2008-250ORDINANCE NO. 909-2V
AN ORDINANCE OF THE CITY COUNCIL AUTHORIZING THE CITY MANAGER OR HIS
DESIGNEE TO EXECUTE AN AGREEMENT FOR DESIGN/BUILD SERVICES FOR THE
RENOVATION OF AN EXISTING BUILDING AND CONSTRUCTION OF A NEW 6,000
SQUARE FOOT BUILDING FOR THE CITY OF DENTON FACILITIES MANAGEMENT
DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE (RFP 4061-DESIGN/BUILD NEW FACILITIES
MANAGEMENT BUILDING, IN AN AMOUNT NOT TO EXCEED $1,462,371 AWARDED TO
TIM BEATY BUILDERS, INC.).
WHEREAS, the City is desirous of renovating an existing building and constructing a new
Facilities Management building; and
WHEREAS, pursuant to authority delegated by City ordinance, prior to advertisement for
Design/Build Services to construct the Project, the purchasing Agent, determined that the
Design/Build procurement method for the Project provides the best value to the City; and
WHEREAS, the Purchasing Agent has fully complied with all of the procedural steps for the
Design/Build procurement as required by Subchapter H, Chapter 271 of the Local Government Code
as well as all city ordinances, regulations and the City Charter; and
WHEREAS, the City Council finds that Tim Beaty Builders, Inc. (the "Contractor") in
conjunction with Kirkpatrick Architecture Studio (the "Architect/Engineer") as a Design/Build Team
submitted the proposal offering the best value to the City on the basis of the selection criteria; and
WHEREAS, the City has successfully negotiated an Agreement for Design/Build Services
with the Contractor which will be substantially in the form of the instrument a copy of which is
attached hereto and made apart hereof by reference (the "Design/Build Agreement"); and
WHEREAS, the City Council finds that the Design/Build Agreement is in the public interest;
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings contained in the preamble of this ordinance are incorporated
herein by reference.
SECTION 2. The City Council hereby approves the Design/Build Agreement. The City
Manager or his designee is authorized to sign the Design/Build Agreement on behalf of the City and
to exercise the City's rights and duties thereunder, including without limitation the expenditure of
funds provided for in the Design/Build Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the Z/~eday of ,2008.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
3-ORD- 4061
AGREEMENT FOR DESIGN-BUILD SERVICES
This Agreement is made as of the 21 st day of October , 2008 between the City of
Denton, Texas, a home rule municipal corporation, hereinafter referred to as "Owner", and Tim
Beaty Builders, Inc. ; a Texas corporation whose principal
place of business is P.O. Box 68, Denton, Texas 76202
hereinafter referred to as "Contractor" for the following Project: Design/Build for New Facilities
Management Building The Owner and Contractor agree as set forth below.
ARTICLE 1
GENERAL PROVISIONS
1.1 GENERAL PROVISIONS
1.1.1. DESIGN-BUILD PROCUREMENT The services of Contractor under this Agreement
were procured by Owner pursuant to the provisions of Section 271.119 of the Texas Local Government
Code. Contractor is a part of a design-build Team consisting of itself and Kirkpatrick Architecture
Studio , a Texas corporation (called the "Architect/Engineer") whose principal place
of business is 100 West Mulberry Street, Denton, Texas 76201 . The
Contractor and Architect/Engineer are hereinafter called the "Design-Build Team". The Contractor and
Architect/Engineer have entered into an agreement which provides that the Architect/Engineer will provide
design services for the Project (the "Team/Subcontract Agreement"). The Contractor agrees that the
Design-Build services provided for in this Agreement shall be provided by the Design-Build Team with the
Architect/Engineer providing the architectural and engineering services.
1.1.2. TEAM RELATIONSHIP The owner and the Contractor agree to proceed with the Project
on the basis of trust, good faith and fair dealing, and shall take all actions reasonably necessary to
perform this Agreement in an economical and timely manner, including consideration of design
modifications and alternative materials or equipment that will permit the Work to be constructed with
the Firm Fixed Price and by the Date of Substantial Completion, as established in Attachment A.
ARTICLE 2
ARCHITECT/ENGINEER'S RESPONSIBILITIES
2.1 ARCMTECT/ENGINEER SERVICES
2.1.1 ARCHITECT/ENGINEER The architectural and engineering services for the Project shall be
provided by the Architect/Engineer who will assign competent professionals to the Project who are licensed
to perform architectural or engineering services in the State of Texas.
2.1.2. TEAM/SUBCONTRACT AGREEMENT Owner has the right to review and approve the
terms and conditions of the Team/Subcontract Agreement between the members of the Design Build Team.
The Owner shall be a third party beneficiary to the Team/Subcontract Agreement. No terms and conditions
of the Team/Subcontract Agreement may be changed without the prior written consent of the Owner.
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ARTICLE 3
DEFINITIONS
3.1 The term "Contract Documents" shall mean and include:
a. Change Orders and written attachments to this Agreement signed by both the Owner and
Contractor;
b. this Agreement except for the existing Contract Documents set forth in item e. below;
c. the most current Documents approved by the Owner pursuant to Subparagraphs 4.1.4, 4.1.5 or
4.1.6,
d. the information provided by the Owner pursuant to Clause 5.1.2.1;
e. the Contract Documents in existence at the time of execution of this Agreement which are set
forth in Article 15.;
f. the Owner's Criteria provided pursuant to Subparagraph 5.1.1.
In case of any inconsistency, conflict or ambiguity among the Contract Documents, the Documents
shall govern in the order in which they are listed above.
3.2 The term "Work" shall mean and include the Design Phase Services procured in accordance with
Subsection 4.1.1, the Firm Fixed Price Proposal provided in accordance with Section 4.2, the Construction
Phase Services provided in accordance with Section 4.3, Additional Services that may be provided in
accordance with Section 4.8. and other services which are necessary to complete the Project in accordance
with and reasonably inferable from the Contract Documents
3.3 The term "Day" shall mean calendar day.
3.4 The term "Subcontractor" shall mean a person or entity who has an agreement with the Contractor or
a subcontractor of the Contractor to perform any portion of the Work. The term Subcontractor does not
include the Architect/Engineer or any separate contractor employed by the Owner or any separate
contractor's subcontractors.
3.5 The term "Substantial Completion of the Work", or of a designated portion, occurs on the date when
construction is sufficiently complete in accordance with the Contract Documents so that the Owner can
occupy.or utilize the Project, or a designated portion, for the use for which it is intended. This date shall be
confirmed by a certificate of Substantial Completion signed by the Owner and Contractor. The certificate
shall state the respective responsibilities of the Owner and Contractor for security, maintenance, heat,
utilities, damage to the Work, and insurance. The certificate shall also list the items to be completed or
corrected, and establish the time for their completion and correction.
3.6 The term "Owner's Criteria" shall mean the initial description of the Owner's objectives,
including budgetary and time criteria, space requirements and relationships, flexibility and expandability
requirements, special equipment and systems, and site requirements.
3.7 The term "Hazardous Material" shall mean any substance or material identified now or in the
future as hazardous under any federal, state or local law or regulation, or any other substance or material
which may be considered hazardous or otherwise subject to statutory or regulatory requirements
governing handling, disposal and/or clean-up.
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ARTICLE 4
CONTRACTOR'S RESPONSIBILITIES
4.1. CONTRACTOR'S RESPONSIBILITIES
The Contractor shall be responsible for the design and for the construction of the Work consistent
with the Owner's Program, as such Program may be modified by the Owner during the course of the Work.
The Contractor shall exercise reasonable skill and judgment in the performance of its services including
schedules and estimates that are a part of the Firm Fixed Price Proposal.
4.1.1. DESIGN PHASE SERVICES
4.1.1 PRELIMINARY EVALUATION The Contractor shall provide a preliminary
evaluation of the Project's feasibility based on the Owner's Criteria and other relevant information. This
will include a preliminary meeting held with the Contractor and the Architect/Engineer plus the Owner and
the Owner's Representatives.
4.1.2 PRELIMINARY SCHEDULE The Contractor shall prepare a preliminary schedule of
the Work for the Owner's written approval. The schedule shall show the activities of the Owner,
Architect/Engineer and Contractor necessary to meet the Owner's completion requirements. The schedule
shall be updated periodically with the level of detail for each schedule update reflecting the information
then available. If an update indicates that a previously approved schedule will not be met, the Contractor
shall recommend corrective action to the Owner in writing.
4.1.3 PRELIMINARY ESTIMATE When sufficient Project information has been
identified, the Contractor shall prepare for the Owner's written approval a preliminary estimate utilizing
area, volume or similar conceptual estimating techniques. The estimate shall be updated periodically with
the level of detail for each estimate update reflecting the information then available. If the preliminary
estimate or any update exceeds the Owner's budget, the Contractor shall make written recommendations to
the Owner.
4.1.4 CONCEPT DESIGN DOCUMENTS The Contractor shall submit for the Owner's
written approval Concept Design Documents, based on the Owner's Program and other relevant
information. Concept Documents shall include drawings, outline specifications and other conceptual
documents illustrating the Project's basic elements, scale, and their relationship to the site. One set of these
shall be furnished to the Owner. The Contractor shall update the preliminary schedule and estimate based
on the Concept Design Documents based upon discussions held at the preliminary meeting with the Owner.
4.1.5 DESIGN DEVELOPMENT DOCUMENTS The Contractor shall submit for the
Owner's written approval Design Development Documents based on the approved Schematic Design
Documents. The Design Development Documents shall further define the Project including drawings and
outline specifications fixing and describing the Project size and character, and other appropriate elements
incorporating the structural, architectural, mechanical and electrical systems. One set of these documents
shall be furnished to the Owner. The Contractor shall update the schedule and estimate based on the Design
Development Documents.
