractor to additional compensation for
any acceleration shall be subject to the terms of this Subparagraph (i).
(2) In the event that the Prime Contractor is otherwise entitled to an extension of
Contract Time and has properly initiated a Claim for a time extension in accordance
with Subparagraph 4.3(a) above, the Owner shall have the right, in the Owner's
sole discretion, to deny all, or any part, of the Claim for extension of Contract Time
by giving written notice to the Prime Contractor provided within fourteen (14) days
after receipt of the Prime Contractor's Claim. If the Owner denies the Prime
Contractor's claim for an extension of Contract Time under this Clause (i)(2), either
in whole or in part, the Prime Contractor shall proceed to prosecute the Work in
such a manner as to achieve Substantial Completion on or before the then existing
Scheduled Completion Date.
(3) If the Prime Contractor would have been entitled to a time extension for a reason
specifically allowed under the Contract Documents, for an amount of time that
would have justified approval by the Owner if not for the need and right to
accelerate, the Prime Contractor may initiate a Claim for acceleration costs
pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs
properly initiated by the Prime Contractor under Subparagraph 4.3(a) above shall
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be limited to those reasonable and documented direct costs of labor, materials,
equipment, and supervision solely and directly attributable to the actual
acceleration activity necessary to bring the Work back within the then existing
approved construction schedule. These direct costs include the premium portion of
overtime pay, additional crew, shift, or equipment costs if requested in advance by
the Contractor and approved in writing by the Owner. A percentage markup for the
prorated cost of premium on the existing performance and payment bonds and
required insurance; provided however, not to exceed five (5%) per cent, will be
allowed on the claimed acceleration costs. NO OTHER MARKUP FOR PROFIT,
OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE
OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY
ACCELERATION CLAIM. The Owner shall not be liable for any costs related to
an acceleration claim other than those described in this Clause (i)(3).
(i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver
of claims by the Owner except those arising from:
(1) claims, security interests, purported liens, or other attempted encumbrances arising out
of the Contract and remaining unsettled;
(2) defective or nonconforming Work appearing after Substantial Completion;
(3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion;
or
(4) the terms of general and special warranties required by the Contract Documents or
allowed or implied by law.
(k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S
FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS
OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION
PROCEEDING.
(1) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS
SHALL BE CONSTRUED TO WAIVE THE OWNER'S GOVERNMENTAL
IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO
THE EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY
APPLICABLE STATE LAW.
ARTICLE 5 - SUBCONTRACTORS
5.1 DEFINITIONS OF SUBCONTRACTOR
(a) A Subcontractor is person or entity who has a direct Contract with the Prime Contractor to
perform a portion of the Work at the Project site or to supply materials or equipment to the
Prime Contractor by purchase or lease for use in performance of or incorporation into the
Work. The term "Subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Subcontractor or an authorized representative of the
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Subcontractor. The term "Subcontractor" does not include a separate contractor or
subcontractors of a separate contractor.
(b) A Sub -subcontractor is a person or entity who has a direct or indirect Contract with a
Subcontractor to perform a portion of the Work at the Project site or to supply materials or
equipment to the Subcontractor or another Sub -subcontractor by purchase or lease for use
in performance of or incorporation into the Work. The term "Sub -subcontractor" is referred
to throughout the Contract Documents as if singular in number and means a Sub -
subcontractor or an authorized representative of the Sub -subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF
THE WORK
(a) Immediately after the award of the Contract by the Owner, and before the Building
Construction Services Agreement is signed by the Prime Contractor and the Owner, the
Prime Contractor shall furnish to the Architect/Engineer in writing, for acceptance by the
Owner and the Architect/Engineer, a list of the names, addresses, telephone numbers,
NMBE certification numbers (where applicable), and type of work of the Subcontractors
(including those who are to furnish materials or equipment fabricated to a special design),
proposed for the principal portions of the Work, including furnishings when made a part
of the Contract. The Prime Contractor shall immediately notify the Owner in writing of
any changes in the list as they occur. The Architect/Engineer will promptly reply to the
Contractor in writing stating whether or not the Owner or the Architect/Engineer, after due
investigation, has reasonable objection to any such proposed person or entity. Failure of
the Owner or Architect/Engineer to reply promptly shall constitute notice of no reasonable
objection.
(b) The Prime Contractor shall not Contract with a proposed person or entity to whom the
Owner or Architect/Engineer has made reasonable and timely objection.
(c) Architect/Engineer's and Owner's approval of or objection to any Subcontractor or of a
particular process or material will not relieve the Prime Contractor of his responsibility for
performance of Work as called for under the Contract Documents, and shall not provide a
basis for any claim for additional time or money on the part of the Prime Contractor.
Approval shall not be construed to create any contractual relationship between the
Subcontractor and either the Owner or Architect/Engineer. In no event shall the Contract
Sum be increased as a result of the rejection of any Subcontractor.
(d) The Prime Contractor shall not change a Subcontractor previously selected if the Owner or
Architect/Engineer makes reasonable objection to such change.
5.3 SLBCONTRACTUAL RELATIONS
(a) By appropriate agreement, written where legally required for validity, the Prime Contractor
shall require each Subcontractor, to the extent of the Work to be performed by the
Subcontractor, to be bound to the Prime Contractor by the terms of the Contract Documents
(including but not limited to these General Conditions), and to assume toward the Prime
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Contractor all the obligations and responsibilities which the Prime Contractor, by the
Contract Documents, assumes toward the Owner and the Architect/Engineer. Each
subcontract agreement shall preserve and protect the rights of the Owner and the
Architect/Engineer under the Contract Documents (including but not limited to these
General Conditions) with respect to the Work to be performed by the Subcontractor so that
subcontracting will not prejudice the rights of the Owner and the Architect/Engineer.
Where appropriate, the Prime Contractor shall require each Subcontractor to enter into
similar agreements with Sub -subcontractors. The Prime Contractor shall make available to
each proposed Subcontractor, prior to the execution of the subcontract agreement, copies
of the Contract Documents to which the Subcontractor is to be bound. Subcontractors shall
similarly make copies of applicable portions of such Documents available to their
respective proposed Sub -subcontractors.
(b) The Prime Contractor is solely responsible for making payments properly to the Prime
Contractor's Subcontractors on the Project. During performance of the Work, the Prime
Contractor shall comply with the following additional rules regarding Subcontractor
payments:
(1) The Prime Contractor shall submit, beginning with the Second Application and
Certificate for Payment, a Subcontractor Payment Report (the "Report") with each
Application and Certificate for Payment. The Report shall show all payments made to
date by the Prime Contractor (plus existing retainage) to each Subcontractor involved
in the Project. The Report shall be made on a form approved and supplied by the Owner.
As an alternative to the Report, the Prime Contractor may furnish Affidavits of
Payment Received with the Application and Certificate for Payment, which affidavits
shall be executed by each Subcontractor owed money and paid by Subcontractor during
the previous progress payment period for work or materials furnished on the Project.
RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OF PAYMENT
RECEIVED SHALL BE A CONDITION PRECEDENT TO PAYMENT ON ANY
APPLICATION FOR PAYMENT.
(2) If, for any reason, the Prime Contractor is withholding payment to a Subcontractor due
to a dispute or other problem with performance, the Prime Contractor shall note the
amount withheld and further note that the payment is in dispute. The Owner may, in its
sole discretion, require the Prime Contractor to document and verify the dispute or
other problem in question.
(3) The Owner reserves the right in its sole discretion, to withhold payment to the Prime
Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear
from the Report, statements of payment received or other information furnished to the
Owner that:
(i) the Report has not been properly completed;
(ii) the Prime Contractor has knowingly provided false information regarding payment
of any Subcontractor; or
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(iii) the Prime Contractor has otherwise failed to make payments properly to any
Subcontractor.
(4) THE PRIME CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A
CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A
RESULT OF THE OWNER'S OR ARCHITECT/ENGINEER'S ENFORCEMENT OF
THIS SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR
ANY OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE
A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY
SUBCONTRACTOR AND EITHER THE OWNER OR THE
ARCHITECT/ENGINEER AND SH.'k C,L NOT BE CONSTRUED TO MAKE ANY
SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY, A THIRD -PARTY
BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE PRIME
CONTRACTOR.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of a termination of this Contract by the Owner under Article 14, the Prime
Contractor shall, if requested in writing by the Owner, within fifteen (15) days after the
date notice of termination is sent, deliver and assign to Owner, or any person or entity
acting on the Owner's behalf, any or all subcontracts made by Prime Contractor in the
performance of the Work, and deliver to the Owner true and correct originals and copies
of the subcontract documents. In the event assignment is not requested by the Owner, Prime
Contractor shall terminate all subcontracts to the extent that Owner has not directed
assignment of same and to the extent that they relate to the performance of Work terminated
by the notice of termination.
ARTICLE 6 - CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE
CONTRACTS
(a) The Owner reserves the right to perform construction or operations related to the Project
with the Owner's own forces, and to award separate contracts in connection with other
portions of the Project or other construction or operations on the Project site under
Conditions of the Contract identical or substantially similar to these General Conditions,
including those portions related to insurance and waiver of subrogation. If the Prime
Contractor claims that delay or additional cost is involved because of such action by the
Owner, the Prime Contractor shall make a claim as provided elsewhere in, and in
accordance with the Contract Documents.
(b) When separate Contracts are awarded for different portions of the Project or other
construction or operations on the Project site, the term "Contractor" in the Contract
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Documents in each case shall mean the Contractor who executes each separate Building
Construction Services Agreement with the Owner.
(c) The Owner shall provide for coordination of the activities of the Owner's own forces and
of each separate contractor with the Work of the Prime Contractor, who shall cooperate
with them. The Prime Contractor shall participate with other separate contractors and the
Owner in reviewing their construction schedules when directed to do so. The Prime
Contractor shall, with the approval of the Owner, make any revisions to the construction
schedule deemed necessary after a joint review and mutual agreement. The construction
schedules shall then constitute the schedules to be used by the Prime Contractor, separate
contractors, and the Owner until subsequently revised by mutual agreement or by written
Change Order. If the Prime Contractor believes it is entitled to an adjustment of the
Contract Sum under the circumstances, the Prime Contractor shall submit a written
proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event
the Prime Contractor's Change Order proposal is denied by the Owner, the Prime
Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions.
(d) Unless otherwise provided in the Contract Documents, when the Owner performs
construction or operations related to the Project with the Owner's own forces, the Owner
shall be deemed to be subject to the same obligations and to have the same rights which
apply to the Prime Contractor under these General Conditions, including, without
excluding others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12.
6.2 MUTUAL RESPONSIBILITY
(a) The Prime Contractor shall afford the Owner and separate contractors' reasonable
opportunity for access to and storage of their materials and equipment and the performance
of their activities and shall coordinate the Prime Contractor's construction and operations
with the separate contractors as required by the Contract Documents.
(b) If part of the Prime Contractor's Work depends for proper execution or results upon
construction or operations by the Owner or a separate contractor, the Prime Contractor
shall, prior to proceeding with that portion of the Work, promptly report to the
Architect/Engineer apparent discrepancies or defects in the other construction that would
render it unsuitable for proper execution and results. Failure of the Prime Contractor to so
report shall constitute an acknowledgment that the Owner's or separate contractors
completed or partially completed construction is fit and proper to receive the Prime
Contractor's Work, except as to defects not then reasonably discoverable.
(c) The Owner shall not be liable to the prime Contractor for damages suffered by the Prime
Contractor due to the fault or negligence of a separate contractor or through failure of a
separate contractor to carry out the directions of the Owner or the Architect/Engineer.
Should any interference occur between the Prime Contractor and a separate contractor, the
Architect/Engineer or the Owner may furnish the Prime Contractor with written
instructions designating priority of effort or change in methods, whereupon the Prime
Contractor shall immediately comply with such direction. In such event, the Prime
Contractor shall be entitled to an extension of the Contract Time only for unavoidable
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delays verified by the Architect/Engineer; no increase in the Contract Sum, however, shall
be due to the Prime Contractor.
(d) The Prime Contractor shall promptly remedy damage wrongfully caused by the Prime
Contractor to completed or partially completed construction or to property of the Owner or
separate contractors as provided in Subparagraph 10.2(e).
(e) Should the Prime Contractor cause damage to the work or property of any separate
contractor on the Project, the Prime Contractor shall, upon due notice, settle with the
separate contractor by agreement, if the separate contractor will so settle. If the separate
contractor sues the Owner or submits a claim on account of any damage alleged to have
been so sustained, the Owner shall notify the Prime Contractor who shall defend such
proceedings, at the Prime Contractor's sole expense, and if any judgment or award against
the Owner arises from the separate contractor's claim, the Prime Contractor shall fully pay
or satisfy it and shall reimburse the Owner for any and all attorney's fees and costs which
the Owner has incurred.