4.1.6 CONSTRUCTION DOCUMENTS The Contractor shall submit for the Owner's
written approval Construction Documents based on the approved Design Development Documents. The
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Construction Documents shall set forth in detail the requirements for construction of the Work, and shall
consist of drawings and specifications based upon codes, laws or regulations enacted at the time of their
preparation. Construction shall be in accordance with these approved Construction Documents. One set of
these documents shall be furnished to the Owner prior to commencement of construction. The Contractor
shall prepare a further update of the schedule and estimate.
4.1.6.1. The Drawings, Specifications and other documents prepared by the
Architect/Engineer for this Project are instruments of the Architect/Engineer's service , and shall
become the property of the Owner upon the completion or termination of this Agreement. The
Architect/Engineer is entitled to retain copies of all such documents. The documents prepared and
furnished by the Architect/Engineer are intended only to be applicable to this Project, and Owner's use
of these documents in other projects shall be at Owner's sole risk and expense. In the event the Owner
uses any of the information or materials developed pursuant to this Agreement in another project or for
other purposes than specified herein, Contractor and Architect/Engineer are released from any and all
liability relating to their use in that project.
4.2 FIRM FIXED PRICE PROPOSAL
4.2.1 When the negotiations are finalized a firm fixed price shall be established in the amount of not
to exceed $1,462,371 including a $75,000 betterment allowance which will be established based on
the Owner's Criteria, and specifications and drawings to sufficiently complete the Project (the "Fixed
Price"). Prior to the establishment of the Fixed Price the Contractor shall provide the Owner with the sum of
the estimated Cost of the Work as defined in Article 10 and the Architect/Engineer's Fee as defined in
Article 9. The Fixed Price may only be modified in accordance the provisions of Article 10.
4.2.2 Omitted
4.2.3 BASIS OF THE FIXED PRICE The Contractor shall include with the Fixed Price proposal
a written statement of its basis, which shall include:
A list of the drawings and specifications, including all addenda, which were used in
preparation of the Fixed Price proposal;
2. A list of allowances and a statement of their basis;
3. A list of the assumptions and clarifications made by the Contractor in the preparation of the
Fixed Price proposal to supplement the information contained in the drawings and specifications;
4. The date of Substantial Completion upon which the proposed Fixed Price is based, and the
Schedule of Work upon which the date of Substantial Completion is based;
5. Schedule of applicable alternate prices;
6. Schedule of applicable unit prices;
7. Statement of Additional Services included, if any; and
8. The time limit for acceptance of the Fixed Price proposal.
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4.2.4 The Contractor shall meet with Owner to review the Fixed Price proposal. In the event that the
Owner discovers any inconsistencies or inaccuracies in the information presented, the Owner shall promptly
give written notice to the Contractor, who shall make appropriate adjustments to the Fixed Price, or provide
its basis or both.
4.2.5 Prior to the Owner's acceptance of the Contractor's Fixed Price proposal, the Contractor shall
not incur any cost to be reimbursed as part of the Cost of the Work, except as provided in this Agreement or
as the Owner may specifically authorize in writing.
4.2.6 Upon acceptance by the Owner of the Fixed Price proposal, the Fixed Price and its basis shall
be set forth in Attachment A. The Fixed Price and the date of Substantial Completion shall be subject to
modification by changes in the Work as provided in Articles 7 and 10.
4.2.7 The Owner is a tax exempted municipal corporation. Therefore, the Fixed Price and Cost of
Work shall not include taxes. Upon request, the Owner shall provide to the Contractor any certificates or
other written documentation that may be required by any supplier or subcontractor to evidence the tax
exempt status of the Owner.
4.3 CONSTRUCTION PHASE SERVICES
4.3.1 The Construction Phase will commence upon the issuance by the Owner of a written notice to
proceed with construction. If construction commences prior to execution of Attachment A, the Owner's
written notice to proceed shall list the documents that are applicable to the part of the Work which the
Owner has authorized.
4.3.2 In order to complete the Work, the Contractor shall provide all necessary construction
supervision, inspection, construction equipment, labor, materials, tools, design services and
subcontracted items.
4.3.3 The Contractor shall give all notices and comply with all laws and ordinances legally
enacted at the date of execution of the Agreement which govern the proper performance of the Work.
4.3.4 The Contractor shall prepare and submit a Schedule of Work for the Owner's written
approval. The Schedule of Work shall indicate the dates for the start and completion of the various
stages of the construction including the dates when information and approvals are required from the
Owner. It shall be revised as required by the conditions of the Work.
4.3.5 The Contractor shall secure all building permits necessary for the construction of the
Project.
4.3.6 The Contractor shall take necessary precautions for the safety of its employees,
Subcontractors and their employees on the Project, and shall comply with all applicable provisions of
federal, state and municipal safety laws to prevent accidents or injury to persons on, about or adjacent
to the Project site. The Contractor, directly or through its Subcontractors, shall erect and properly
maintain at all times, as required by the conditions and progress of the Work, necessary safeguards for
the protection of workers and the public. The Owner agrees to cause its employees, agents, separate
contractors and tenants to abide by and fully adhere to all applicable provisions of federal, state and
municipal safety laws and regulations. The above provision shall not relieve Subcontractors of their
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responsibility for the safety of persons or property in the performance of their work, nor for
compliance with all applicable provisions of relevant laws.
4.3.7 The Contractor shall keep such full and detailed accounts as may be necessary for proper
financial management under this Agreement. The Owner shall be afforded access to all the Contractor's
and Architect/Engineer's records, books, correspondence, instructions, drawings, receipts, vouchers,
memoranda and similar data relating to this Agreement. The Contractor shall preserve or caused to be
preserved all such records for a period of three years after the final payment or longer where required
by law.
4.3.8 The Contractor shall provide periodic written reports to the Owner on the progress of the
Work as agreed to by the Owner and Contractor.
4.3.9 The Contractor shall develop a system of reporting completion of the Work, including
regular monitoring of all activities in progress and estimates for uncompleted tasks and proposed
changes in the Work. The reports shall be presented to the Owner at mutually agreeable intervals.
4.3.10 At all times the Contractor shall maintain the site of the Work free from debris and waste
materials resulting from the Work. At the completion of the Work, the Contractor shall remove from the
premises all construction equipment tools, surplus materials, waste materials and debris.
4.4 HAZARDOUS MATERIAL
4.4:1' The Contractor reserves the right not to commence or continue Work until any known or
suspected Hazardous Material discovered at the Project site has been removed, rendered or determined
to be harmless by the Owner as certified by an independent testing laboratory and approved by the
appropriate government agency.
4.4.2 If after the commencement of the Work, known or suspected Hazardous Material is
discovered at the Project site the Contractor shall be entitled to immediately stop Work in the affected
area, and the Contractor shall report the condition to the Owner and, if required, the government agency
with jurisdiction. The Contractor will not be entitled to additional compensation by reason of any delay
required to abate the Hazardous Material but instead will be granted a time extension for completion of
the Work, if affected, which time extension will constitute full adjustments due the Contractor.
4.4.3 The Contractor shall not be required to perform any Work relating to or in the area of
known or suspected Hazardous Material without written mutual agreement.
4.4.4 The Owner shall be responsible for retaining an independent testing laboratory to
determine the nature of the material encountered and whether it is a Hazardous Material requiring
corrective measures and/or remedial action. Such measures shall be the sole responsibility of the Owner,
and shall be performed in a manner minimizing any adverse effect upon the Work of the Contractor. The
Contractor shall resume Work in the area affected by any Hazardous Material only upon written notice
from the Owner after the Hazardous Material has been removed or rendered harmless.
4.5 ROYALTIES, PATENTS AND COPYRIGHTS The Contractor shall pay all royalties and
license fees which may be due on the inclusion of any patented or copyrighted materials, methods or
systems selected by Contractor and incorporated in the Work. The Contractor shall defend, indemnify
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and hold the Owner harmless from all suits or claims for infringement of any patent rights or copyrights
arising out of such selection. The Owner agrees to defend, indemnify and hold the Contractor harmless
from any suits or claims of infringement of any patent rights or copyrights arising out of any patented
or copyrighted materials, methods or systems specified by the Owner.
4.6 WARRANTIES AND COMPLETION
4.7.1 The Contractor warrants that all materials, supplies and equipment furnished under this
Agreement will be new unless otherwise specified, of good quality, in conformance with the Contract
Documents, and free from defective workmanship and materials. Warranties shall commence on the
date of Substantial Completion of the Work or of a designated portion. The Contractor agrees to correct
all construction performed under this Agreement which proves to be defective in workmanship and
materials within a period of one year from the date of final acceptance of the improvements or for such
longer periods of time as may be set forth with respect to specific warranties required by the Contract
Documents.
4.7.2 The Contractor shall secure required certificates of inspection, testing or approval and
deliver them to the Owner.
4.7.3 The Contractor shall collect all written warranties and equipment manuals and deliver them
to the Owner.
4.7.4 With the assistance of the Owner's maintenance personnel, the Contractor shall direct the
checkout of utilities and operations of systems and equipment for readiness, and assist in their initial
start-up and testing.
4.8 ADDITIONAL SERVICES The Contractor shall provide or procure the following Additional
Services upon the request of the Owner. A written agreement between the Owner and Contractor shall
define the extent of such Additional Services. Such Additional Services shall be considered a Change
in the Work, unless they are specifically included in the statement of the basis of the Fixed Price as set
forth in Attachment A.
4.8.1 Consultations, negotiations, and documentation supporting the procurement of Project
financing.
4.8.2 Surveys, site evaluations, legal descriptions and aerial photographs.
4.8.3 Appraisals of existing equipment, existing properties, new equipment and developed
properties.
4.8.4 Soils, subsurface and environmental studies, reports and investigations required for
submission to governmental authorities or others having jurisdiction over the Project, except for Geo-
Technical Services included in the Basic Services per Attachment A.
4.8.5 Consultations and representations other than normal assistance in securing building
permits, before governmental authorities or others having jurisdiction over the Project.
4.8.6 Investigation or making measured drawings of existing conditions or the verification of
drawings or other Owner-provided information. Except as provided as part of the proposal included in
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Attachment A.
4.8.7 Artistic renderings, models and mockups of the Project or any part of the Project or Work.
Except as provided in Attachment A.
4.8.8 Inventories of existing furniture, fixtures, furnishings and equipment which might be under
consideration for incorporation into the Work.
4.8.9 Interior design and related services including procurement and placement of furniture,
furnishings, art work and decorations.
4.8.10 Making revisions to the Schematic Design, Design Development, Construction
Documents or documents forming the basis of the Fixed Price after they have been approved by the
Owner and which are due to causes beyond the control of the Contractor.
4.8.11 Design, coordination, management, expediting and other services supporting the
procurement of materials to be obtained, or work to be performed, by the Owner, including but not
limited to telephone systems, computer wiring networks, sound systems, alarms, security systems and
other specialty systems which are not a part of this Agreement, except
for the items outlined in Attachment A.
4.8.12 Estimates, proposals, appraisals, consultations, negotiations and services in
connection with the repair or replacement of an insured loss.
4.8.13 The premium portion of overtime work ordered by the Owner including productivity
impact costs.
4.8.14 Document reproduction exceeding the limits provided for in this Agreement.
4.8.15 Out-of-town travel by the Architect/Engineer in connection with the Work, except
between the Architect/Engineer's office, Contractor's office, Owner's office and the Project site. If
outside the travel expenses addressed in Attachment A in the Fixed Price.
4.8.16 Obtaining service contractors and training maintenance personnel, assisting and
consulting in the use of systems and equipment after the initial start up, and adjusting and balancing of
systems and equipment.
4.8.17 Services for tenant or rental spaces not a part of this Agreement.
4.8.18 Services requested by the Owner or required by the Work which are not specified in the
Contract Documents and which are not normally part of generally accepted design and construction
practice.
4.8.19 Serving or preparing to serve as an expert witness in connection with any proceeding,
legal or otherwise, regarding the Project.
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4.9 SURETY BONDS
4.9.1 With the execution and delivery of the Agreement, the Contractor shall furnish and file
with the Owner in the full amount of that portion of the Fixed Price attributable to the Construction
Costs as set forth in the Schedule of Values (pages 1-3) of Attachment A, the surety bonds specified
hereunder. Without exception, the Owner's bond forms must be used, and exclusive venue for any
lawsuit in connection with such bonds shall be specified as Denton County, Texas. Such surety bonds
shall be in accordance with the provisions of Chapter 2253 of the Government Code, as amended, and
Article 7.19-1 of the Insurance Code, as amended. These bonds shall automatically be increased by the
amount of any change order or supplemental agreement which increases the Fixed Price with or without
notice to the surety, but in no event shall a change which reduces the Fixed Price reduce the penal
amount of such bonds. The Design Costs outlined in Attachment A shall be excluded from the
Performance and Payment Bonds.
4.9.2 Performance Bond. A good and sufficient bond in an amount not less than 100 percent of the
Fixed Price attributable to the Construction Costs as set forth in the Schedule of Values (pages 1-3) of
Attachment A, as evidenced by the proposal, or otherwise guaranteeing the full and faithful execution of
the Work and performance of the Agreement in accordance with the plans, specifications and Contract
Documents, including any extensions thereof, for the protection for the Owner. This bond shall provide
for the repair and/or replacement of all defects due to faulty materials and workmanship that will appear
within a period of one year from the date of completion and acceptance of the improvements by the
Owner.
(b) Payment Bond. A good and sufficient bond in an amount not less than 100 percent of the Fixed
Price attributable to the Construction Costs as set forth in the Schedule of Values (pages 1-3) of
Attachment A, as evidenced by the proposal, or otherwise guaranteeing the full and proper protection of
all claimants supplying labor and material in the prosecution of the Work provided for in said
Agreement and for the use of each claimant.
(c) Sureties. No sureties shall be accepted by the Owner who are now in default or delinquent on
any bonds or who are interested in any litigation against the Owner. All bonds shall be made on forms
furnished by the Owner and shall be executed by not less than one corporate surety authorized to do
business in the State of Texas and acceptable to the Owner. The sureties shall be listed in the most
current Federal Register Treasury List. Each bond shall be executed by the Contractor and surety. Each
surety shall designate an agent resident in the Owner's jurisdictional area acceptable to the Owner to
whom any requisite notices may be delivered and on whom service of process may be had in matters
arising out of such suretyship. The Owner reserves the right to reject any and all sureties.
(d) Additional or Substitute Bonds. If at any time the Owner is or becomes dissatisfied with any
surety, then upon the performance or payment bond, the Contractor shall, within five days after notice
from the Owner to do so, substitute an acceptable bond (or bonds), or provide an additional bond, in
such form and sum and signed by such other surety or sureties as may be satisfactory to Owner. No
further payments under the contract shall be deemed due or payable until the substitute or additional
bonds shall have been furnished and accepted by the Owner.
4.10 TRENCH SAFETY
4.10.1 The Contractor shall be responsible for complying with state laws and federal regulations
relating to trench safety, including those which may be enacted during the performance under this
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LABOR OCCUPATIONAL SAFETY AND HEALTH ORGANIZATION (OSHA) REGULATIONS
PERTAINING TO EXCAVATIONS, TRENCHING, AND SHORING AND SHALL PROVIDE AND
FAMILIARIZE THEIR EMPLOYEES INVOLVED IN EXCAVATION AND TRENCHING WITH
THE PROVISIONS IN OSHA PAMPHLET NUMBER 2226, EXCAVATING AND TRENCHING
OPERATIONS.
4.10.2 In addition to any other indemnification, CONTRACTOR AGREES TO DEFEND,
INDEMNIFY AND HOLD OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, COMPLETELY
HARMLESS FROM ANY CLAIMS, LAWSUITS, JUDGMENTS, COSTS AND EXPENSES
(INCLUDING ATTORNEY'S FEES, IF ANY) FOR ANY PERSONAL INJURY (INCLUDING
DEATH), PROPERTY DAMAGE OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS
SOUGHT (INCLUDING ANY INJURY, DEATH OR DAMAGE SUFFERED BY THE
CONTRACTOR'S OWN EMPLOYEES) ARISING OUT OF OR OCCASIONED BY THE USE OF
ANY TRENCH EXCAVATION PLANS, REGARDLESS OF THEIR ORIGIN, OR BY ANY
NEGLIGENT, GROSSLY NEGLIGENT, STRICTLY LIABLE OR INTENTIONAL ACT OF THE
CONTRACTOR, A SUBCONTRACTOR OR ANY INDIVIDUAL EMPLOYEE OR LABORER
(WHETHER OR NOT AN EMPLOYEE OF THE CONTRACTOR OR A SUBCONTRACTOR) IN
THE PERFORMANCE OR SUPERVISION OF ACTUAL TRENCH EXCAVATION UNDER THE
CONTRACT. THIS INDEMNITY APPLIES REGARDLESS OF WHETHER OWNER'S
NEGLIGENCE OR FAULT IN THE ADMINISTRATION OF THIS AGREEMENT OR IN THE
PREPARATION, REVIEW OR APPROVAL OF THE OWNER'S OR CONTRACTOR'S TRENCH
EXCAVATION PLAN CONTRIBUTED TO THE INJURY. DEATH OR DAMAGE. OWNER
ACCEPTS NO LIABILITY WHATSOEVER AS A RESULT OF ITS PREPARATION, REVIEW OR
APPROVAL OF ANY TRENCH EXCAVATION PLAN UNDER THIS CONTRACT, OWNER
MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE ADEQUACY OR
CORRECTNESS OF ANY TRENCH EXCAVATION PLAN. (THE PROVISIONS OF THIS
SUBSECTION ARE SOLELY FOR THE BENEFIT OF THE PARTIES TO THE AGREEMENT AND
ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR
OTHERWISE, TO ANY OTHER PERSON OR ENTITY. THIS SUBSECTION SHALL NOT BE
CONSTRUED TO WAIVE ANY GOVERNMENTAL IMMUNITY OF THE OWNER. THIS
SUBSECTION CONTROLS IN THE EVENT OF A CONFLICT WITH ANY OTHER INDEMNITY
OR OWNER-WARRANTY PROVISION IN THE SPECIFICATIONS).
4.10.3 The CONTRACTOR shall be responsible for selecting an appropriate method of providing
trench safety after due consideration of the job conditions, location of utilities, pavement conditions and
other relevant factors. Slope-back methods which may result in unnecessary displacement of utilities
and/or destruction of pavement shall not be used without permission from the Owner. The Contractor
shall be responsible for providing to the Owner an acceptable trench safety plan signed and sealed by a
professional engineer qualified to do such work and licensed/registered in the State of Texas. Plans for
devices used to provide trench safety such as trench shields and shoring systems will be likewise
certified by professional engineers licensed/registered in the State of Texas or by a professional engineer
licensed/registered in the state of manufacture of the shield or shoring system.
4.10.4 The sides of all excavation shall be supported in accordance with the trench safety plan.
Where bracing or sheeting and bracing are used, the trench width shall be increased accordingly, shall be
considered as incidental work, and shall not be paid for as a separate item. In wet, saturated or flowing
materials where it is necessary to install tight sheeting or cofferdams, wood or steel sheet piling of a
design and type approved by the Owner shall be used. All sheeting, shoring and bracing shall have
sufficient strength and rigidity to withstand the pressure exerted, to maintain the sides of the excavation
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properly in place, and to protect all persons or property from injury or damage. When excavations are
made adjacent to existing buildings or other structures or in paved streets, particular care shall be taken
to adequately sheet, shore and brace the sides of the excavation to prevent undermining of or settlement
beneath the structures or pavement. Underpinning of adjacent structures or pavement shall be done at
the Contractor's own cost and expense and in a manner satisfactory to the Owner, or, when required by
the Owner, the pavement shall be removed, the void satisfactorily filled, compacted and the pavement
replaced by the Contractor. The entire expense of such removal and subsequent replacement thereof
shall be borne by the Contractor. Wooden sheeting, shoring and bracing shall be left in place where it is
adjacent to the pipe embedment for the initial lift of backfill.