(f) The Owner and each separate contractor shall have the same responsibilities for cutting
and patching as are described for the Prime Contractor in Paragraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
If a dispute arises among the Contractor, separate contractors and the Owner as to the
responsibility under their respective contracts for maintaining the Project Site and surrounding
area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may
clean up, but is not obligated to do so, and Owner shall allocate the cost among those parties
responsible, as the Architect/Engineer recommends to be just.
ARTICLE 7 - AMENDMENTS
7.1 CIIANGE ORDERS
(a) A Change Order is a written order to the Contractor, signed by the Owner and the
Architect/Engineer, issued after execution of the Contract, authorizing a change in the
Work, an adjustment in the Contract Sum, or an adjustment to the Contract Time, consistent
with other applicable provisions of this Contract. The Owner, without invalidating the
Contract and without requiring notice of any kind to the sureties, may order changes to the
scope of Work under the Contract by additions, deletions, or other revisions, the Contract
Sum and Contract Time to be adjusted consistent with other applicable provisions of this
Contract. All Change Orders shall be executed on a Change Order form approved by the
Owner and the Owner's City Attorney.
(b) In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change
Orders to verify and confirm the terms and conditions established by Change Order;
however, should the Contractor refuse to sign a Change Order, this shall not relieve him of
his obligation to perform the change directed by the Owner and the Architect/Engineer to
the best of his ability in accordance with the provisions of this Article 7. A Change Order
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signed by the Contractor indicates his agreement with all of the changes approved,
including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE
ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF
TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR
FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR
CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER.
The execution of a Change Order by the Contractor shall constitute conclusive evidence of
the Contractor's agreement to the ordered changes in the Work. The Contractor forever
releases any claim against the Owner for additional time or compensation for matters
relating to or arising out of or resulting from the Work included within or affected by the
executed Change Order. This release applies to claims related to the cumulative impact of
all Change Orders and to any claim related to the effect of a change on other Work.
(c) No extra work (except under emergency conditions) or changes shall be made nor shall
any substitutions, changes or additions to or omissions or deviations from the requirements
of the Drawings and Specifications be made unless pursuant to a written Change Order
signed by the Owner and the Architect/Engineer, it being expressly understood that the
Owner shall not be liable for the cost of extra work or any substitution, change, addition,
omission or deviation from the requirements of the Drawings or Specifications unless the
same shall have been authorized in writing by the Owner and the Architect/Engineer in a
written change order or other Amendment. The provisions of this Paragraph 7.1 shall
control in the event of any inconsistency between such provisions and the other provisions
of this Article 7. See Subparagraph 10.3(a) of the General Conditions for Change Orders
under emergency conditions.
(d) The method of determining the cost or credit to the Owner for any change in the Work shall
be one of the following:
(1) mutual acceptance of a not -to -exceed lump -sum amount properly itemized and
supported by sufficient substantiating data to permit evaluation; or
(2) unit prices stated in the Contract Documents or subsequently agreed upon; or
(3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable
fixed or percentage fee; or
(4) the force account method provided in Subparagraph 7.1(e)
(e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d)
(1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree on a final dollar
figure; or if the Contractor for whatever reason refuses to sign the Change Order in
question; the Contractor, provided he receives a written order signed by the Owner, shall
promptly proceed with the Work involved. The cost of the Work involved shall then be
calculated on the basis of the reasonable jobsite expenditures and savings of those
performing the Work attributable to the changes, including a reasonable allowance for
overhead and profit, such allowance in any case never to exceed fifteen (15%) per cent. In
such case, the Contractor shall keep an itemized accounting of the Work involved, on a
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daily basis, in such form and with the appropriate supporting data as the Architect/Engineer
and Owner may prescribe. Sworn copies of the itemized accounting shall be delivered to
the Architect/Engineer each day during the performance of force account work, with copies
to the Owner.
FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN -TO ITEMIZED
ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER
BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S
DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE
ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work
are limited to the following:
(1) costs of labor, including social security, old age and unemployment insurance, fringe
benefits required by agreement or custom, and worker's compensation insurance;
(2) costs of materials, supplies and equipment (but not to include off-site storage unless
approved in writing by the Owner), whether incorporated or consumed;
(3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from
the Contractor or others;
(4) costs of premiums for all bonds and insurance related to the Work; and
(5) additional costs of supervision and field office personnel directly attributable to the
changed Work. Pending final determination of cost to the Owner, payment of
undisputed amounts on force account shall be included on the Architect/Engineer's
Certificate of Payment as work is completed.
(f) The amount of credit to be allowed to the Owner for any deletion of Work or any other
change which results in a net decrease of the Contract Sum shall be the amount of actual
net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and
profit. When both additions and deletions or credits covering related Work or substitutions
are involved in any one change, the allowance for overhead and profit shall be figured on
the basis of the net increase or decrease with respect to that change.
7.2 SUPPLEMENTAL AGREEMENTS
A written Supplemental Agreement can also be used to implement changes in the Work instead of
a Change Order form, including but not limited to situations involving partial occupancy of the
Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an
increase in the Contract Sum, or special circumstances where it is necessary or more appropriate
for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a
status equal to that of Change Orders for purposes of priority of Contract Documents interpretation,
except that to the extent of a conflict, later Supplemental Agreements in time control over earlier
Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time
controls over earlier dated Change Orders and Supplemental Agreements. The rules of
Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental
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Agreements. 7.3 N -I INO R CHANGES IN THE WORK
The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes
in the Work not involving an adjustment in the Contract Sum or an extension of the Contract
Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be
effected by written order, and shall be binding on the Owner and the Contractor. The
Contractor shall carry out such written orders promptly. These written orders shall not be
deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no
Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor
submits its change proposal, prior to complying with the minor change ordered and in no event
later than ten (10) working days from the date the minor change was ordered, to the Owner for
approval.
7.4 TIME REQUIRED TO PROCESS AMENDMENTS
(a) All of the Contractor's responses to proposal requests shall be accompanied by a complete,
itemized breakdown of costs. Responses to proposal requests shall be submitted
sufficiently in advance of the required work to allow the Owner and the Architect/Engineer
a minimum of thirty (30) calendar days after receipt by the Architect/Engineer to review
the itemized breakdown and to prepare or distribute additional documents as may be
necessary. All of the Prime Contractor's responses to proposal requests shall include a
statement that the cost described in the response represents the complete, total and final
cost and additional Contract Time associated with the extra work, change, addition to,
omission, deviation, substitution, or other grounds for seeking extra compensation under
the Contract Documents, without reservation or further recourse.
(b) All Amendments require approval by either the City Council or, where authorized by the
State law and City ordinance, by the City Manager pursuant to Administrative Action. The
approval process requires a minimum of forty-five (45) calendar days after submission to
the Owner in final form with all supporting data. Receipt of a submission by Owner does
not constitute acceptance or approval of a proposal, nor does it constitute a warranty that
the proposal will be authorized by City Council Resolution, Ordinance or Administrative
Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE
CONSIDERED A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR
INCREASE IN THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS
A RESULT OF THIS PROCESS. Pending the approval described above, the Contractor
will proceed with the work under a pending Amendment only if directed in writing by the
Owner.
ARTICLE 8 - CONTRACT TIME
8.1 DEFINITIONS
(a) Unless otherwise provided, the Contract Time is the period of time, including authorized
adjustments, allotted in the Contract Documents for Substantial Completion of the Work.
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(b) The date of commencement of the Work is the date established in the Notice to Proceed
from the Owner. The date of commencement shall not be postponed by the failure of the
Prime Contractor, or of persons or entities for whom the Prime Contractor is responsible
to act promptly to commence the Work. If the Owner unreasonably delays the issuance of
the notice to proceed, through no fault of the Prime Contractor, the Prime Contractor shall
be entitled only to an equitable extension of the Contract Time; the Contract Sum shall
remain unchanged.
(c) The date of Substantial Completion is the date certified by the Architect/Engineer in
accordance with Paragraph 9.7.
(d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning
and ending at 12:00 midnight, unless otherwise specifically defined by special provision.
8.2 PROGRESS AND COMPLETION
(a) Time limits stated in the Contract Documents are of the essence of the Contract. By
executing the Building Construction Services Agreement, the Prime Contractor confirms
that the Contract Time is a reasonable period for performing the Work.
(b) The Prime Contractor shall not knowingly, except by agreement with or instruction of the
Owner in writing, prematurely commence operations on the Project site or elsewhere prior
to the effective date of insurance to be furnished by the Prime Contractor as required by
Article 11. The date of commencement of the Work shall not be changed by the effective
date of insurance required by Article 11.
8.3 DELAYS AND EXTENSIONS OF TIME
(a) If the Prime Contractor is delayed at any time in the progress of the Work by an act or
neglect of the Owner or Architect/Engineer, or of an employee of either, or of a separate
contractor employed by the Owner, or by changes ordered in the Work, or by labor
disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond
the Prime Contractor's control, or by delay authorized by the Owner pending a claim, or
by other causes which the Architect/Engineer determines may justify delay, then the
Contract Time shall be extended by Change Order for such reasonable time as the
Architect/Engineer and Owner may determine.
(b) Claims relating to Contract Time and time extensions shall be made in accordance with the
applicable provisions of Paragraph 4.3.
(c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE
CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO
ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE PRIME
CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY
ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY
DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR
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INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR
UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK,
INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN
PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR FAULT OF THE
OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S REPRESENTATIVE,
AN EXTENSION OF THE CONTRACT TIME UNDER SUBPARAGRAPH 8.3(a)
BEING THE PRIME CONTRACTOR'S SOLE REMEDY.
(d) The Owner shall have the right to occupy, without prejudice to the right of either party,
any completed or largely completed portions of the structure or Work, notwithstanding the
fact that the Contract Time for completing all or a portion of the Work may not have
expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken
or used.
(e) The Prime Contractor shall promptly suspend the Work when either the Prime Contractor
or the Owner is ordered to do so by a court order from a court having lawful jurisdiction,
and the Prime Contractor will not be entitled to additional compensation by virtue of any
delays resulting from the court order. The Prime Contractor will also not be liable to the
Owner for a delay caused in fact by the Work being suspended by a court order.
(f) The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend
the Work, in whole or in part, for such period or periods as the Architect/Engineer deems
necessary due to unusual or severe weather conditions as are considered unfavorable for
the suitable prosecution of the Work, or due to failure on the part of the Prime Contractor
to correct conditions considered unsafe for workmen or the general public. If it should
become necessary to stop the Work for an indefinite period, the Prime Contractor shall
store all materials in such a manner that they will not obstruct or impede the public
unnecessarily or become damaged in any way, and shall take every precaution to prevent
damage or deterioration of the Work performed. In cases of suspension of the Work under
this Subparagraph, the Prime Contractor shall also provide suitable drainage about the
Work and erect temporary structures where necessary. The Prime Contractor shall not
suspend the Work in whole or in part without written authority from the Architect/Engineer
or the Owner, and shall resume the Work promptly when notified by the Architect/Engineer
or the Owner to resume operations.
(g) In the event of a delay that is the responsibility of the Prime Contractor or any of the
Subcontractors, for which the Prime Contractor is not entitled to a time extension under
the provisions of this Contract, the Owner may direct that the Work be accelerated by
means of overtime, additional crews or additional shifts, or resequencing. This acceleration
shall be at no cost to the Owner and will continue until the Contract Time is restored. In
the event of a delay for which the Prime Contractor is entitled to a time extension, as
determined by the Architect/Engineer, Owner may similarly direct acceleration and the
Prime Contractor agrees to perform same on the basis that the Prime Contractor will be
reimbursed only to the extent described in Subparagraph 4.3(i). THE PRIME
CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION
RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR
PRODUCTIVITY OR EFFICIENCY.
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ARTICLE 9 - PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
The Contract Sum is stated in the Building Construction Services Agreement and, including
authorized adjustments, is the total amount of compensation payable by the Owner to the Prime
Contractor for the performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
Before the first Application for Payment, the Prime Contractor shall submit to the
Architect/Engineer a schedule of values allocated to various portions of the Work, prepared in
such form and supported by such data to substantiate its accuracy as the Architect/Engineer
may require. This schedule, when approved by the Architect/Engineer and the Owner, shall be
used as a basis for the Prime Contractor's Application for Payment. The schedule of values
shall follow the trade division of the Specifications. Prime Contractor's Application for
Payment shall be filed on the current version of AIA Form G702 (Application and Certificate
for Payment), as approved by the Owner.