4.10.5 The removal of all sheeting, shoring and bracing shall be done in such manner as not to
endanger or damage either new or existing structures, or private or public properties; and so as to avoid
cave-ins or sliding of the banks. All holes or voids left by the removal of the sheeting, shoring or
bracing shall be immediately and completely filled and compacted with suitable materials. If, for any
reason, the Contractor, with the approval of the Owner, elects to leave in place the sheeting, shoring or
bracing, no payment shall be allowed for such material left in place unless ordered by the Owner to be
left in place.
4.10.6 All shoring or bracing will be inspected by an OSHA competent person. According to
OSHA regulations, a competent person is defined as one who is capable of identifying existing and
predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or
dangerous to employees, and who has authorization to take prompt corrective measures to eliminate
them.
4.10.7 Payment for trench safety shall be by the lineal feet of trench exceeding a depth of five
(5) ft. unless otherwise specified in the Agreement. Excavation for slope-back methods shall be
subsidiary to the trench safety pay item including replacement and recompaction. Excess excavation for
other trench safety methods is also subsidiary to the trench safety pay item. Costs relating to the
preparation of the trench safety plan including geotechnical investigation, testing and report preparation
fees are all subsidiary to the pay item for trench safety.
ARTICLE 5
OWNER'S RESPONSIBILITIES
5.1 INFORMATION AND SERVICES PROVIDED BY OWNER
5.1.1 The Owner shall provide full information in a timely manner regarding requirements for
the Project, including the Owner's Criteria and other relevant information.
5.1.2 The Owner shall provide:
1. All necessary information describing the physical characteristics of the site, including surveys,
site evaluations, legal descriptions, existing conditions, subsurface and environmental studies,
reports and investigations, if available; and
2. Inspection and testing services during construction as required by law or as mutually
agreed; per Attachment A.
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5.1.4 The Owner takes no responsibility of the Contractor's reliance on the information provided
or of the completeness and accuracy of the information and services required by this Section 5.1.
5.2 OWNER'S RESPONSIBILITIES DURING DESIGN PHASE
5.2.1 The Owner shall provide the Owner's Criteria at the inception of the Design Phase and
shall review and approve schedules as to time, estimates, Concept Design Documents, Design
Development Documents and Construction Documents furnished during the Design Phase as set forth
in Paragraph 4.1.1., and the Fixed Price proposal as set forth in Section 4.2.
5.3 OWNER'S RESPONSIBILITIES DURING CONSTRUCTION PHASE
5.3.1 The Owner shall review and timely approve the Schedule of the Work as set forth in
Subparagraph 4.1.2 and 4.3.4
5.3.2 If the Owner becomes aware of any error, omission or failure to meet the requirements of
the Contract Documents or any fault or defect in the Work, the Owner shall give prompt written notice
to the Contractor.
5.3.3 The Owner shall communicate with the Contractor's Subcontractors, suppliers and
Architect/Engineer only through the Contractor. The Owner shall have no contractual obligations to
Subcontractors, suppliers, or the Architect/Engineer.
5.4 OWNER'S REPRESENTATIVE The Owner shall designate an Owner's representative who will
act on Owner's behalf in the administration of this Agreement.
ARTICLE 6
SUBCONTRACTS
Work not performed by the Contractor with its own forces shall be performed by Subcontractors.
6.1 RETAINING SUBCONTRACTORS The Contractor shall not retain any Subcontractor to whom
the Owner has a reasonable and timely objection. The Contractor shall not be required to retain any
Subcontractor to whom the Contractor has a reasonable objection.
6.2 MANAGEMENT OF SUBCONTRACTORS The Contractor shall be responsible for the
management of the Subcontractors in the performance of their work.
6.3 ASSIGNMENT OF SUBCONTRACT AGREEMENTS The Contractor shall provide for
assignment of subcontract agreements in the event that the Owner terminates this Agreement for cause
as provided in Section 13.3. Following such termination, the Owner shall notify in writing those
subcontractors whose assignments will be accepted, subject to the rights of sureties.
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ARTICLE 7
CONTRACT TIME
7.1 COMA ENCEMENT OF THE WORK The Work shall commence on or about ,
and shall proceed in general accordance with the approved Schedule of Work as such schedule may be
amended from time to time, subject, however, to the provisions of Section 3.5, 4.3.4 and Attachment A.
7.2 SUBSTANTIAL COMPLETION At such time as a Fixed Price is accepted, a date of Substantial
Completion of the Work shall be established as set forth in Attachment A. Time shall be of the
essence of this Agreement. The Final Completion date shall be the date the Owner issues its certificate
of final acceptance.
7.3 DELAYS AND EXTENSION OF TIME
7.3.1 The Contractor shall be entitled to an extension of working time under this Agreement
only when claim for such extension is submitted to the Owner in writing by the Contractor within seven
days from and after the time when the alleged cause of delay occurs, and then only when such time is
approved by Owner. In adjusting the Agreement working time for the completion of the Project,
unforeseeable causes beyond the control and without the fault or negligence of the Contractor, its
agents, employees, subcontractors, or members of the Design-Build Team shall be taken into
consideration, including but not restricted to unforeseen inability to obtain supplies and materials, acts
of God or the public enemy, acts of the Owner, fires, floods, epidemics, quarantine restrictions, strikes,
freight embargoes, unusually severe weather conditions, or delay of subcontractors due to such causes
beyond their control.
7.3.2 If as a result of such unforeseen conditions beyond the control of the Contractor, its
agents, employees, subcontractors, or members of the Design-Build Team, the satisfactory completion
of this Agreement should require work and materials in greater amounts or quantities than those set
forth in this Agreement, requiring more time for completion than the anticipated time, then the
Agreement working time shall be equitably increased, but not more than in the same proportion as the
cost of the additional work bears to the cost of the original work contracted for. No allowances shall be
made for delays or suspension of performance of the work due to the fault of the Contractor, its agents,
employees, subcontractors, or members of the Design-Build Team.
7.3.3 No adjustment to working time shall be made if, concurrently with the equitable cause for
delay, there existed a cause for delay due to the fault or negligence of the Contractor, its agents,
employees, subcontractors, or members of the Design-Build Team. No adjustment shall be made to the
Agreement price or the Fixed Price and the Contractor shall not be entitled to claim or receive any
additional compensation as a result of or arising out of any delay resulting in adjustment to the working
time hereunder. All claims for extension of working time must be submitted in accordance with this
Section 7.3, and no act of the Owner shall be deemed a waiver or entitlement of such extension.
7.3.4 In the event delays to the Project are encountered for any reason, the parties agree to
undertake reasonable steps to mitigate the effect of such delays.
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ARTICLE 8
COMPENSATION
8.1 PAYMENT SCHEDULE Upon execution of this Agreement a payment schedule will be
established based upon the completion of work and as approved by the Owner.
8.2 Design Phase Compensation
8.2.1 The cost of services performed directly by the Architect/Engineer is computed separately
and is independent from the Contractor's compensation for work or services directly performed by the
Contractor; these costs shall be shown as separate items on applications for payment.
8.2.2 The Owner shall compensate the Contractor for services performed during the Design
Phase as described in Section 4.1, and as described in Section 4.2, by lump sum based upon the
percentage of completion of work for each of the following phases and percentages as outlined in
Attachment A.
8.2.3 Compensation for Design Phase Services shall be equitably adjusted if such services extend
beyond N/A , from the date of this Agreement for reasons beyond the reasonable
control of the Contractor or as provided in Section 10.1. For changes in Design Phase Services,
compensation shall be adjusted per Attachment A.
8.2.4 Payments for Design Phase Services shall be due and payable for Work satisfactorily
completed, within thirty (30) days following presentation of the Contractor's monthly invoice to the
Owner as set forth herein. Subject to the terms and conditions set forth, every attempt will be made for
payment by the I O'h of the month. The City will not be subject to any claims, penalties or interest due to
the Contractor if payment is not received by the I Oth of the month.
8.3 CONSTRUCTION PHASE COMPENSATION
8.3.1 The Owner shall compensate the Contractor for Work performed following the
commencement of the Construction Phase based upon percentage of work satisfactorily as provided in
Article 11.
8.3.2 The compensation to be paid under this Section 8.3 shall not exceed the Fixed Price
established in Attachment A, or as the Fixed Price may be adjusted under Article 10.
8.3.3 Payment for Construction Phase Services shall be as set forth in Article 11. If Design
Phase Services continue to be provided after construction has commenced, the Contractor shall also
continue to be compensated as provided in Section 8.2, or as mutually agreed.
ARTICLE 9
COST OF THE WORK
The Owner agrees to pay the Contractor for the Cost of the Work as defined in this Article.
9.1 COST ITEMS FOR DESIGN PHASE SERVICES Compensation for Design Phase Services
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9.2 COST ITEMS FOR CONSTRUCTION PHASE SERVICES This Section sets forth the cost
items for Construction Phase Services which are:
9.2.1 Wages paid for labor in the direct employ of the Contractor in the performance of the
Work.
9.2.2 Salaries of Contractor's employees in whatever capacity employed at the jobsite and
employees engaged on the road expediting the production or transportation of material.
9.2.3 Cost of all employee benefits and taxes including but not limited to workers'
compensation, unemployment compensation, Social Security, health, welfare, retirement and other
fringe benefits as required by law, labor agreements or paid under the Contractor's standard personnel
policy, insofar as such costs are paid to employees of the Contractor who are included in the Cost of the
Work under Subsections 9.2.1 and 9.2.2.
9.2.4 Cost of all materials, supplies and equipment incorporated in the Work, including costs of
inspection, testing, transportation, storage and handling.