9.3 APPLICATIONS FOR PAYMENT
(a) At least ten (10) days before the date established for each progress payment, the Prime
Contractor shall submit to the Architect/Engineer an itemized Application for Payment for
Work completed in accordance with the schedule of values. The Application shall be
notarized, if required, and supported by data substantiating the Prime Contractor's right to
payment as the Owner or Architect/Engineer may require, including but not limited to
copies of requisitions from Subcontractors and material suppliers, and reflecting the
applicable retainage as required in the Contract Documents. Prime Contractor's
Application for Payment shall also provide other supporting documentation as the Owner
or the other applicable provisions of the Contract Documents may require.
(b) Applications for Payment may not include requests for payment of amounts the Prime
Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless
the Prime Contractor complies with Clause 5.3(b) (2) of these General Conditions and the
Prime Contractor's Payment Bond Surety consents in writing to payment to the Prime
Contractor of the funds deemed to be in dispute.
(c) Unless otherwise provided in the Contract Documents, progress payments shall include
payment for materials and equipment delivered and suitably stored at the Project site for
subsequent incorporation into the Work within thirty (3 0) days after delivery to the Project
site. If approved in advance by the Owner, payment may similarly be made for materials
and equipment suitably stored away from the Project site at a location agreed upon in
writing. Payment for costs incurred in storage of materials or equipment away from the
Project site will NOT be made by Owner unless:
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(1) the Owner has given prior approval of such off-site storage in writing;
(2) the materials or equipment are stored in a bonded warehouse located in Denton County
and identified with the Project for which they are stored, as evidenced by warehouse
receipts and appropriate documents of title; and
(3) the materials or equipment stored off-site will be incorporated into the Work within
thirty (30) days after delivery. STORAGE IN FACILITIES OF THE
MANUFACTURER OR THE PRIME CONTRACTOR WILL NOT BE
PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN
PRIOR APPROVAL OF SUCH STORAGE IN WRITING.
(d) The Prime Contractor warrants that title to all Work covered by an Application for Payment
will pass to the Owner no later than the time of payment. The Prime Contractor further
warrants that upon submittal of an Application for Payment all Work for which Certificates
for Payment have been previously issued and payments received from the Owner shall be
free and clear of liens, claims, security interests or encumbrances in favor of the Prime
Contractor, Subcontractors, material suppliers, or other persons or entities making a claim
by reason of having provided labor, materials, and equipment relating to the Work.
(e) All materials or equipment delivered to the Project site earlier than thirty (3 0) days prior to
an approved schedule for delivery to the Project site shall be classified as an "early
delivery." All early delivery materials or equipment must have the express written
permission of the Owner to be stored on the Project site. If any unauthorized early delivery
occurs, Prime Contractor shall, at Prime Contractor's expense or at the expense of the
responsible Subcontractor or Supplier, cause such early delivery to be removed from the
Project site and stored off-site until required at the Project site. All costs of labor,
transportation and storage will be included as part of the expense. If the Prime Contractor
fails or refuses to remove unauthorized early delivery materials, the Owner may cause such
materials to be removed at the Prime Contractor's sole expense, and amounts may be
withheld from the Prime Contractor's Application for Payment to reimburse the Owner for
any costs incurred in removing unauthorized early delivery materials. OWNER WILL
NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY
EARLY DELIVERY MATERIALS OR EQUIPMENT, NOR WILL OWNER BE
LIABLE FOR ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR
EQUIPMENT. Any materials or equipment classified as early delivery will not be
approved for payment as stored materials prior to thirty (30) days before the incorporation
of the materials or equipment into the Work, unless storage and payment at an earlier date
is expressly approved in writing by the Owner.
(f) If the Contract Sum is equal to or less than $25,000, and if performance and payment bonds
are not furnished by the Contractor, then no payment applied for will be payable under the
Contract until the Work has been finally completed and accepted.
9.4 CERTIFICATES FOR PAYMENT
(a) The Architect/Engineer will, within ten (10) days after receipt of the Prime Contractor's
Application for Payment, either issue to the Owner a Certificate for Payment, with a copy
to the Prime Contractor, for such amount as the Architect/Engineer determines is properly
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due, or notify the Prime Contractor and Owner in writing of the Architect/Engineer's
reasons for withholding certification in whole or in part as provided in:
(a) City of Denton "General Conditions for Building Construction."
(b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of
AIA Form G702 (Application and Certificate for Payment) as approved by the Owner.
(c) The issuance of a Certificate for Payment will constitute a representation by the
Architect/Engineer to the Owner, based on the Architect/Engineer's observations at the site
and the data comprising the Application for Payment, that the Work has progressed to the
point indicated and that, to the best of the Architect/Engineer's knowledge, information
and belief, quality of the Work is in accordance with the Contract Documents. The
foregoing representations are subject to an evaluation of the Work for conformance with
the Contract Documents upon Substantial and Final Completion, to results of subsequent
tests and inspections, to minor deviations from the Contract Documents correctable prior
to Final Completion and to specific qualifications expressed by the Architect/Engineer.
The issuance of a Certificate for Payment will further constitute a representation that the
Prime Contractor is entitled to payment in the amount certified, subject to the Owner's
approval. The issuance of a Certificate for Payment is not a representation that the
Architect/Engineer has:
(1) made exhaustive or continuous on-site inspections to check the quality or quantity of
the Work;
(2) reviewed construction means, methods, techniques, sequences or procedures;
(3) reviewed copies of requisitions received from Subcontractors and material suppliers
and other data requested by the Owner to substantiate the Prime Contractor's right to
payment; or
(4) made examination to ascertain how or for what purpose the Prime Contractor has used
money previously paid on account of the Contract Sum.
(d) Whenever the Application for Payment for Work done since the last previous Application
for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a
percentage of the Application, less applicable retainage, to the Prime Contractor within
thirty (30) days following Owner's receipt and approval of the Certificate for Payment
certified by the Architect/Engineer. The Application may include acceptable nonperishable
materials delivered to the Work or stored as provided for in Paragraph 9.3(c) and the
payment will be allowed on the net invoice value, less taxes and applicable retainage.
(e) The City is required to withhold retainage for public works contracts in which the total
contract price estimate at the time of execution is more than $400,000; however, this
requirement is applied by the City for all public works contracts in excess of $50,000. The
retainage will be withheld by the Owner from each progress payment until final completion
of the Work by the Contractor, approval of final completion by the Architect/Engineer, and
final acceptance of the Work by the Owner. Unless otherwise required by state law, the
retainage percentage as specified in Exhibit A is based upon the original Contract Sum,
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and will not be affected in the event the original Contract Sum is subsequently increased
by Change Order.
(f) No progress payments shall be made on contracts where performance and payment bonds
are not required or furnished. In such instances, payment for the Work performed will be
made upon final completion and acceptance by the Owner of all Work.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
(a) The Architect/Engineer or the Owner may decide not to certify payment and may withhold
a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect
the Owner's interest, if in the Architect/Engineer's or Owner's opinion the representations
to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect/Engineer
or the Owner is unable to certify payment in the amount of the Application, the
Architect/Engineer or the Owner will notify the Prime Contractor as provided in
Subparagraph 9.4(a). If the Prime Contractor and Architect/Engineer or the Owner cannot
agree on a revised amount, the Architect/Engineer will promptly issue a Certificate for
Payment for the amount for which the Architect/Engineer is able to make the required
representations to the Owner. The Architect/Engineer or the Owner may also decide not to
certify payment or, because of subsequently discovered evidence or subsequent
observations, may nullify the whole or a part of a Certificate for Payment previously issued
to such extent as may be necessary, in the Architect/Engineer's or Owner's opinion, to
protect the Owner from loss because of:
(1) defective or nonconforming Work not remedied;
(2) third -party claims filed or reasonable evidence indicating probable filing of such
claims;
(3) failure of the Prime Contractor to make payments properly to Subcontractors or for
labor, materials, or equipment;
(4) reasonable evidence that the Work cannot be completed for the unpaid balance of the
Contract Sum;
(5) damage to the Owner or another contractor;
(6) reasonable evidence that the Work will not be completed within the Contract Time, and
that the unpaid balance would not be adequate to cover actual or damages for the
anticipated delay;
(7) persistent failure to carry out the Work in accordance with the Contract Documents; or
(8) mathematical or other errors that are discovered in the Application for Payment.
(b) When all of the above reasons that existed for withholding certification are removed or
remedied, then, at that time, certification will be made for amounts previously withheld.
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(c) The Owner may, at its option, offset any progress payment or final payment under the
Contract Documents against any debt (including taxes) lawfully due to the Owner from the
Prime Contractor, regardless of whether the amount due arises pursuant to the terms of the
Contract Documents or otherwise, and regardless of whether or not the debt due to the
Owner has been reduced to judgment by a court.
9.6 PROGRESS PAYrQ ENTS
(a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make
payment in the manner and within the time provided in the Contract Documents, and shall
so notify the Architect/Engineer. The Owner shall not be liable for interest on any late or
delayed progress payment or final payment caused by any claim or dispute, any
discrepancy in quantities, any failure to provide supporting documentation or other
information required with the Application for Payment or as a precondition to payment
under the Contract Documents, or due to any payment the Owner or the Architect/Engineer
has a right to withhold or not certify under the Contract Documents. Notwithstanding the
foregoing, the Owner may refuse to make payment on any Certificate for Payment
(including, without limitation, the final Certificate for Payment) for any default under the
Contract Documents, including but not limited to those defaults set forth in Subparagraph
9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of
withholding payment while any Prime Contractor default remains uncured.
(b) The Prime Contractor shall promptly pay each Subcontractor, upon receipt of payment
from the Owner, out of the amount paid to the Prime Contractor on account of each
Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled,
reflecting percentages actually retained from payments to the Prime Contractor on account
of such Subcontractors portion of the Work. The Prime Contractor shall, by appropriate
agreement with each Subcontractor, require each Subcontractor to make payments to Sub -
subcontractors in similar manner.
(c) The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable,
information regarding percentages of completion or amounts applied for by the Prime
Contractor and action taken thereon by the Architect/Engineer and the Owner on account
of portions of the Work done by such Subcontractor.
(d) Neither the Owner nor the Architect/Engineer shall have an obligation to pay or to see to
the payment of money to a Subcontractor except as may otherwise be required by law. That
obligation belongs to the Prime Contractor or, in the event of the Prime Contractor's failure
to pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph
11.3.
(e) Payment to material suppliers shall be treated in a manner similar to that provided in
Subparagraphs 9.6(b), (c), and (d).
(f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the
Project by the Owner shall not constitute acceptance of Work not performed in accordance
with the Contract Documents.
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9.7 SUBSTANTIAL COMPLETION
(a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date
certified by the Architect/Engineer when construction is sufficiently completed in accordance with
the City Of Denton General Conditions For Building Construction.
(a) the Contract Documents such that the Owner may beneficially occupy and use the Work,
or designated portions of the Work, for the purposes for which it is intended and only trivial
and insignificant items remain which do not affect the Work as a whole.
(b) When the Prime Contractor considers that the Work, or the portion of the Work which the
Owner agrees to accept separately, is Substantially Complete, the Prime Contractor shall
prepare and submit to the Architect/Engineer a comprehensive list of remaining items to
be completed or corrected. The Prime Contractor shall proceed promptly to complete and
correct items on the list (hereinafter called the "punch list"). Failure to include an item on
the punch list does not alter the responsibility of the Prime Contractor to complete all Work
in accordance with the Contract Documents. Upon receipt of the punch list, the
Architect/Engineer will make an inspection to determine whether the Work, or designated
portion of the Work, is Substantially Complete. If the Architect/Engineer's inspection
discloses any item, whether or not included on the punch list, which is not in accordance
with the requirements of the Contract Documents and which renders the Work inspected
not Substantially Complete the Contractor shall, before issuance of the Certificate of
Substantial Completion, complete or correct the item upon notification by the
Architect/Engineer. The Prime Contractor shall then submit a request for another
inspection by the Architect/Engineer to determine Substantial Completion. When the Work
or designated portion of the Work is Substantially Complete, the Architect/Engineer will
prepare a Certificate of Substantial Completion which shall establish the date of Substantial
Completion, shall establish responsibilities of the Owner and the Prime Contractor for
security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the
time within which the Prime Contractor shall finish all items on the punch list
accompanying the Certificate.
(c) The Certificate of Substantial Completion shall be submitted to the Owner and the Prime
Contractor for their written acceptance of responsibilities assigned to them in the
Certificate.
(d) Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Prime Contractor and certification by the Architect/Engineer, the Owner
shall make payment, reflecting adjustment in retainage, if any, for the Work, or portion of
the Work, as provided in the Contract Documents.
9.8 PARTIAL OCCUPANCY OR USE
(a) The Owner may occupy or use any completed or partially completed portion of the Work
at any stage when such portion is designated by separate Supplemental Agreement with
the Prime Contractor, provided such occupancy or use is consented to by the insurer as
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required under Subparagraph 11.2(e) and authorized by public authorities having
jurisdiction over the Work. Such partial occupancy or use may commence whether or not
the portion is Substantially Complete, provided the Owner and Prime Contractor have
accepted in writing the responsibilities assigned to each of them for payments, retainage if
any, security, maintenance, heat, utilities, damage to the Work and insurance, and have
agreed in writing concerning the period for correction of the Work and commencement of
warranties required by the Contract Documents. When the Prime Contractor considers a
portion Substantially Complete, the Prime Contractor shall prepare and submit a list to the
Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Prime
Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the
progress of the Work shall be determined by written agreement between the Owner and
Prime Contractor or, if no agreement is reached, by decision of the Architect/Engineer.
(b) Immediately prior to such partial occupancy or use, the Owner, Prime Contractor, and
Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to
be used in order to determine and record the condition of the Work.
(c) Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work
shall not constitute acceptance of Work not complying with the requirements of the
Contract Documents.
9.9 FINAL COMPLETION AND FINAL PAYNIENT
(a) Upon receipt of written notice that the Work is ready for final inspection and acceptance
and upon receipt of a final Application for Payment, the Architect/Engineer, accompanied
by the Owner's representative, will promptly make final inspection and, when the
Architect/Engineer finds the Work acceptable under the Contract Documents and the
Contract Documents fully performed, the Architect/Engineer will promptly issue a final
Certificate for Payment stating that to the best of the Architect/Engineer's knowledge,
information and belief, and on the basis of the Architect/Engineer's observations and
inspections, the Work has been completed in accordance with terms and conditions of the
Contract Documents and that the entire balance found to be due the Prime Contractor and
noted in said final Certificate is due and payable. The Architect/Engineer's final Certificate
for Payment will constitute a further representation that conditions listed in Subparagraph
9.9(b) as a condition precedent to the Prime Contractor's being entitled to final payment
have been fulfilled. Owner will normally make final payment within thirty (30) days after
Owner's receipt and approval of the final Certificate for Payment. Warranties required by
the Contract Documents shall commence on the date of Substantial Completion of the
Work, unless otherwise provided by separate agreement between the Owner and the Prime
Contractor.
(b) Neither final payment nor any remaining retained percentage shall become due until the
Prime Contractor submits to the Architect/Engineer:
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(1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness
connected with the Work for which the Owner or the Owner's property might be
responsible or encumbered (less amounts withheld by Owner) have been paid or
otherwise satisfied;
(2) a certificate evidencing that insurance required by the Contract Documents to remain
in force after final payment is currently in effect and will not be cancelled or allowed
to expire until at least thirty (30) days prior written notice has been given to the Owner;
(3) a written statement that the Prime Contractor knows of no substantial reason that the
insurance will not be renewable to cover the period required by the Contract
Documents;
(4) a consent of surety to final payment; and
(5) if required by the Owner, other data establishing payment or satisfaction of obligations,
such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may be
designated by the Owner.
(c) As a precondition to final payment by the Owner under this Contract, the Prime
Contractor's affidavit under Clause (b)(1) shall state that the Prime Contractor has paid
each of his subcontractors, laborers or materialmen in full for all labor and materials
provided to Contractor for the Work performed under this Contract. In the event the Prime
Contractor has not paid each of his subcontractors, laborers or materialmen in full, the
Prime Contractor shall state in the affidavit the amount owed and the name of each
subcontractor, laborer or materialmen to whom such payment is owed. IN ANY EVENT,
THE PRIME CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE OWNER'S
STANDARD AFFIDAVIT OF FINAL PAYMENT AND RELEASE AS A
PRECONDITION TO RECEIPT OF FINAL PAYMENT.
(d) If, after Substantial Completion of the Work, final completion of the Work is materially
delayed through no fault of the Prime Contractor or by issuance of Change Orders affecting
final completion and the Architect/Engineer confirms the delay, the Owner shall, upon
application by the Prime Contractor and certification by the Architect/Engineer, and
without terminating the Contract, make payment of the balance due for that portion of the
Work fully completed and accepted. If the remaining balance for Work not fully completed
or corrected is less than retainage stipulated in the Contract Documents, and if bonds have
been furnished, the written consent of surety to payment of the balance due for that portion
of the Work fully completed and accepted shall be submitted by the Contractor to the
Architect/Engineer prior to certification of payment. Payment shall be made under terms
and conditions governing final payment, except that it shall not constitute a waiver of
claims.
(e) The acceptance by the Prime Contractor of the final payment shall operate as and
shall be a complete release of the Owner from all claims or liabilities under the
Contract, for anything done or furnished or relating to the Work or the Project, or
for any act or neglect of the Owner relating to or connected with the Work or the
Project.
ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONNIENTAL
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COMPLIANCE
10.1 SAFETY PRECAUTIONS AND PROGRAMS
The Prime Contractor shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the performance of the Contract, and will
comply with all applicable City, County, State and Federal health and safety regulations.
10.2 SAFETY OF PERSONS AND PROPERTY
(a) The Prime Contractor shall take reasonable precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or loss to:
(1) employees on the Work and other persons who may be affected thereby;
(2) the Work and materials and equipment to be incorporated therein, whether in storage
on or off the site, under care, custody or control of the Prime Contractor or the Prime
Contractor's Subcontractors or Sub -subcontractors; and
(3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal, relocation or
replacement in the course of construction.
(b) The Prime Contractor shall give notices and comply with applicable laws, ordinances,
rules, regulations and lawful orders of public authorities bearing on safety of persons or
property or their protection from damage, injury or loss.
(c) The Prime Contractor shall erect and maintain, as required by existing conditions and
performance of the Contract, reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety regulations
and notifying owners and users of adjacent sites and utilities.
(d) When use or storage of explosives or other hazardous materials or equipment or unusual
methods are necessary for execution of the Work, the Prime Contractor shall exercise
utmost care and carry on such activities under supervision of properly qualified personnel.
(e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner
shall have the right to pre -approve the use of any explosives on the Project; the Prime
Contractor shall not assume in its bid that permission to use explosives will be granted.
The Owner shall NOT be liable for any claim for additional time or compensation as a
result of the Owner's denial of permission to use explosives. Where use of explosives is
permitted by the Owner, the Prime Contractor EXPRESSLY AGREES TO BE SOLELY
RESPONSIBLE for the determination as to whether explosives shall actually be used, and
for any result from the use, handling or storage of explosives, and shall INDEMNIFY,
DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and
employees, and the Architect/Engineer against any and all claims, lawsuits, judgments,
costs or expenses for personal injury (including death), property damage or other harm for
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which recovery of damages is sought, suffered by any person or persons, as the result of
the use, handling or storage of the explosives by the Prime Contractor or any Subcontractor,
REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS
NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR
INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR
FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR
REPRESENTATIVES, OR THE ARCHITECT/ENGINEER AND ITS OFFICERS,
AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any
other indemnity paragraph in this Contract, this paragraph controls. This indemnity
paragraph is intended solely for the benefit of the parties to this Contract and is not intended
to create or grant any rights, contractual or otherwise, to or for any other person or entity.
The Prime Contractor shall famish the Owner and the Architect/Engineer with evidence of
insurance sufficient to cover possible damage or injury, which insurance shall either
include the Owner and the Architect/Engineer as additional insureds or be sufficiently
broad in coverage as to fully protect the Owner and the Architect/Engineer. All explosives
shall be stored in a safe and secure manner, under the care of a competent watchman at all
times, and all storage places shall be marked clearly and conspicuously: "DANGEROUS -
EXPLOSIVES." The method of storing and handling explosives and highly flammable
materials shall conform to Federal and State laws, City of Denton ordinances, and the City
of Denton Fire Department regulations. The Prime Contractor shall notify any
telecommunications and public utility company and any private property owners having
structures in the proximity of the Project Site of the Prime Contractor's intention to use
explosives, and such notice shall be given sufficiently in advance to enable the
telecommunications and public utility companies and private property owners to take such
steps as they may deem necessary to protect their property from injury. The notice shall
not relieve the Prime Contractor of any responsibility for damage resulting from any
blasting operations.
(f) The Prime Contractor shall promptly remedy damage and loss (other than damage or loss
insured under property insurance required by the Contract Documents) to property referred
to in Clauses 10.2(a)(2) and 10.2(a)(3) caused in whole or in part by the Prime Contractor,
a Subcontractor, or anyone directly or indirectly employed by any of them, or by anyone
for whose acts they may be liable and for which the Prime Contractor is responsible under
Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to acts or omissions
of the Owner or Architect/Engineer or anyone directly or indirectly employed by either of
them, or by anyone for whose acts either of them may be liable, and not attributable to the
fault or negligence of the Prime Contractor or any of its Subcontractors. The foregoing
obligations of the Prime Contractor are in addition to the Prime Contractor's obligations
under Paragraph 3.19. To the extent that any such damage or loss may be covered by
property insurance or other insurance required by the Contract Documents, the Owner and
the Prime Contractor shall exercise their best efforts to make a claim and obtain recovery
from the insurers to provide for the cost, in whole or in part, of the repair work or to provide
for reimbursement for such damage or loss.
(g) The Prime Contractor shall designate a responsible member of the Prime Contractor's
organization at the site whose duty shall be the prevention of accidents. This person shall
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be the Prime Contractor's superintendent unless otherwise designated by the Prime
Contractor in writing to the Owner and Architect/Engineer.
(h) The Prime Contractor shall not load or permit any part of the Work or the Project site to be
loaded so as to endanger its safety.
10.3 EMERGENCIES
In an emergency affecting safety, health, or security of persons or property, the Prime
Contractor shall act, at the Prime Contractor's discretion, to prevent threatened damage,
injury, or loss. Additional compensation or extension of time claimed by the Prime
Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and
Article 7.
10.4 PUBLIC CONVENIENCE AND SAFETY
(a) The Prime Contractor shall place materials stored about the Work and shall conduct the
Work at all times in a manner that causes no greater obstruction to the public than is
considered necessary by the Owner. Sidewalks or streets shall not be obstructed, except
by special permission of the Owner. The materials excavated and the construction
materials or plant used in the performance of the Work shall be placed in a manner that
does not endanger the Work or prevent free access to all fire hydrants, water mains and
appurtenances, water valves, gas valves, manholes for the telephone, telegraph signal or
electric conduits, wastewater mains and appurtenances, and fire alarm or police call
boxes in the vicinity.
(b) The Owner reserves the right to remedy any neglect on the part of the Prime Contractor
in regard to public convenience and safety which may come to the Owner's attention,
after twenty-four (24) hours notice in writing to the Prime Contractor. In case of an
emergency, the Owner shall have the right to immediately remedy any neglect without
notice. In either case, the cost of any work done by the Owner to remedy the Prime
Contractor's neglect shall be deducted from the Contract Sum. The Prime Contractor
shall notify the City Traffic Control Department when any street is to be closed or
obstructed. The notice shall, in the case of major thoroughfares or street upon which
transit lines operate, be forty-eight (48) hours in advance. The Owner reserves the right
to postpone or prohibit any closure or obstruction of any streets or thoroughfares to the
extent necessary for the safety and benefit of the traveling public. The Prime Contractor
shall, when directed by the Architect/Engineer or the Owner, keep any street or streets in
condition for unobstructed use by City departments. When the Prime Contractor is
required to construct temporary bridges or make other arrangements for crossing over
ditches or around structures, the Prime Contractor's responsibility for accidents shall
include the roadway approaches as well as the crossing structures.
10.5 BARRICADES, LIGHTS AND WATCHMEN
If the Work is carried on or adjacent to any street, alley or public place, the Prime Contractor
shall, at the Prime Contractor's own cost and expense, furnish, erect and maintain sufficient
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barricades, fences, lights and danger signals, shall provide sufficient watchmen, and shall
take such other precautionary measures as are necessary for the protection of persons or
property and of the Work. All barricades shall be painted in a color that will be visible at
night, shall indicate in bold letters thereon the Prime Contractor's name and shall be
illuminated by lights from sunset to sunrise. The term "lights," as used in this Paragraph,
shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades
with adequate markings and directional devices shall also be erected to keep vehicles from
being driven on or into any Work under construction. The Prime Contractor will be held
responsible for all damage to the Work due to failure of barricades, signs, lights and
watchmen to protect the Work. Whenever evidence is found of such damage, the
Architect/Engineer may order the damaged portion immediately removed and replaced by
the Prime Contractor at Prime Contractor's cost and expense. The Prime Contractor's
responsibility for maintenance of barricades, signs, and lights, and for providing watchmen,
shall not cease until the Project has been finally accepted by the Owner.