9.2.5 Payments made by the Contractor to Subcontractors for work performed under this
Agreement.
9.2.6 Rental charges of all necessary machinery and equipment, exclusive of tool, machinery
and equipment owned by workers, used at the site of the Work, including installation, repair and
replacement, dismantling, removal, maintenance, transportation and delivery costs at rental charges
consistent with those prevailing in the area.
9.2.7 Cost of the premiums for all insurance and surety bonds which the Contractor is required to
procure or deems necessary.
9.2.8 Cost of the premiums for all insurance and surety bonds which the Conractor is required to
procure and are direct costs to the Project.
9.2.9 Sales, use, gross receipts or other taxes, tariffs or duties related to the Work for which the
Contractor is liable. This does not include taxes on materials, equipment or supplies that used for or
incorporated into the Project for which the Owner is exempt by virtue of its tax exempt status as a
municipality.
9.2.10 Permits, fees, licenses, and tests required by the Work per Attachment A.
9.2.11 All water, power and fuel costs necessary for the Work per Attachment A.
9.2.12 Cost of removal of all non-hazardous substances, debris and waste materials.
9.2.13 All costs directly incurred in the performance of the Work or in connection with the
Project, as set forth in Article 7 and Attachment A, which are reasonably inferable from the Contract
Documents as necessary to produce the intended results.
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ARTICLE 10
CHANGES IN THE WORK
Changes in the Work which are within the general scope of this Agreement may be accomplished by
Change Order without invalidating this Agreement.
10.1 CHANGE ORDERS A Change Order is a written instrument, issued after execution of this
Agreement, signed by the Owner or Owner's Representative and Contractor stating their agreement
upon a change and the adjustment in the Fixed Price per Attachment A and/or the date of Substantial
Completion. Each adjustment in the Fixed Price resulting from a Change Order shall clearly separate the
amount attributable to compensation for Design Phase Services, Construction Phase Services and other
Cost of the Work.
10.2 DETERMINATION OF COST An increase or decrease in the FFP resulting from a change in
the Work shall be determined by one or more of the following methods:
10.2.1 unit prices set forth in this Agreement or as subsequently agreed;
10.2.2 a mutually accepted, itemized lump sum; or
10.2.3 costs determined as defined in Section 8.2 and Article 9 and per Attachment A.
10.3 NO OBLIGATION TO PERFORM The Contractor shall not be obligated to perform changed
Work until a Change Order has been executed by the Owner.
10.4 ADJUSTMENT OF UNIT PRICES If a proposed Change Order alters original quantities to a
degree that application of previously agreed to unit prices would be inequitable to either the Owner or
the Contractor, the unit prices and the Fixed Price shall be equitably adjusted.
10.5 SITE CONDITIONS Contractor represents that it has visited the site of the Work, has fully
familiarized itself with the location and on-site conditions under which the Work is to be performed and
has correlated its observations with the requirements of the Project and the Owner's Criteria. The
Contractor has satisfied itself as to the subsurface conditions at the site of the Work. The Contractor
shall make no claim for damages, additional compensation or extension of time against the Owner
because of encountering actual conditions in the course of the Work that were not discovered by
Contractor prior to commencing the Work. Since sub-surface conditions are not known, this proposal is
subject to additional charges of cost plus 10% that may result from encountering sub-surface water,
rock, underground utilities, etc., that are not now visible.
10.6 CLAIMS FOR ADDITIONAL COST OR TIME For any claim for an increase in the Fixed
Price, compensation for Design Phase Services, the Construction Costs and/or an extension in the date
of Substantial Completion, the Contractor shall give the Owner written notice of the claim within seven
days after the occurrence giving rise to the claim. Except in an emergency, notice shall be given before
proceeding with the Work. Any change in the Fixed Price, compensation for Design Phase Services,
the Construction Costs, and/or date of Substantial Completion resulting from such claim must be
authorized by Change Order.
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10.7 EMERGENCIES In any emergency affecting the safety of persons and/or property, the
Contractor shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the
Fixed Price, compensation for Design Phase Services, the Contractor's Fee and/or extension of the date
of Substantial Completion on account of emergency work shall be determined as provided in this
Article.
ARTICLE 11
PAYMENT FOR CONSTRUCTION PHASE SERVICES
11.1 PROGRESS PAYMENTS
11.1.1 A monthly estimate of progress based upon completion of Work will be mutually
agreed upon between the Owner and the Contractor. The monthly estimate may include acceptable
nonperishable materials delivered to the Work; such payment shall be allowed on the same percentage
basis as the net invoice value as provided hereunder. The percent retained by the Owner shall normally
be up to S% percent at completion, unless otherwise stated. At midpoint, or at any subsequent time, if
the Owner determines that the progress on the Agreement is satisfactory in all respects, it may at its
discretion cease to retain additional funds until the completion of the Project, or until progress ceases to
be satisfactory. The Owner shall make the sole determination in this matter.
11.1.2 The Contractor shall furnish to the Owner such detailed information as the Owner may
request to assist it in the preparation of the monthly estimates. It is understood that the monthly
estimates shall be approximate only, and all monthly estimates and partial payments shall be subject to
correction in the estimate rendered following the discovery of an error in any previous estimate, and
such estimate shall not in any respect be taken as an admission of the Owner of the amount of Work
done or of its quality or sufficiency nor as an acceptance of the Work or the release of the Contractor of
any responsibility under the Agreement.
11.2 RETAINAGE As security for faithful completion of the Work by the Contractor, the Owner
shall retain S percent of the total dollar amount of the Work. When work is 80 percent complete,
retainage may, at the Owner's option, be reduced to two percent of the dollar value of the Work
satisfactorily completed to date (not to include material on hand), provided that the Contractor is making
satisfactory progress and there is no cause of greater retainage as determined by the Owner.
11.3 FINAL PAYMENT
11.3.1 Whenever the improvements provided for by the Agreement are completely performed,
the Contractor shall notify the Owner that the improvements are ready for final inspection. The Owner
shall then cause the final inspection to be made. If the Work is satisfactory and in accordance with the
specifications and Contract Documents, the Contractor shall be issued a certificate of acceptance.
11.3.2 Whenever the improvements provided for by the Agreement are completely performed
on the part of the Contractor, as evidenced in the certificate of acceptance from Owner, and all required
submissions are provided to the Owner, a final estimate showing the value of the Work, including the
work performed by Architect/Engineer, shall be prepared by the Owner as soon as the necessary
measurements and computations can be made. All prior estimates upon which payments have been
made are subject to necessary corrections or revisions in the final payment. The amount of the final
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estimate, less any sums that have been previously paid, deducted or retained under the provisions of this
Agreement, shall be paid to the Contractor within 30 days after final acceptance, provided that the
Contractor has first furnished the Owner: (a) a consent of surety to final payment; (b) the final
Contractor's Report of Subcontractor/Supplier Payment evidencing that all indebtedness connected with
the Work and all sums of money due for any labor, materials, apparatus, fixtures or machinery furnished
for or used in the performance of the Work have been paid or otherwise satisfied, or that the person or
persons to whom the same may be respectively due have consented to final payment; and (c) such other
affidavits, lien waivers and other documentation as the Owner may reasonably require to protect its
interests. In addition, the Contractor shall be required to execute the Owner's standard Affidavit of
Final Payment and Release as a precondition to receipt of final payment.
11.3.3 The acceptance by the Contractor of the final payment shall operate as and shall be a
release and indemnification by Contractor to Owner from all claims or liabilities under the Agreement,
including subcontractor and supplier claims, or claims from the Architect/Engineer for anything done or
furnished or relating to the Work under the Agreement or for any act or neglect of the Owner relating to
or connected with the Agreement.
11.3.4 All warranties and guarantees shall commence from the date of the certificate of
acceptance. No interest shall be due the Contractor on any partial or final payment or on the retainage.
11.4 PAYMENT WITHHELD In addition to express provisions elsewhere contained in this
Agreement, the Owner may withhold from any payment due the Contractor such amount as determined
necessary to protect the Owner's interest, or , if it so elects, may withhold or retain all or a portion of
any progress payment or refund on account of:
(a) unsatisfactory progress of the Work not caused by conditions beyond the Contractor's
control,
(b) defective work not corrected,
(c) Contractor's failure to carry out instructions or orders of the Owner or his representative,
(d) a reasonable doubt that the Agreement can be completed for the balance then upaid,
(e) work or execution thereof not in accordance with the Contract Documents,
(f) claim filed by or against the Contractor or reasonable evidence indicating probable filing
of claims,
(g) failure of the Contractor to make payments to subcontractor or for material or labor or to
the Architect/Engineer,
(h) damage to another contractor,
(i) unsafe working conditions allowed to persist by the Contractor,
0) failure of the Contractor to provide work schedules as required by the Owner,
(k) use of subcontractors without the Owner's approval, or
(1) failure of the Contractor to keep current as-built record drawings at the job site or to turn
same over in completed form to the Owner.
When the above grounds are removed, payment shall be made for amounts withheld because of them,
and Owner shall never be liable for interest on any delayed or late payment.
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ARTICLE 12
INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION
12.1 INDEMNITY
CONTRACTOR COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD
HARMLESS AND DEFEND, AT ITS OWN EXPENSE, OWNER, ITS OFFICERS, SERVANTS
AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR
PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO
ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL
OR ASSERTED, ARISING OUT OF THE WORK AND SERVICES TO BE PERFORMED
HEREUNDER BY CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, LICENSEES OR INVITEES, THE ARCHITECT/ENGINEER,
WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED
NEGLIGENCE OF THE OFFICERS, SERVANTS, EMPLOYEES, OF THE OWNER.
CONTRACTOR LIKEWISE COVENANTS AND AGREES TO, AND DOES HEREBY,
INDEMNIFY AND HOLD HARMLESS OWNER FROM AND AGAINST ANY AND ALL
INJURIES, DAMAGE, LOSS OR DESTRUCTION TO PROPERTY OF OWNER DURING
THE PERFORMANCE OF ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, WHETHER ARISING OUT OF IN WHOLE OR IN PART, ANY AND ALL
ALLEGED NEGLIGENT ACTS OR OMISSIONS OF OFFICERS, OR EMPLOYEES OF
OWNER. THE PROVISIONS OF THIS SECTION ARE SOLELY FOR THE BENEFIT OF
THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
12.2 INSURANCE REQUIRMENTS The Contractor and Architect/Engineer shall obtain and
keep in full force and effect during this Agreement liability and professional liability insurance in the
form and substance provided in Owner's Insurance Requirements set forth in Attachment B attached
hereto and made a part hereof by reference.
ARTICLE 13
SUSPENSION OR TERMINATION OF THE AGREEMENT
13.1 TEMPORARY SUSPENSION BY OWNER
13.1.1 The Owner shall have the right by written order to temporarily suspend the Work, in
whole or in part, whenever, in the judgment of the Owner, such temporary suspension is required:
(a) in the interest of the Owner generally,
(b) due to government or judicial controls or orders which make performance of this contract
temporarily impossible or illegal,
(c) to coordinate the work of separate Contractors at the job site,
(d) to expedite the completion of a separate contract even though the completion of this
particular contract may be thereby delayed,
(e) because of weather conditions unsuitable for performance of the work, or
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(f) because the Contractor is proceeding contrary to contract provisions or has failed to
correct conditions considered unsafe for workmen.
13.1.2 The written order of the Owner to the Contractor shall state the reasons for suspending
the Work and the anticipated periods for such suspension. Upon receipt of the Owner's written order,
the Contractor shall suspend the Work covered by the order and shall take such means and precautions
as may be necessary to properly protect the finished and partially finished Work, the unused materials
and uninstalled equipment, including the providing of suitable drainage about the Work and erection of
temporary structures where necessary. The Contractor shall not suspend the Work without written order
from the Owner and shall proceed with the Work promptly when notified by the Owner to resume
operations.
13.1.3 No additional compensation shall be paid to the Contractor for such suspension under
this Section or otherwise where same is caused by the fault of the Contractor. Where such temporary
suspension is not due to the fault of the Contractor, they shall be entitled to:
a) an equitable extension of working time for the completion of the Work, not to exceed the
delay caused by such temporary suspension, as determined by the Owner; and
(b) the actual and necessary costs of properly protecting the finished and partially finished
Work, unused materials and uninstalled equipment during the period of the ordered suspension
as determined by the owner as being beyond the contract requirements; and
(c) where the Contractor elects to move equipment from the job site and then return it to the
site when the work is ordered resumed, the actual and necessary costs of these moves, in an
amount determined by the Owner.
13.2 TERMINATION FOR CONVENIENCE OF THE OWNER
13.2.1 The performance of the Work under this Agreement may be terminated by the Owner in
whole or in part, in accordance with this Section, whenever the Owner shall determine that such
termination is in the best interest of the Owner. Any such termination shall be effected by serving
written notice upon the Contractor. The notice of termination to the Contractor shall specify the extent to
which performance of Work under the Agreement is terminated, and the date upon which such
termination becomes effective. It shall be deemed conclusively presumed and established that such
termination is made with just cause as therein stated; and no proof in any claim, demand or suit shall be
required of the Owner regarding such discretionary action.
13.2.2 After receipt of a notice of termination, and except as otherwise directed by the Owner,
the Contractor shall:
(a) stop work under the Agreement on the date and to the extent specified in the notice of
termination;
(b) place no further orders or subcontracts for materials, services or facilities except as may
be necessary for completion of such portion the work under the contract as is not
terminated;
(c) terminate all subcontracts, purchase orders or options to the extent that they relate to the
performance of work terminated by the notice of termination or at the Owner's written
request, deliver and assign to the Owner, or any person or entity acting on the Owner's
behalf, any or all subcontracts, purchase orders and options made by Contractor in the
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performance of the Work, and deliver to the Owner true and correct originals and copies
of such Contract Documents;
(d) transfer title to the Owner and deliver in the manner, at the times, and to the extent, if
any, directed by the Owner:
(1) the fabricated or unfabricated parts, work in process, completed work, supplies
and other material produced as a part of, or acquired in connection with the
performance of, the work terminated by the notice of termination; and
(2) the completed or partially completed plans, drawings, information and other
property which, if the contract had been completed, would have been required to
be furnished to the Owner.
(e) complete performance of such part of the Work as shall not have been terminated by the
notice of termination; and
(f) take such action as may be necessary, or as the Engineer may direct, for the protection
and preservation of the property related to its contract which is in the possession of the
CONTRACTOR and in which the OWNER has or may acquire an interest.
13.2.3 At a time not later than 30 days after the termination date specified in the notice of
termination, the Contractor may submit to the Owner a list, certified as to the quantity and quality, of
any or all items of termination inventory not previously disposed of, exclusive of items the disposition
of which has been directed or authorized by the Owner. Not later than 15 days thereafter, the Owner
shall accept title to such items and remove them or enter into a storage agreement covering the same,
provided that the list submitted shall be subject to verification by the Owner upon removal of the items,
or, if the items are stored, within 45 days from the date of submission of the list, and provided that any
necessary adjustments to correct the list as submitted shall be made prior to final settlement.
13.2.4 Within 60 days after notice of termination, the Contractor shall submit its termination
claim to the Owner in the form and with the certification prescribed by the Owner. Unless one or more
extensions in writing are granted by the Owner upon request of the Contractor, made in writing within
such 60-day period or authorized extension thereof, any and all such claims shall be conclusively
deemed waived.
13.2.5 Subject to the provisions of this Section 3.2, the Contractor and Owner may agree upon
the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or
partial termination of Work pursuant hereto, provided that such agreed amount or amounts shall never
exceed the total Fixed Price as reduced by the amount of payments otherwise made and as further
reduced by the Fixed Price of Work not terminated. The Agreement shall be amended accordingly, and
the Contractor shall be paid the agreed amount. No amount shall be due for lost or anticipated profits.
Nothing in this Section 3.2 prescribing the amount to be paid to the Contractor in the event of failure of
the Contractor and the Owner to agree upon the whole amount to be paid to the Contractor by reason of
the termination of Work pursuant to this Ssection 3.2, shall be deemed to limit, restrict or otherwise
determine or affect the amount or amounts which may be agreed upon to be paid to the Contractor
pursuant to this Section 3.2.
13.2.6 In the event of the failure of the Contractor and the Owner to agree, as provided in
Subsection 13.2.5, upon the whole amount to be paid to the Contractor by reason of the termination of
Work pursuant to this Section, the Owner shall determine, on the basis of information available to it, the
amount, if any, due to the Contractor by reason of the termination and shall pay to the Contractor the
amounts determined. No amount shall be due for lost or anticipated profits.
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13.2.7 In arriving at the amount due the Contractor under this Section, there shall be deducted
(a) all unliquidated advance or other payments on account theretofore made to the Contractor, applicable
to the terminated portion of this Agreement; (b) any claim which the Owner may have against the
Contractor in connection with this Agreement; and (c) the agreed price for or the proceeds of sale of any
materials, supplies or other things kept by the Contractor or sold, pursuant to the provisions of this
clause, and not otherwise recovered by or credited to the Owner.
13.2.8 If the termination hereunder be partial, prior to the settlement of the terminated portion of
this Agreement, the Contractor may file with the Owner a request in writing for an equitable adjustment
of the price or prices specified in the Agreement relating to the continued portion of the Agreement (the
portion not terminated by the notice of termination), and such equitable adjustment as may be agreed
upon shall be made in such price or prices. Nothing contained herein, however, shall limit the right of
the Owner and the Contractor to agree upon the amount or amounts to be paid to the Contractor for the
completion of the continued portion of the Agreement when said Agreement does not contain an
established fixed price for such continued portion.
13.2.9 Nothing contained in this Section 13.2 shall limit or alter the rights, which the Owner
may have for termination of this Agreement under Section 13.3 for Contractor's default or any other
right which Owner may have for default or breach of Agreement by Contractor.
13.3 CONTRACTOR DEFAULT: OWNER'S RIGHT TO SUSPEND WORK AND TERMINATE
AGREEMENT
13.3.1 The Work or any portion of the Work under this Agreement shall be suspended
immediately on written order of the Owner declaring the Contractor to be in default. A copy of such
notice shall be served on the Contractor's surety. The Agreement may be terminated by the Owner for
any good cause or causes, among others of which special reference is made to the following:
(a) failure of the Contractor to start the Work within 10 days from date specified in the
written work order issued by the Owner to begin the Work;
(b) substantial evidence that the progress of the Work being made by the Contractor is
insufficient to complete the Work within the specified working time;
(c) failure of the Contractor to provide sufficient and proper equipment, materials or
construction forces for properly executing the Work;
(d) substantial evidence that the Contractor has abandoned the Work or discontinuance of the
performance of the Work or any part thereof and failure to resume performance within a
reasonable time after notice to do so;
(e) substantial evidence that the Contractor has become insolvent or bankrupt, or otherwise
financially unable to carry on the Work;
(f) deliberate failure on the part of the Contractor to observe any requirements of these
specifications or to comply with any orders given by the Owner as provided for in these
specifications;
(g) failure of the Contractor to promptly make good any defects in materials or
workmanship, or any defects of any nature, the correction of which has been directed in writing
by the Owner;
(h) substantial evidence of collusion for the purpose of illegally procuring a contract or
perpetrating fraud on the Owner in the construction of Work under contract;
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(i) repeated and flagrant violations of safe working procedures; or
0) the filing by the Contractor of litigation against the Owner prior to final completion of the
Work..