10.6 PUBLIC UTILITIES AND OTHER. PROPERTIES TO BE CHANGED
In case it is necessary to change or move the property of the Owner or of any
telecommunications or public utility, such property shall not be removed or interfered with
until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any
public or private utilities to enter upon the Project site for the purpose of making such
changes or repairs of their property that may become necessary during the performance of
the Work. The Owner reserves the right of entry upon the Project site for any purpose,
including repairing or relaying sewer and water lines and appurtenances, repairing structures,
and for making other repairs, changes, or extensions to any of the Owner's property. The
Owner's actions shall conform to the Prime Contractor's current and approved schedule for
the performance of the Work, provided that proper notification of schedule requirements has
been given to the Owner by the Prime Contractor.
10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS
When existing storm sewers or drains have to be taken up or removed, the Prime Contractor
shall at his own expense provide and maintain temporary outlets and connections for all
public and private storm sewers and drains. The Prime Contractor shall also take care of all
storm sewage and drainage which will be received from these storm drains and sewers; for
this purpose, the Prime Contractor shall provide and maintain, at the Prime Contractor's own
expense, adequate pumping facilities and temporary outlets or diversions. The Prime
Contractor shall, at the Prime Contractor's own expense, construct such troughs, pipes, or
other structures necessary and shall be prepared at all times to dispose of storm drainage and
sewage received from these temporary connections until such time as the permanent
connections are built and in service. The existing storm sewers and connections shall be kept
in service and maintained under the Contract, except where specified or ordered to be
abandoned by the Architect/Engineer. All storm water and sewage shall be disposed of in a
satisfactory manner so that no nuisance is created and that the Work under construction will
be adequately protected.
10.8 ARRANGEMENT AND CIIARGE FOR WATER FURNISHED BY THE OWNER;
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ELECTRICITY FOR THE PROJECT
(a) When the Prime Contractor desires to use the Owner's water in connection with the Work,
the Prime Contractor shall make complete and satisfactory arrangements with the Denton
Water Utilities Department and shall be responsible for the cost of the water the Prime
Contractor uses. Where meters are used, the charge will be at the regular established rate;
where no meters are used, the charge will be as prescribed by City ordinance, or where no
ordinance applies, payment shall be based on estimates made by the Denton Water Utilities
Department.
(b) The Prime Contractor shall make complete and satisfactory arrangements for electricity
and metered electrical connections with the Owner or with Denton Municipal Electric in
the event that separately metered electrical connections are required for the Project. The
Prime Contractor shall pay for all electricity used in the performance of the Work through
separate metered electrical connections obtained by the Prime Contractor through the City
of Denton.
10.9 USE OF FIRE HYDRANTS
The Prime Contractor, Subcontractors, and any other person working on the Project shall not
open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire
hydrant, stop valve, or stop cock, or tap any water main belonging to the Owner, unless duly
authorized to do so by the Denton Water Utilities Department in accordance with the Denton
City Code.
10.10 ENVIRONMENTAL COMPLIANCE
(a) The Prime Contractor and its Subcontractors are deemed to have made themselves
familiar with and at all times shall comply with all applicable federal, state or local
laws, rules, regulations, ordinances, and rules of common law now in effect (including
any amendments now in effect), relating to the environment, Hazardous Substances or
exposure to Hazardous Substances, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§
9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et
seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et
seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic
Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A.
§§ 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any
current judicial or administrative interpretation of these laws, rules, regulations,
ordinances, or rules of common law, including but not limited to any judicial or
administrative order, consent decree, or judgment affecting the Project.
(b) In the event the Prime Contractor encounters on the site materials reasonably believed
to be a Hazardous Substance that have not been rendered harmless, and removal of
such materials is not a part of the scope of Work required under the Contract
Documents, the Prime Contractor shall immediately stop Work in the affected area and
report in writing the facts of such encounter to the Architect/Engineer and the Owner.
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Work in the affected area shall not thereafter be resumed except by written order of the
Owner unless and until the material is determined not to be a Hazardous Substance or
the Hazardous Substance is remediated. The Owner may choose to remediate the
Hazardous Substance with a separate contractor or through a Change Order with the
Prime Contractor. If the Owner determines that the Hazardous Substance exists in the
affected area due to the fault or negligence of the Prime Contractor or any of its
Subcontractors, the Prime Contractor shall be responsible for remediating the condition
at the sole expense of the Prime Contractor in accordance with the Prime Contractor's
APPROVED Spill Remediation Plan. An extension of the Contract Time for any delay
in the progress schedule caused as a result of the discovery and remediation of a
Hazardous Substance may be granted by the Owner only if all remaining Work on the
Project must be suspended and the delay cannot be made up elsewhere in the progress
schedule. Any request for an extension of the Contract Time related to the discovery
and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3
and Article 8.
(c) The Prime Contractor shall be responsible for identification, abatement, cleanup,
control, removal, remediation, and disposal of any Hazardous Substance brought into
or upon the site by the Prime Contractor or any Subcontractor or Supplier. The Prime
Contractor shall obtain any and all permits necessary for the legal and proper handling,
transportation, and disposal of the Hazardous Substance and shall, prior to undertaking
any abatement, cleanup, control, removal, remediation, and disposal, notify the Owner
and the Architect/Engineer so that they may observe the activities; provided, however,
that it shall be the Prime Contractor's sole responsibility to comply with all applicable
laws, rules, regulations, or ordinances governing the activities.
(d) Spill Prevention Plan. At least seventy-two (72) hours prior to commencing
performance of any of the Work at the Project site, the Prime Contractor shall submit
to the Owner for review and approval a Spill Prevention and Response Plan (SPRP)
meeting the requirements of federal and state law, rules, and regulations. The SPRP
shall be specially designed for the Prime Contractor's planned work methods and
procedures. The SPRP shall be designed to complement all applicable safety standards,
fire prevention regulations, and pollution prevention policies and procedures. The
SPRP shall include estimates of the quantity and rate of flow should equipment fail,
and detail containment or diversionary structures to prevent spills from leaving the site
or migrating into adjacent properties or navigable waters. The SPRP shall include
methods of recovery of spilled materials and all applicable twenty-four (24) hour
emergency phone numbers, including without limitation that of the Owner's Project
Manager or other designated representative. The Prime Contractor shall not commence
any field work prior to approval of such plan by the Owner. The following additional
rules shall apply with respect to spills caused by the Prime Contractor or a
Subcontractor:
(1) The Prime Contractor shall immediately report any spill or release at the Project
site, whether or not it is associated with this Contract, to the Owner's Project
Manager or other designated representative. Thereafter, within two (2) working
days after the occurrence of such event, the Prime Contractor shall submit a written
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report describing such event in a degree of detail reasonably acceptable to the
Owner.
(2) The Prime Contractor shall immediately respond in accordance with the SPRP in
the event of a spill.
(3) The Prime Contractor shall dispose of spilled materials in accordance with EPA
and Texas Commission on Environmental Quality (TCEQ) regulations and any
other applicable federal, state, or local laws, rules, or regulations. In connection
with such disposals, the Prime Contractor shall use only those transporters and
disposal facilities that are approved in advance in writing by the Owner. A copy of
all transport manifests for the spilled materials shall be obtained and retained in the
Prime Contractor's records for reference purposes, to be provided upon request of
the Architect/Engineer, the Owner, or any governmental regulatory agency with
jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT,
AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE
RESPONSIBILITY OF THE PRIME CONTRACTOR.
(4) For purposes of this Subparagraph (e), the term "spill" includes any kind of
environmental discharge or release.
(e) Clean Air Management Plan. The Prime Contractor shall comply with the Clean Air
Management Plan submitted to and approved by the Owner during the contractor
selection process. The Owner reserves the right, at the Prime Contractor's sole expense,
to require the removal or retrofitting of any equipment used in the course of
construction that does not comply with the Plan submitted to and approved by the
Owner.
(f) The Prime Contractor shall deposit surplus or waste excavation or other materials
removed as part of the Work at a legal disposal site in accordance with all applicable
state, federal, and local laws, rules, regulations, and ordinances. The Prime Contractor
shall submit to the Owner for review and approval all planned disposal sites or
proposed uses for the surplus or waste excavation or other materials prior to removal
of any excavation or other material from the Project site. A copy of all transport
manifests for surplus or waste excavation or other materials shall be obtained and
retained in the Prime Contractor's records for reference purposes, to be provided upon
request to the Architect/Engineer, the Owner, or any governmental regulatory agency
with jurisdiction over the matter.
(g) The Prime Contractor is responsible for obtaining all TXPDES Storm Water Permits
from TCEQ for construction of the Project under regulations contained in 40 CFR Part
122, as amended, pursuant to the Clean Water Act, 33 U.S.C.A. §§1251 et seq. These
regulations require the filing of a notice of intent to obtain and abide by the general
storm water permit for construction activities promulgated by EPA, including but not
limited to cleaning, grading, and excavation that disturb the applicable amount of total
land area. In addition, the Prime Contractor shall comply with all regulations of the
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Owner relating to storm water and storm water runoff management at the Project site
pursuant to Chapter 19, Article IX, Denton City Code, as amended.
(h) The Prime Contractor shall not install any materials in the performance of the Work
that contain asbestos or asbestos-related material such as hydrated mineral silicate,
including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether
friable or non -friable.
(i) The Owner reserves the right in its sole option to exercise the following remedies
(without waiving the right to pursue the imposition of any civil or criminal fines or
penalties that may be imposed under state, federal, or local laws or ordinances), at no
additional cost to the Owner and without an extension of the Contract Time, in the
event the Prime Contractor fails or refuses after seven (7) days advance written notice
from the Owner to comply with the provisions of this Paragraph 10. 10, the terms of the
SPRP, the terms of the Clean Air Management Plan, any storm water permit or other
environmental permit issued in connection with the Work, or any applicable
environmental law, rule, regulation, or ordinance:
(1) suspend all or any portion of the Work until the noncompliance is corrected, or until
a detailed plan to achieve compliance within a reasonably prompt period of time is
prepared by the Prime Contractor and approved by the Owner;
(2) if the Prime Contractor fails to properly address the noncompliance within the time
stipulated by the Owner, perform the necessary remediation or correction work and
backcharge the Prime Contractor for the cost of the remediation or correction; or
(3) terminate the Contract for cause as provided in Article 13.
ARTICLE 11 INSURANCE AND BONDS
11.1 PRIME CONTRACTOR'S INSURANCE
Prime Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.2 PROPERTY INSURANCE
Prime Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.3 `UMBRELLA' LLABILITY INSURANCE
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Prime Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS
Prime Contractors shall refer to the requirements listed within the solicitation document and
resulting contract for all City of Denton insurance requirements. Should a conflict arise
between the solicitation document and the resulting contract, the requirements set forth in the
actual contract shall prevail.
11.5 PERFORMANCE AND PAYMENT BONDS
(a) Subject to the provisions of Subparagraph 11.5(b), the Prime Contractor shall, with the
execution and delivery of the Construction Services Agreement, furnish and file with the
Owner in the amounts required in this Paragraph, the surety bonds described in Clauses
(a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the
City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended;
each bond shall be signed by the Prime Contractor, as Principal, and by an established
bonding company, as surety, meeting the requirements of Subparagraph 11.5(c) and
approved by the Owner. The surety bonds shall be accompanied by an appropriate Power -
of -Attorney clearly establishing the extent and limitations of the authority of each signer
to so sign:
(1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the
total Contract Sum, guaranteeing the full and faithful execution of the Work and
performance of the Contract in accordance with Plans, Specifications and all other
Contract Documents, including any Amendments thereof, for the protection of the
Owner. This bond shall also provide for the repair and maintenance of all defects due
to faulty materials and workmanship that appear within a period of two (2) years from
the date of final completion and acceptance of the improvements by the Owner or lesser
or longer periods as may be otherwise designated in the Contract Documents.
(2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total
Contract Sum, guaranteeing the full and prompt payment of all claimants supplying
labor or materials in the prosecution of the Work provided for in the Contract
Documents and any Amendments thereto, and for the use and protection of each
claimant.