13.3.2 When the Work is suspended for any of the causes set forth in Subsection 13.2.1, or for
any other cause or causes, the Contractor shall discontinue the Work or such part thereof as the Owner
shall designate, whereupon the surety may either at its option assume the Agreement or that portion
thereof which the Owner has ordered the Contractor to discontinue and perform the same or, with the
written consent of the Owner, sublet the same, provided, however, that the surety shall exercise its
option within two weeks after the written notice to discontinue the Work has been served upon the
Contractor and upon the surety or its authorized agents. The surety in such event shall assume the
Contractor's place in all respects and shall be paid by the Owner for all Work performed by it in
accordance with the terms of the Agreement, but in no event shall such payments exceed the Fixed
Price, regardless of the cost to the surety to complete the Work. When performing the Work or
subletting same, the Surety shall not use the services of the Contractor or any entity or person affiliated
with the Contractor unless the Owner approves such use in advance in writing.
13.3.3 All monies remaining due the Contractor at the time of its default shall thereupon become
due and payable to the surety as the work progresses, subject to all terms of the Agreement. In case the
surety does not, within the hereinabove specified time, exercise its obligation to assume the Agreement
or that portion thereof which the Owner has ordered the Contractor to discontinue, then the Owner shall
have the power to complete by contract or otherwise, as it may determine, the work herein described or
such part thereof as it may deem necessary. The Contractor agrees that the Owner shall have the right to
take possession of or use any or all of the materials, plant, tools, equipment, supplies and property of
every kind provided by the Contractor for the purpose of their work and to procure other tools,
equipment and materials for the completion of the same and to charge to the account of the Contractor
the expense of said contract for labor, materials, tools, equipment and expenses incident thereto. The
expense so charged shall be deducted by the Owner out of such monies as may be due or may at any
time thereafter become due the Contractor and by virtue of the Agreement or any part thereof.
13.3.4 The Owner shall not be required to obtain the lowest bid for the work of completing the
Agreement, but the expenses to be deducted shall be the actual cost of such work. In case such expense
is less than the sum which would have been payable under the Agreement if the same had been
completed by the Contractor, then in such case the Owner may pay the Contractor the difference in the
cost, provided that the Contractor shall not be entitled to any claim for damages or for loss of anticipated
profits.
13.3.5 In case such expense to complete exceeds the amount which would have been payable
under the Agreement if the same had been completed by the Contractor, the Contractor and its surety
shall pay the amount of the excess to the Owner on notice from the Owner for excess due including any
costs incurred by the Owner, such as inspection, legal fees and liquidated damages. When any particular
part of the Work is being carried-on by the Owner by contract or otherwise under the provisions of this
Section, the Contractor shall continue the remainder of the Work in conformity with the terms of the
Agreement and in such manner as not to hinder or interfere with the performance of workmen employed
as above provided by the Owner or surety.
13.4 SUSPENSION BY COURT ORDER AGAINST THE OWNER The Contractor shall
suspend such part or parts of the Work pursuant to a court order issued against the Owner and shall not
be entitled to additional compensation by virtue of such court order; neither shall the Contractor be
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liable to the Owner in the event the Work is suspended by such court order, unless such suspension is
due to the fault or negligence of the Contractor.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 ASSIGNMENTS The Contractor shall not assign, transfer, convey or otherwise dispose
of this Agreement, or their right to execute it, or their right, title or interest in it or any part thereof
without the previous written consent of the surety company and the written approval of the Owner. The
Contractor shall not assign, either legally or equitably, by power of attorney or otherwise, any of the
monies due or to become due under this Agreement, except for the monies due the Architect/Engineer
for design services, or their claim thereto without the prior written consent of the surety company and
the written approval of the Owner. Nothing in this Section is intended to conflict with Texas Business
and Commerce Code. The approval of the Owner of a particular assignment, transfer or conveyance
shall not dispense with such approval to any further or other assignments. The approval by the Owner
of any assignment, transfer or conveyance shall not operate to release the Contractor or surety hereunder
from any of the Agreement and bond obligations, and the Contractor shall be and remain fully
responsible and liable for the defaults, negligent acts and omissions of their assignees, their agents and
employees, as if they were their own.
14.2 VENUE AND GOVERNING LAW The parties herein agree that this Agreement shall be
performed in Denton County, and if legal action is necessary in connection therewith, exclusive venue
shall lie in Denton County. The terms and provisions of the Agreement and the Contract Documents
shall be construed in accordance with the laws and court decisions of the State of Texas.
14.3 SEVERABILITY The partial or complete invalidity of any one or more provisions of this
Agreement shall not affect the validity or continuing force and effect of any other provision.
14.4 NO WAIVER OF LEGAL RIGHTS Inspection by the Owner; any order, measurement,
quantity or certificate by the Owner; any order by the Owner for payment of money; any payment for or
acceptance of any work; or any extension of time or any possession taken by the Owner shall not operate
as a waiver of any provisions of the Agreement or any power therein reserved to the Owner of any rights
or damages therein provided. Any waiver of any breach of contract shall not be held to be a waiver of
any other or subsequent breach. The Owner reserves the right to correct any error that may be
discovered in any estimate that may have been paid and to adjust the same to meet the requirements of
the Contract Documents. The Owner reserves the right to recover by process of law sums as may be
sufficient to correct any error or make good any deficiency in the Work resulting from such error,
dishonesty or collusion by the Contractor or their agents and the Architect/Engineer or their assistants,
discovered in the Work after the final payment has been made. Neither final acceptance of the Work nor
final payment shall relieve the Contractor of responsibility for faulty materials or workmanship, and the
Contractor shall promptly remedy any defects due thereto and pay for any damage to other work
resulting therefrom. Likewise, neither final acceptance nor final payment, nor partial or entire use or
occupancy of the Work by the Owner shall constitute acceptance of Work not done in accordance with
the Contract Documents or relieve Contractor of liability with respect to any expressed or implied
warranties or responsibility for faulty materials or workmanship, whether same be patently or latently
defective.
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14.5 OBLIGATION TO PERFORM FUNCTIONS Any failure or neglect on the part of Owner or
inspectors to enforce provisions herein dealing with supervision, control, inspection, testing or
acceptance and approval of the Work shall never operate to relieve Contractor from full compliance with
the Contract Documents nor render Owner liable to Contractor for money damages, extensions of time
or increased compensation of any kind.
14.6 SUCCESSORS AND ASSIGNS Subject to the limitations upon assignment and transfer herein
contained, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their
respective successors and assigns.
14.7 HEADINGS The title and headings contained in the contract documents and the subject
organization are used only to facilitate reference, and in no way define or limit the scope of intent of any
of the provisions of this contract.
ARTICLE 15
RIGHT TO AUDIT
The OWNER shall have the right to audit and make copies of the books, records and computations
pertaining to this agreement. The CONTRACTOR shall retain such books, records, documents and
other evidence pertaining to this agreement during the contract period and five years thereafter, except if
an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all
audit tasks are completed and resolved. These books, records, documents and other evidence shall be
available, within 10 business days of written request. Further, the CONTRACTOR shall also require all
Subcontractors, material suppliers, and other payees to retain all books, records, documents and other
evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All
books and records will be made available within a 50 mile radius of the City of Denton. The cost of the
audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an
overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must
be borne by the CONTRACTOR which must be payable within five business days of receipt of an
invoice.
Failure to comply with the provisions of this section shall be a material breach of this contract and shall
constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms
"books", "records", "documents" and "other evidence", as used above, shall be construed to include
drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or
prepare a final printed document.
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ARTICLE 16
EXISTING CONTRACT DOCUMENTS
The Contract Documents in existence at the time of execution of this Agreement are as follows:
Agreement for Design Build Services
eeeeo~ater~at
Exhibit A- Contractor's Proposal ~0oo~~v p F Dr re.-,~
Exhibit B - Insurance Requirements for Contractors lv°
Exhibit C - Conflict of Interest Questionnaire
This Agreement is entered into as of the date set forth above.
CITY OF DENT XAS
GEO G C. CAMPBELL, CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: /
CONTRAC R
c_o T
ATTEST: B •
ICER, TITLE
n m $FA-X`(,
S:\prch\blanks\Contract Agreement Design Build Services with CIQ & Ins.doc
EXHIBIT A
September 22, 2008
TimBEAIY
0
Mr. Tom Shaw
City of Denton - Purchasing Department
901-B Texas Street
Denton, TX 76201
RE: Proposal for New Facilities Management Building
Woodrow Street, Denton, Texas
Dear Mr. Shaw:
Tim Beaty Builders, Inc. is pleased to submit this preliminary proposal to provide labor,
materials, and equipment for the Renovation and Addition the Facilities Management Building in
Denton, Texas per the preliminary plans dated 9122108 prepared by Kirkpatrick Architect Studio
and Tim Beaty Builders, Inc- and the specifications as described herein.
The total construction cost for this project is:
TOTAL DESIGNIBUILD COST: $ 1,387,371.00
Betterment Allowance 75,000.00-
TOTAL PROPOSAL: $ 1,462,371.00
Any afteration or deviation from the specifications, which involves extra cost wul be executed
only upon written orders and will become an additional charge to the original estimate. Any
changes-to these specifications can and will affect any agreements regarding estimated date of
completion for this project All agreements are contingent upon strikes, accidents or delays
beyond our control. Tim Beaty Builders, Inc. carves a $5,000,00Q General Liability policy and
Workers' Compensation insurance for your protection during construction.