(b) If the Contract Sum, including Owner -accepted alternates and allowances, if any, is greater
than $50,000, Payment bonds in 100% of the Contract Sum are mandatory and shall be
required to be provided by the Contractor. If the Contract Sum is greater than $100,000, a
Payment Bond and Performance Bond in 100% of the Contract amount is mandatory.
(c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds
or who is a party to any litigation against the Owner. All bonds shall be made and executed
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(d)
on the Owner's standard forms, shall be approved by the Owner, and shall be executed by
not less than one corporate surety that is authorized and admitted to do business in the State
of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current
United States Department of the Treasury List of Acceptable Sureties, and is otherwise
acceptable to the Owner. Each bond shall be executed by the Prime Contractor and the
surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively
in Denton County, Texas. Each surety shall designate an agent resident in Denton County,
Texas to whom any requisite statutory notices may be delivered and on whom service of
process may be had in matters arising out of the suretyship.
Contractor will be required to furnish original performance and payment bonds for 100
percent of the total submission price before work is to commence. The Contractor shall
assume all costs in increasing the bond limits if change orders are formally approved.
Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as
amended, from a surety licensed to do business in the State of Texas. The City, at its
option, may waive the payment and performance bond requirements for projects of less
than $50,000.
Bond forms are attached and shall be returned upon notice of contract award by the City. Bonds
should be forwarded to the City of Denton within fourteen (14) calendar days from contract
award. This contract is not fully executed until payment and performance bonds are received
and accepted by the City. Upon approval, a purchase order will be issued.
(e) The failure of the Contractor to deliver the required statutory bonds and evidence of
insurance within fourteen (14) calendar days after the Contract is awarded shall constitute
a material breach of the Prime Contractor's bid proposal and the Owner may rescind the
Contract award and collect or retain the proceeds of the bid security. By reason of the
uncertainty of the market prices or materials and labor, and it being impracticable and
difficult to determine accurately the amount of damages occurring to the Owner by reason
of the Prime Contractor's failure to execute and furnish the statutory bonds within fourteen
(14) calendar days, the filing of a bid proposal with the accompanying bid security will be
considered as an acceptance of this Subparagraph 11.5(e). In the event the Owner should
re -advertise for bids, the defaulting Prime Contractor shall not be eligible to bid, and the
lowest responsible bid obtained in the re -advertisement shall be the bid referred to in this
Paragraph.
ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK
12.1 UNCOVERING OF WORK
(a) If a portion of the Work is covered contrary to the Architect/Engineer's request or to
requirements specifically expressed in the Contract Documents, the Work must, if
required in writing by the Architect/Engineer, be uncovered for the Architect/Engineer's
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observation and be replaced at the Prime Contractor's expense without change in the
Contract Time.
(b) If a portion of the Work has been covered which the Architect/Engineer has not
specifically requested to observe prior to it being covered, the Architect/Engineer may
request to see such Work and it shall be uncovered by the Prime Contractor. If such Work
is in accordance with the Contract Documents, costs of uncovering and replacement shall,
by appropriate Change Order, be charged to the Owner. If any Work is not in accordance
with the Contract Documents, the Prime Contractor shall pay the costs of uncovering,
repair, replacement unless the condition was caused by the Owner or a separate contractor
in which event the Owner shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
(a) The Prime Contractor shall promptly correct Work rejected by the Architect/Engineer as
failing to conform to the requirements of the Contract Documents, whether observed
before or after Substantial Completion and whether or not fabricated, installed or
completed. The Prime Contractor shall bear costs of correcting such rejected Work,
including additional testing and inspections and compensation for the
Architect/Engineer's services and expenses made necessary thereby.
(b) If any of the Work is found to be defective or nonconforming with the requirements of
the Contract Documents, the Prime Contractor shall correct it promptly after receipt of
written notice from the Architect/Engineer or the Owner to do so unless the Owner has
previously given the Prime Contractor a written acceptance or waiver of the defect or
nonconformity. The Prime Contractor's obligation to correct defective or nonconforming
Work remains in effect for:
(1) one year after the date of Substantial Completion of the Work or designated portion
of the Work;
(2) one year after the date for commencement of warranties established by agreement in
connection with partial occupancy under Subparagraph 9.8(a); or
(3) the stipulated duration of any applicable special warranty required by the Contract
Documents.
(c) The one-year period described in Clauses (b)(1) and (b)(2) shall be extended with respect
to portions of the Work performed, repaired, or corrected after Substantial Completion
by the period of time between Substantial Completion and the actual completion of the
Work.
(d) The obligations of the Prime Contractor under this Paragraph 12.2 shall survive final
acceptance of the Work and termination of this Contract. The Owner shall give notice to
the Prime Contractor promptly after discovery of a defective or nonconforming condition
in the Work. The one-year period stated in Clauses (b)(1) and (b)(2) does not limit the
ability of the Owner to require the Prime Contractor to correct latent defects or
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nonconformities in the Work, which defects or nonconformities could not have been
discovered through reasonable diligence by the Owner or the Architect/Engineer at the
time the Work was performed or at the time of inspection for certification of Substantial
Completion or Final Completion. The one year period also does not relieve the Prime
Contractor from liability for any defects or deficiencies in the Work that may be
discovered after the expiration of the one year correction period.
(e) The Prime Contractor shall remove from the Project site portions of the Work which are
not in accordance with the requirements of the Contract Documents and are neither
corrected by the Prime Contractor nor accepted by the Owner.
(f) If the Prime Contractor fails to correct defective or nonconforming Work within a
reasonable time after notice from the Owner or the Architect/Engineer, the Owner may
correct it in accordance with Paragraph 2.4. If the Prime Contractor does not proceed
with correction of defective or nonconforming Work within a reasonable time fixed by
written notice from the Architect/Engineer, the Owner may remove or replace the
defective or nonconforming Work and store the salvageable materials or equipment at
the Prime Contractor's expense. If the Prime Contractor does not pay costs of removal
and storage within ten days after written notice, the Owner may, upon ten (10) additional
days written notice, sell the materials and equipment at auction or at private sale and shall
account for the proceeds after deducting costs and damages that should have been borne
by the Prime Contractor, including compensation for the Architect/Engineer's services
and expenses made necessary as a result of the sale. If the proceeds of sale do not cover
costs which the Prime Contractor should have borne, the Contract Sum shall be reduced
by the deficiency. If payments due to the Prime Contractor then or thereafter are not
sufficient to cover the deficiency, the Prime Contractor shall pay the difference to the
Owner.
(g) The Prime Contractor shall bear the cost of correcting destroyed or damaged construction
of the Owner or separate contractors, whether the construction is completed or partially
completed, that is caused by the Prime Contractor's correction or removal of Work which
is not in accordance with the requirements of the Contract Documents.
(h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of
limitation with respect to other obligations which the Prime Contractor might have under
the Contract Documents. Establishment of the one-year time period as described in
Subparagraph 12.2(b) relates only to the specific obligation of the Prime Contractor to
correct the Work, and has no relationship to the time within which the obligation to
comply with the Contract Documents may be sought to be enforced, nor to the time
within which proceedings may be commenced to establish the Prime Contractor's
liability with respect to the Prime Contractor's obligations other than specifically to
correct the Work.
(i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the
provisions of Article 12 to the same extent as Work originally performed or installed.
12.3 ACCEPTANCE OF NONCONFORMING WORK
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The Owner may, in the Owner's sole discretion, accept Work which is not in accordance with
the requirements of the Contract Documents instead of requiring its removal and correction,
in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment
will be accomplished whether or not final payment has been made.
ARTICLE 13 COMPLETION OF THE CONTRACT; TER-NIINATION; TEMPORARY
SUSPENSION
13.1 FINAL CONI PLETION OF CONTRACT
The Contract will be considered completed, except as provided in any warranty or
maintenance stipulations, bond, or by law, when all the Work has been finally completed, the
final inspection is made by the Architect/Engineer, and final acceptance and final payment is
made by the Owner.
13.2 -WARRANTY FULFILLMENT
Prior to the expiration of the specified warranty period provided for in the Contract
Documents, the Architect/Engineer will make a detailed inspection of the Work and will
advise the Prime Contractor and the Prime Contractor's Surety of the items that require
correction. The Architect/Engineer will make a subsequent inspection and if the corrections
have been properly performed, the Architect/Engineer will issue a letter of release on the
maintenance stipulations to the Prime Contractor and the Surety. If for any reason the Prime
Contractor has not made the required corrections before the expiration of the warranty period,
the warranty provisions as provided for in the Contract Documents shall remain in effect until
the corrections have been properly performed and a letter of release issued.
13.3 TERMINATION BY THE ONVNER FOR CAUSE
(a) Notwithstanding any other provision of these General Conditions, the Work or any
portion of the Work may be terminated immediately by the Owner for any good cause
after giving seven (7) days advance written notice and opportunity to cure to the Prime
Contractor, including but not limited to the following causes:
(1) Failure or refusal of the Prime Contractor to start the Work within ten (10) days after
the date of written notice by the Owner to commence the Work.
(2) A reasonable belief that the progress of the Work being made by the Prime
Contractor is insufficient to complete the Work within the specified time.
(3) Failure or refusal of the Prime Contractor to provide sufficient and proper equipment
or construction forces to properly execute the Work in a timely manner.
(4) A reasonable belief that the Prime Contractor has abandoned the Work.
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(5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise
financially unable to carry on the Work.
(6) Failure or refusal on the part of the Contractor to observe any requirements of the
Contract Documents or to comply with any written orders given by the
Architect/Engineer or the Owner as provided for in the Contract Documents.
(7) Failure or refusal of the Prime Contractor to promptly make good any defects in
materials or workmanship, or any defects of any nature, the correction of which has
been directed in writing by the Architect/Engineer.
(8) A reasonable belief by the Owner that collusion exists or has occurred for the
purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is being
perpetrated on the Owner in connection with the construction of Work under the
Contract.
(9) Repeated and flagrant violation of safe working procedures.
(10) The filing by the Prime Contractor of litigation against the Owner prior to
completion of the Work.
(b) When the Work or any portion of the Work is terminated for any of the causes itemized
above or for any other cause except termination for convenience pursuant to
Subparagraph 13.3(e), the Prime Contractor shall, as of the date specified by the Owner,
discontinue the Work or portion of the Work as the Owner shall designate, whereupon
the surety shall, within fifteen (15) days after the written notice of termination for cause
has been served upon the Prime Contractor and the surety or its authorized agents,
assume the obligations of the Prime Contractor for the Work or that portion of the Work
which the Owner has ordered the Prime Contractor to discontinue and may:
(1) perform the Work with forces employed by the surety;
(2) with the written consent of the Owner, tender a replacement contractor to take over
and perform the Work, in which event the surety shall be responsible for and pay the
amount of any costs required to be incurred for the completion of the Work that are
in excess of the amount of funds remaining under the Contract as of the time of the
termination; or
(3) with the written consent of the Owner, tender and pay to the Owner in settlement the
amount of money necessary to finish the balance of uncompleted Work under the
Contract, correct existing defective or nonconforming Work, and compensate the
Owner for any other loss sustained as a result of Prime Contractor's default.
In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety
shall assume the Prime Contractor's place in all respects, and the amount of funds
remaining unpaid under the Contract shall be paid by the Owner for all Work
performed by the surety or the replacement contractor in accordance with the terms
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of the Contract Documents, subject to any rights of the Owner to deduct any costs,
damages, or actual damages that the Owner may have incurred, including but not
limited to additional fees and expenses of the Architect/Engineer and attorneys fees,
as a result of such termination.
(c) The balance of the Contract Sum remaining at the time of the Prime Contractor's default
and of the termination shall become due and payable to the surety as the Work
progresses, subject to all of the terms, covenants, and conditions of the Contract
Documents. If the surety does not, within the time specified in Subparagraph 13.3(b),
exercise its obligation to assume the obligations of the Contract, or that portion of the
Contract which the Owner has ordered the Prime Contractor to discontinue, then the
Owner shall have the power to complete the Work by contract or otherwise, as it may
deem necessary. The Prime Contractor agrees that the Owner shall have the right to take
possession of or use any or all of the materials, plant, tools, equipment, supplies, and
property of every kind provided by the Prime Contractor for the purpose of the Work,
and to procure other tools, equipment, labor, and materials for the completion of the
Work, and to charge to the account of the Prime Contractor the expenses of completion
and labor, materials, tools, equipment, and incidental expenses. The expenses incurred
by the Owner to complete the Work shall be deducted by the Owner out of the balance
of the Contract Sum remaining unpaid to or unearned by the Contractor. The Prime
Contractor and the surety shall be liable to the Owner for any costs incurred in excess
of the balance of the Contract Sum for the completion and correction of the Work, and
for any other costs, damages, expenses (including but not limited to additional fees of
the Architect/Engineer and attorney's fees), and damages incurred as a result of the
termination.
(d) The Owner shall not be required to obtain the lowest bid for the Work of completing the
Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from
the Contract Sum shall be the actual cost of such Work. In case the Owner's expense is
less than the sum which would have been payable under the Contract, if the same had
been completed by the Prime Contractor, then the Owner may pay to the Prime
Contractor (or the Surety, in the event of a complete termination for cause) the difference
in the cost, provided that the Prime Contractor (or the Surety) shall not be entitled to any
claim for damages or for loss of anticipated profits. In case such expenses for completion
shall exceed the amount which would have been payable under the Contract if the same
had been completed by the Prime Contractor, then the Prime Contractor and his Sureties
shall pay the amount of the excess to the Owner on notice from the Owner for excess
due. When only a particular part of the Work is being carried on by the Owner by
contract or otherwise under the provisions of this Subparagraph, the Prime Contractor
shall continue the remainder of the Work in conformity with the terms of the Contract,
and in such manner as not to hinder or interfere with the performance of workmen
employed and provided by the Owner.
(e) The unconditional right to terminate this Contract for the convenience of the Owner
(including but not limited to non -appropriation of funding) is expressly retained by the
Owner. In the event of termination for convenience, the Owner shall deliver at least ten
(10) days advance written notice of termination for convenience to the Prime Contractor.
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Upon the Prime Contractor's receipt of such written notice, the Prime Contractor shall
cease the performance of the Work and shall take reasonable and appropriate action to
secure and protect the Work in place. The Prime Contractor shall then be reimbursed by
the Owner in accordance with the terms and provisions of the Contract Documents, not
to exceed actual labor costs incurred, materials stored at the Project site or away from
the Project site as approved by the Owner but not yet paid for, plus actual, reasonable,
and documented termination charges, if any, paid by the Prime Contractor in connection
with the Work in place which is completed and in conformance with the Contract
Documents to the date of termination for convenience. No amount shall ever be due to
the Prime Contractor for lost or anticipated profits.
13.4 TEMPORARY SUSPENSION OF THE WORK
(a) The Work or any portion of the Work may be temporarily suspended by the Owner
immediately upon written notice to the Prime Contractor for any reason, including but
not limited to:
(1) the causes described in Clauses 13.1(a)(1) through (a)(10) above;
(2) where other provisions in the Contract Documents require or permit temporary
suspension of the Work;
(3) situations where the Work is threatened by, contributes to, or causes an immediate
threat to public health, safety, or security; or
(4) other unforeseen conditions or circumstances.
(b) The Prime Contractor shall immediately resume the temporarily suspended Work when
ordered in writing by the Owner to do so. The Owner shall not under any circumstances
be liable for any claim of the Prime Contractor arising from a temporary suspension due
to a cause described in Clause (a)(1) above; provided, however, that in the case of a
temporary suspension for any of the reasons described under Clauses (a)(2) through
(a)(4), where the Prime Contractor is not a contributing cause of the suspension under
one of those Clauses or where the provision of the Contract Documents in question
specifically provides that the suspension is at no cost to the Owner, the Owner will make
an equitable adjustment for the following items, provided that a claim is properly made
by the Prime Contractor under Subparagraph 4.3 of these General Conditions:
(1) an equitable extension of the Contract Time, not to exceed the actual delay caused
by the temporary suspension as determined by the Architect/Engineer and the
Owner;
(2) an equitable adjustment to the Contract Sum for the actual, necessary, and
reasonable costs of properly protecting any Work that is finished or partially
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finished during the period of the temporary suspension (no profit and overhead shall
be allowed on top of these costs); and
(3) if it becomes necessary to move equipment from the Project site and then return it
to the Project site when the Work is ordered to be resumed, an equitable adjustment
to the Contract Sum for the actual, necessary, and reasonable cost of these moves;
provided, however, that no adjustment shall be due if the equipment is moved to
another Project site of the Owner.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 GOVERNING LAW; COMPLIANCE `'WITH LAWS AND REGULATIONS
(a) This Contract shall be in all things governed by the laws of the State of Texas without
regard to conflict of laws principles.
(b) The Contractor shall, during the performance of the Work, comply with all applicable
City codes and ordinances, as amended, and all applicable State and Federal laws, rules
and regulations, as amended.
14.2 SUCCESSORS AND ASSIGNS
The Owner and the Prime Contractor respectively bind themselves, their partners, successors,
assigns, and legal representatives to the promises, covenants, terms, conditions, and
obligations contained in the Contract Documents. The Prime Contractor shall not assign,
transfer, or convey its interest or rights in the Contract, in part or as a whole, without written
consent of the Owner. If the Prime Contractor attempts to make an assignment, transfer, or
conveyance without the Owner's written consent, the Contractor shall nevertheless remain
legally responsible for all obligations under the Contract Documents. The Owner shall not
assign any portion of the Contract Sum due or to become due under this Contract without the
written consent of the Prime Contractor, except where assignment is compelled or allowed by
court order, the terms of the Contract Documents, or other operation of law.
14.3 WRITTEN NOTICE
Except as otherwise provided in Article 16, any notice, payment, statement, or demand
required or permitted to be given under this Contract by either party to the other may be
effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or
Superintendent of either parry, or to an officer, partner, or other designated representative of
either parry. Mailed notices shall be addressed to the parties at an address designated by each
party, but each party may change its address by written notice in accordance with this section.
Mailed notices shall be deemed communicated as of three (3) days after mailing.
14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER
(a) The duties and obligations imposed on the Prime Contractor by the Contract Documents
and the rights and remedies available to the Owner under the Contract Documents shall be in
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addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise
imposed or made available by law.
(b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the
Owner under the Contract Documents, nor shall any action or failure to act by the Owner
constitute approval of or acquiescence in a breach of the Contract by Prime Contractor, except
as may be specifically agreed in writing by Change Order or Supplemental Agreement.
14.5 INTEREST
The Owner shall not be liable for interest on any progress or final payment to be made under
the Contract Documents, except as may be provided by the applicable provisions of the
Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to
Paragraph 9.6(a) of these General Conditions.
14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL
INTEREST IN ANY CONTRACT OF THE OWNER
No officer or employee of the Owner shall have a financial interest, direct or indirect, in any
Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the
Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer
or employee as defined in the City's Ethic Ordinance 18-757 and in the City Charter chapter
2 article XI(Ethics). Any violation of this article shall constitute malfeasance in office, and
any officer or employee of Owner guilty thereof shall thereby forfeit his office or position.
Any violation of this section, with the knowledge, express or implied, of the person, persons,
partnership, company, firm, association or corporation contracting with the Owner shall
render the Contract involved voidable by the Owner's City Manager or City Council.
14.7 VENUE
This Contract is deemed to be performed in Denton County, Texas, and if legal action is
necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas.
14.8 INDEPENDENT CONTRACTOR
In performing the Work under this Contract, the relationship between the Owner and the
Prime Contractor is that of an independent contractor. The Prime Contractor shall exercise
independent judgment in performing the Work and is solely responsible for setting working
hours, scheduling or prioritizing the Work flow and determining the means and methods of
performing the Work, subject only to the requirements of the Contract Documents. No term
or provision of this Contract shall be construed as making the Prime Contractor an agent,
servant, or employee of the Owner, or making the Prime Contractor or any of the Prime
Contractor's employees, agents, or servants eligible for the fringe benefits, such as retirement,
insurance and worker's compensation, which the Owner provides to its employees.
14.9 NONDISCRIMINATION
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As a condition of this Contract, the Prime Contractor covenants that he will take all necessary
actions to insure that, in connection with any work under this Contract, the Prime Contractor
and its Subcontractors will not discriminate in the treatment or employment of any individual
or groups of individuals on the grounds of race, color, religion, national origin, age, sex,
sexual orientation, or handicap unrelated to job performance, either directly, indirectly or
through contractual or other arrangements. The Prime Contractor shall also comply with all
applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101-12213,
as amended. In this regard, the Prime Contractor shall keep, retain and safeguard all records
relating to his Contract or Work performed thereunder for a minimum period of three (3) years
from final Contract completion, with full access allowed to authorized representatives of the
Owner, upon request, for purposes of evaluating compliance with this and other provisions of
the Contract.
14.10 GIFTS TO PUBLIC SERVANTS
(a) The Owner may terminate this Contract immediately if the Prime Contractor has
offered, conferred, or agreed to confer any benefit on a City of Denton employee or
official that the City of Denton employee or official is prohibited by law from
accepting.
(b) For purposes of this Article, "benefit" means anything reasonably regarded as
pecuniary gain or pecuniary advantage, including benefit to any other person in whose
welfare the beneficiary has a direct or substantial interest, but does not include a
contribution or expenditure made and reported in accordance with law.
(c) Notwithstanding any other legal remedies, the Owner may require the Prime Contractor
to remove any employee of the Prime Contractor from the Project who has violated the
restrictions of this Article or any similar State or Federal law, and obtain reimbursement
for any expenditures made to the Prime Contractor as a result of the improper offer,
agreement to confer, or conferring of a benefit to a City of Denton employee or official.
ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS
By execution of the Building Construction Services Agreement, the Prime Contractor grants the
Owner the right to audit, at the Owner's election, all of the Prime Contractor's records and billings
relating to the performance of the Work under the Contract Documents. The Prime Contractor
agrees to retain its Project records for a minimum of five (5) years following completion of the
Work. The Owner agrees that it will exercise the right to audit only at reasonable hours. City may
review any and all of the services performed by Prime Contractor under this Contract. Any
payment, settlement, satisfaction, or release made or provided during the course of performance
of this Contract shall be subject to City's rights as may be disclosed by an audit under this section.
ARTICLE 16 NOTICE OF CONTRACT CLAIM
This Contract is subject to the provisions of the Denton City Code, as amended, relating to
requirements for filing a notice of a breach of contract claim against City. Prime Contractor shall
comply with the requirements of this ordinance as a precondition of any litigation relating to this
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Contract, in addition to all other requirements in this Contract related to claims and notice of
claims.
Should a conflict arise between any of the contract documents, it shall be resolved with the
following order of precedence (if applicable). In any event, the final negotiated contract shall
take precedence over any and all contract documents to the extent of such conflict.
1. Final negotiated contract
2. RFP/Bid documents
3. City's standard terms and conditions
4. Purchase order
5. Contractor terms and conditions
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EXHIBIT D
PAYMENT AND PERFORMANCE BOND REQUI RENI ENTS
Contractor will be required to furnish original performance and payment bonds for one hundred
(100%) percent of the total submission price before work is to commence. The Contractor shall
assume all costs in increasing the bond limits if change orders are formally approved. Bonds shall
be in accordance with the V.T.C.A Government Code Section 2253.021, as amended, from a surety
licensed to do business in the State of Texas. The City, at its option, may waive the payment and
performance bond requirements for projects of less than $50,000.
Bond forms are attached and shall be returned upon notice of contract award by the City. Bonds
should be forwarded to the City of Denton within fourteen (14) calendar days from contract award.
This contract is not fully executed until payment and performance bonds are received and accepted
by the City. Upon approval, a purchase order will be issued.
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EXHIBIT E
INSURANCE REQUIREMENTS AND
WORKERS' COMPENSATION REQUIREMENTS
Upon contract execution, all insurance requirements shall become contractual obligations, which
the successful contractor shall have a duty to maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall
provide and maintain until the contracted work has been completed and accepted by the City of
Denton, Owner, the minimum insurance coverage as indicated hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of insurance
including any applicable addendum or endorsements, containing the contract number and title
of the project. Contractor may, upon written request to the Purchasing Department, ask for
clarification of any insurance requirements at any tinze; however, Contractor shall not
commence any work or deliver any material until he or she receives notification that the contract
has been accepted, approved, and signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall comply
with the following general specifications, and shall be maintained in compliance with these
general specifications throughout the duration of the Contract, or longer, if so noted.-
Each
oted.
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 or better.
• Any deductibles or self-insured retentions shall be declared in the proposal. If requested
by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions
with respect to the City, its officials, agents, employees and volunteers; or, the contractor
shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
• Liability policies shall be endorsed to provide the following:
Name as Additional Insured the City of Denton, its Officials, Agents, Employees
and volunteers.
■ That such insurance is primary to any other insurance available to the Additional
Insured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not operate to increase the insurer's
limit of liability.
■ Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents,
employees, and volunteers.
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• Cancellation: City requires 30 day written notice should any of the policies described all
the certificate be cancelled or materially changed before the expiration date.
• Should any of the required insurance be provided under a claims made form, Contractor
shall maintain such coverage continuously throughout the term of this contract and, without
lapse, for a period of three years beyond the contract expiration, such that occurrences
arising during the contract term which give rise to claims made after expiration of the
contract shall be covered.
• Should any of the required insurance be provided under a form of coverage that includes a
general annual aggregate limit providing for claims investigation or legal defense costs to
be included in the general annual aggregate limit, the Contractor shall either double the
occurrence limits or obtain Owners and Contractors Protective Liability Insurance.
• Should any required insurance lapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receives satisfactory
evidence of reinstated coverage as required by this contract, effective as of the lapse date.
If insurance is not reinstated, City may, at its sole option, terminate this agreement effective
on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall additionally
comply with the following marked specifications, and shall be maintained in compliance with
these additional specifications throughout the duration of the Contract, or longer, if so noted.
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than $1,000.000.00
shall be provided and maintained by the Contractor. The policy shall be written on an
occurrence basis either in a single policy or in a combination of underlying and
umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
Coverage A shall include premises, operations, products, and completed
operations, independent contractors, contractual liability covering this
contract and broad form property damage coverage.
• Coverage B shall include personal injury.
• Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
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• Bodily injury and Property Damage Liability for premises, operations, products
and completed operations, independent contractors and property damage
resulting from explosion, collapse or underground (XCU) exposures.
Broad form contractual liability (preferably by endorsement) covering this
contract, personal injury liability and broad form property damage liability.
[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined
Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination
of basic and umbrella or excess policies. The policy will include bodily injury and property
damage liability arising out of the operation, maintenance and use of all automobiles and
mobile equipment used in conjunction with this contract.
Satisfaction of the above requirement shall be in the form of a policy endorsement for:
• any auto, or
• all owned hired and non -owned autos.
[X] Workers' Compensation Insurance
Contractor shall purchase and maintain Workers' Compensation insurance which, in
addition to meeting the minimum statutory requirements for issuance of such insurance,
has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each
employee, and a $500,000 policy limit for occupational disease. The City need not be
named as an "Additional Insured" but the insurer shall agree to waive all rights of
subrogation against the City, its officials, agents, employees and volunteers for any work
performed for the City by the Named Insured. For building or construction projects, the
Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096
of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation
Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of the
work under this contract, an Owner's and Contractor's Protective Liability insurance policy
naming the City as insured for property damage and bodily injury which may arise in the
prosecution of the work or Contractor's operations under this contract. Coverage shall be
on an "occurrence" basis and the policy shall be issued by the same insurance company
that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00
combined bodily injury and property damage per occurrence with a $1,004,000.00
aggregate.
[ ] Fire Damage Legal Liability Insurance
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Coverage is required if Broad form General Liability is not provided or is unavailable to
the contractor or if a contractor leases or rents a portion of a City building. Limits of not
less than each occurrence are required.
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
[X] Builders' Risk Insurance
Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be
provided. Such policy shall include as "Named Insured" the City of Denton and all
subcontractors as their interests may appear.
[ ] Environmental Liability Insurance
Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this
contract.
[ ] Riggers Insurance
The Contractor shall provide coverage for Rigger's Liability. Said coverage may be
provided by a Rigger's Liability endorsement on the existing CGL coverage; through and
Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11,
Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by the
CGL coverage
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside
the premises, burglary of the premises, and employee fidelity. The employee fidelity
portion of this coverage should be written on a "blanket" basis to cover all employees,
including new hires. This type insurance should be required if the contractor has access to
City funds. Limits of not less than $ each occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts and
specific service agreements. If such additional insurance is required for a specific contract,
that requirement will be described in the "Specific Conditions" of the contract
specifications.
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ATTACHMENT 1
[X] Workers' Compensation Coverage for Building or Construction Projects for
Governmental Entities
A. Defmitions:
Certificate of coverage ("certificate") -A copy of a certificate of insurance, a certificate
of authority to self -insure issued by the commission, or a coverage agreement (TWCC-
81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation
insurance coverage for the person's or entity's employees providing services on a
project, for the duration of the project.
Duration of the project - includes the time from the beginning of the work on the
project until the contractor's/person's work on the project has been completed and
accepted by the governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) - includes all
persons or entities performing all or part of the services the contractor has undertaken
to perform on the project, regardless of whether that person contracted directly with
the contractor and regardless of whether that person has employees. This includes,
without limitation, independent contractors, subcontractors, leasing companies, motor
carriers, owner -operators, employees of any such entity, or employees of any entity
which furnishes persons to provide services on the project. "Services" include, without
limitation, providing, hauling, or delivering equipment or materials, or providing
labor, transportation, or other service related to a project. "Services" does not include
activities unrelated to the project, such as food/beverage vendors, office supply
deliveries, and delivery of portable toilets.
B. The contractor shall provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any overage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all employees
of the Contractor providing services on the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental entity prior
to being awarded the contract.
D. If the coverage period shown on the contractor's current certificate of coverage ends
during the duration of the project, the contractor must, prior to the end of the coverage
period, file a new certificate of coverage with the governmental entity showing that
coverage has been extended.
E. The contractor shall obtain from each person providing services on a project, and
provide to the governmental entity:
a certificate of coverage, prior to that person beginning work on the project, so
the governmental entity will have on file certificates of coverage showing
coverage for all persons providing services on the project; and
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2. no later than seven days after receipt by the contractor, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project.
F. The contractor shall retain all required certificates of coverage for the duration of the
project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail or
personal delivery, within 10 days after the contractor knew or should have known, of
any change that materially affects the provision of coverage of any person providing
services on the project.
H. The contractor shall post on each project site a notice, in the text, form and manner
prescribed by the Texas Workers' Compensation Commission, informing all persons
providing services on the project that they are required to be covered, and stating how
a person may verify coverage and report lack of coverage.
I. The contractor shall contractually require each person with whom it contracts to
provide services on a project, to:
provide coverage, based on proper reporting of classification codes and payroll
amounts and filing of any coverage agreements, which meets the statutory
requirements of Texas Labor Code, Section 401.011(44) for all of its employees
providing services on the project, for the duration of the project;
2. provide to the contractor, prior to that person beginning work on the project, a
certificate of coverage showing that coverage is being provided for all employees
of the person providing services on the project, for the duration of the project;
3. provide the contractor, prior to the end of the coverage period, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
4. obtain from each other person with whom it contracts, and provide to the contractor:
a. a certificate of coverage, prior to the other person beginning work on the project;
and
b. a new certificate of coverage showing extension of coverage, prior to the end of
the coverage period, if the coverage period shown on the current certificate of
coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the project and
for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the person knew or should have known, of any change that
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materially affects the provision of coverage of any person providing services on the
project; and
7. Contractually require each person with whom it contracts, to perform as required
by paragraphs (1) - (7), with the certificates of coverage to be provided to the person
for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all employees
of the contractor who will provide services on the project will be covered by workers'
compensation coverage for the duration of the project, that the coverage will be based
on proper reporting of classification codes and payroll amounts, and that all coverage
agreements will be filed with the appropriate insurance carrier or, in the case of a self-
insured, with the commission's Division of Self -Insurance Regulation. Providing false
or misleading information may subject the contractor to administrative penalties,
criminal penalties, civil penalties, or other civil actions.
K. The contractor's failure to comply with any of these provisions is a breach of contract
by the contractor which entitles the governmental entity to declare the contract void if
the contractor does not remedy the breach within ten days after receipt of notice of
breach from the governmental entity.
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Exhibit F
1 SECTION 00 4101
2 PROPOSAL FORM - RFP
4 TO: Christa Christian
5 c/o: Purchasing Division
6 901-B Texas Street
7 Denton, Texas 76209
8
9 FOR: Construction of Fence at Denton Service Center
10
11 1 Enter into Agreement
12
13 The undersigned Offeror proposes and agrees, if this Proposal is accepted, to enter into an
14 Agreement with City in the form included in the Proposal Documents to perform and furnish all
15 Work as specified or indicated in the Contract Documents for the Unit Price Proposal and within
16 the Contract Time indicated in this Proposal and in accordance with the other terms and
17 conditions of the Contract Documents.
18
19 2 OFFEROR Acknowledgements and Certification
20
21 2.1 In submitting this Proposal, Offeror accepts all the terms and conditions of the solicitation,
22 including without limitation those dealing with the disposition of Offeror's Bond.
23 2.2 Offeror is aware of all costs to provide the required insurance, will do so pending contract
24 award, and will provide a valid insurance certificate meeting all requirements within 14
25 days of notification of award.
26 2.3 Offeror certifies that this Proposal is genuine and not made in the interest of or on behalf of
27 any undisclosed individual or entity and is not submitted in conformity with any collusive
28 agreement or rules of any group, association, organization, or corporation.
29 2.4 Offeror has not directly or indirectly induced or solicited any other Offeror to submit a
30 false or sham Proposal.
31 2.5 Offeror has not solicited or induced any individual or entity to refrain from proposing.
32 2.6 Offeror has not engaged in corrupt, fraudulent, collusive, or coercive practices in
33 competing for the Contract. For the purposes of this Paragraph:
34 a. "corrupt practice" means the offering, giving, receiving, or soliciting of anything
35 of value likely to influence the action of a public official in the proposal process.
36
37 b. "fraudulent practice" means an intentional misrepresentation of facts made (a) to
38 influence the proposal process to the detriment of City (b) to establish proposal
39 prices at artificial non-competitive levels, or (c) to deprive City of the benefits of
40 free and open competition.
41
42 c. "collusive practice" means a scheme or arrangement between two or more
43 Offerors, with or without the knowledge of City, a purpose of which is to
44 establish proposal prices at artificial, non-competitive levels.
45
46 d. "coercive practice" means harming or threatening to harm, directly or indirectly,
47 persons or their property to influence their participation in the proposal process
48 or affect the execution of the Contract.
49
DocuSign Envelope ID: B73973EA-4A8D-4F81-93E9-365A3FE5D4E8
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2.7 The Offeror acknowledges and agrees to comply with the requirements of City Ethics
Ordinance No. 18-757.
3 Time of Completion
3.1 The Work will be Substantially Complete as defined in the Supplementary Conditions
within 200 Days after the date when the Contract Time commences to run, which is the day
indicated in the Notice to Proceed, plus any extension thereof allowed in accordance with
Article 11 of the General Conditions.
3.2 The Work will be complete for Final Acceptance within 230 Days after the date when the
Contract Time commences to run, which is the day indicated in the Notice to Proceed, plus
any extension thereof allowed in accordance with Article 11 of the General Conditions.
3.3 Offeror accepts the provisions of the Agreement as to Liquidated Damages in the event of
failure to obtain Milestones (if applicable), Substantial Completion, and Final Acceptance
within the times specified in the Agreement.
4 Total Proposal Amount
4.1 Offeror will complete the Work in accordance with the Contract Documents for the
following proposal amount. In the space provided below, please enter the total proposed
amount for this project. This figure will be read publicly by the City at the proposal
opening.
4.2 It is understood and agreed by the Offeror in signing this proposal that the total proposed
amount entered below is subject to verification and/or modification by multiplying the unit
prices for each pay item by the respective estimated quantities shown in this proposal and
then totaling all of the extended amounts.
Total Proposal Amount:
5 Proposal Submittal
$ 677,856.00
5.1 It is understood by Offeror that submission of the total proposal amount is only one of the
factors for the City's evaluation process, and that any award of contract will be based on
the complete evaluation of the Proposal and Offeror by City under the terms provided in
the Instructions to Offerors or any validly issued amendments or addenda.
5.2 This Proposal is submitted on October 18 , 2021 by the entity
named below.
Respectfully submitted,
By: J�4�+
(Signatur
ROHIT SINGLA
(Printed Name)
Title: President
DocuSign Envelope ID: B73973EA-4A8D-4F81-93E9-365A3FE5D4E8
1 Company: INFRA CONSTRUCTION, LLC
2
3 Address: 539 W. Commence St, #1685
4 Dallas, TX 75208
5 State of Incorporation: Texas
6 Email: rsingla@infra-construction.com
7 Phone: 214-906-1908
8 END OF SECTION
DocuSign Envelope ID: B73973EA-4A8D-4F81-93E9-365A3FE5D4E8
EXHIBIT G
CONFLICT OF INTEREST QUESTIONN4.IRE
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.S. 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 knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
I Name of vendor who has a business relationship with local governmental entity.
Infra Construction, 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 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(l -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 officer
named in this section AND the taxable income is not received from the local governmental entity?
0 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?
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 10/18/2021
Signature of vendor doing business with the governmental entity Date