Thank you for the opportunity to submit this proposal. Please feel free to contact me for
clarification on any point or with any questions you may have-
Respectfully,
~~g L_ J27
Tim Beaty
TB/dm
EO BOX 68
DENTON, TEXAS 76202
(940) 387-3275
FAX (940) 382-5461
CITY OF DENTON
FACILITIES MANAGEMENT
BID SPECIFICATIONS
EXISTING 8K BUILDING
Demolition - Selective demo of interior walls and partitions; demolition of exterior walls at west side of
building; selective demolition of paving to improve drainage on west side of building; removal of
roof-mounted exhaust fans; removal of overhead doors on east side of building; selective
demolition to accommodate storefront plumbing changes
Site Preparation - prepare for installation of drainage improvements on west side of building
Flatwork - modify concrete flatwork for changes to entry and ADA considerations
Rough Carpentry - replacement of exterior walls at west side of building; infill overhead door
openings; interior wall framing; installation of blocking for wall-mounted devices;
Canopy & Misc Steel - fabrication and installation of exterior canopies; lintels
Plaster - installation of Portland plaster finish system at exterior walls at west side of building
Masonry - installation of faux stone wainscot on west and south side of building
Acoustical Tile Ceiling - installation of suspended acoustical file ceiling throughout
Finished Carpentry - millwork, casework and wood trim in public areas at main entry
Waterproof/Caulking - caulking and sealing, as required
Resilient Flooring - vinyl composition file and rubber cove base
Insulation - wall and ceiling insulation at building envelope, and sound attenuation at interior walls
Doors, Frames & Hardware - hollow metal door frames, pre-finished, solid-core wood doors
Storefront & Glazing - Storefront systems and aluminum windows where indicated
Drywall
Ceramic Tile - Public entry floors; restroom floors and walls
Carpet-ALLOWANCE: $20.001s_y. installed
Painting - tape, bed, texture and paint drywall; paint door frames; stain millwork and wood trim; and
vinyl wall covering at wainscot in public entry
Fire Extinguisher Cabinets - in accordance with local and national fire codes
Toilet Accessories - toilet tissue dispensers, paper towel dispensers, mirrors, grab bars, and soap
dispensers
Toilet Partitions - painted enamel toilet partitions in public restrooms
ID Devices - ADA signage at restrooms, electrical and mechanical rooms and janitor closets
HVAC - gas fired heating/electric cooling direct-expansion split systems serving spaces as designated
Plumbing
Fire Sprinkler - in accordance with NFPA and local codes
Appliances- refrigerator, dishwasher, microwave and disposal in break room
Projector Screens - installation of two (2) projector screens (1-large conference room and 1-small
conference room)
Flag Poles - installation of three 25-ft. tapered poles
Electrical - as required by local and national codes, energy code and fire code
Generator - 75KW generator for basic services in the Tech area and Director's office suite
Fire Alarm - as required in RFP
Security -as required in RFP
Access Control - as required in RFP
Housekeepin g/Ma ke-Ready
City of Denton - Facilities Management
Rev 0 - Attached
September 22, 2008
Page 2 of 4
NEW TECH BUILDING
Site Preparation - Excavation, recondition of in situ material to depth of 24°, import of select fill to
prepare pad for building foundation
Soil Poisoning - application of termite preventative
Foundation - based on piers at building columns, perimeter beams and 5° slab, with vapor barrier
under floors planned for floor covering
Metal Building - pre-engineered symmetrical-gable metal building (approximately 35' x 45' x 12'-eave,
with 1:12 roof slope, with R-panel walls and standing-seam metal roof, standard color
Building Erection
Rough Carpentry - interior wall framing; installation of blocking for wall-mounted devices;
Plaster - installation of Portland plaster finish system at exterior wall at south side of building
Masonry - installation of faux stone wainscot on south side of building
Acoustical Tile Ceiling - installation of suspended acoustical the ceiling throughout
Finished Carpentry - millwork and casework in Tech Room
Insulation - wall and ceiling insulation at building envelope, and sound attenuation at interior walls
Doors, Frames & Hardware - hollow metal door frames, pre-finished, solid-core wood doors
Storefront & Glazing - Storefront systems and aluminum windows where indicated
Drywall
Ceramic Tile - file in shower room
Painting - tape, bed, texture and paint drywall; paint door frames; stain millwork and wood trim; and
vinyl wall covering at wainscot in public entry
Fire Extinguisher Cabinets - in accordance with local and national fire codes
Resilient Flooring
Waterproof/Caulking
Carpet -ALLOWANCE: $20.00/s.y. installed
Toilet Accessories - toilet tissue dispensers, paper towel dispensers, mirrors, grab bars, and soap
dispensers
ID Devices - ADA signage at restrooms, electrical and mechanical rooms and janitor closets
HVAC - gas-fired heating/electric cooling direct-expansion split systems serving spaces as designated
Plumbing
Fire Sprinikier - in accordance wiih NFPA and local codes
Appliances - washer and dryer in utility room
Electrical - as required by local and national codes, energy code and fire code
Fire Alarm - as required in RFP
Security - as required in RFP
Access Control - as required in RFP
Housekeeping/Make-Ready
City of Denton - Facilities Management
Rev 0 - Attached
September 22, 2008
Page 30f4
NEW SHOP BUILDING
Site Preparation - Excavation, recondition of in situ material to depth of 24", import of select fill to
prepare pad for building foundation
Soil Poisoning - application of termite preventative
Foundation - based on piers at building columns, perimeter beams and 5' slab, with vapor barrier
under floors planned for floor covering
Metal Building - pre-engineered symmetrical-gable metal building (approximately 120' x 50' x 12'-
eave, with 1:12 roof slope, with R-panel walls and standing-seam metal roof, standard color
Building Erection
Misc Steel
Personnel Doors, Hardware - Hollow metal doors and frames, painted
Overhead Doors - five (5) 10'x 12' sectional overhead doors with operators
Gutters & Downspouts
Fire Extinguisher Cabinets - in accordance with local and national fire codes
HVAC - gas-fired heatinglelectric cooling direct-expansion split systems serving spaces as designated
Plumbing
Fire Sprinkler - in accordance with NFPA and local codes
Appliances - washer and dryer in utility room
Electrical - as required by local and national codes, energy code and fire code
Fire Alarm - as required in RFP
Security - as required in RFP
Access.Control - as required in RFP
Housekeeping/Make-Ready
SITE
Demolition - selective demolition of existing pavement, curb and sidewalk to accommodate installation
of new paving and flatwork; demolition of existing dumpster revetment to accommodate installation
of new one to code standards
Site Preparation - treatment of substrate as required for installation of new paving and ftatwork
Erosion Control - BMP s as engineered in accordance with Texas Commission on Environmental
Quality
Perimeter Fence - 6-ft. chain-link fence at perimeter of rear storage yard, with automated gate with
electric operator
Dumpster Revetment - installation of new revetment in accordance with City of Denton standards
Concrete Paving - installation of concrete paving in accordance with City of Denton standards
Pavement Marking & Signage - installation of pavement marking and ADA signage
Site Utilities - installation of water, sewer, gas and storm water improvements
Landscaping (ALLOWANCE: $20,000)
City of Denton - Facilities Management
Rev 0 - Attached
September 22, 2008
Page 4 of 4
:Tim Beaty Builders, Inc. City of Denton • Facilities
Attached
SCHEDULE OF VALUES
Description
Amount
EXISTING 8K BUILDING
Demolition
18,785
Site Preparation
1,885
Flatwork
4,540
Rough Carpentry
31,252
Canopy & Misc Steel
12,862
Plaster
11,560
Masonry
12,312
Acoustical Tile Ceiling
20,018
Finished Carpentry
11,526
Waterproof/Caulking
2,700
Resilient Flooring
4,890
Insulation
11,152
Doors, Frames & Hardware
18,000
Storefront & Glazing
12,388
Drywall
16,642
Ceramic Tile
5,458
Carpet
14,960
Painting
30,978
• Fire Extinguisher Cabinets
417
Toilet Accessories
1,090
Toilet Partitions
2,600
ID Devices
196
HVAC
58,500
Plumbing
17,600
Fir-e SY1. te r
23,550
Appliances
1,400
Projector Screens
3,300
Flag Poles
7,500
Electrical
47,100
Generator, 75KW
43,575
Fire Alarm
9,813
Security
5,888
Access Control
15,700
Housekeeping/Make-Ready
9,813
General Conditions
19,450
Architecture Fees
42,800
Engineering Fees
23,000
Overhead
50,014
• Profit
33,342
SUBTOTAL„ EMSTING 8K
658,S16
9/22/20'08 1
Jim Beaty Builders, Inc.
City of Denton - Facilities
`
Attached
SCHEDULE OF VALUES
•
Desaiotion
Amount
NEW TECH BUILDING
Site Preparation
4,033
Soil Poisoning
394
Foundation
12,713
Metal Building
21,720
Building Erection
3,938
Rough Carpentry
8,477
Plaster
3,570
Masonry
770
Acoustical Tile Ceiling
4,016
Finished Carpentry
5,450
Insulation
3,086
Doors, Frames & Hardware
5,760
Storefront & Glazing
792
Drywall
4,180
Ceramic Tile
1,387
Painting
8,398
Resilient Flooring
2,464
Waterproof/Caulking
1,125
Carpet
1,520
•
Toilet Accessories
970
Fire Extinguisher Cabinets
139
ID Devices
196
HVAC
12,375
Plumbing
11,800
Fire Sprinkler
4.725
Appliances
1,400
Electrical
9,450
Fire Alarm
11969
Security
1,181
Access Control
3,150
Housekeeping/Make-Ready
1,969
General Conditions
5,682
Architecture Fees
12,500
Engineering Fees
6,730
Overhead
14,600
Profit
9,740
SUBTOTAL, NEW TECH BUILDING
192,369
•
9/22/2008
2
Tim Beaty Builders, Inc.
City of Denton • Facilities
SCHEDULE OF VALUES
Attached
• De=Won
Amouni
NEW SHOP BUILDING
Site Preparation
12,775
Soil Poisoning
1,500
Foundation
47,610
Metal Building
63,840
Building Erection
15,000
Misc Steel
7,500
Personnel Doors, Hardware
1,925
Overhead Doors
12,000
Gutters & Downspouts
1,920
Fire Extinguisher. Cabinets
417
HVAC
4,500
Fire Sprinkler
18,000
Specialties: Jib Crane
4,500
Electrical
36,000
Fire Alarm
7 SOO
Security
4,500
Access Control
12,000
Housekeeping/Make-Ready
7,500
General Conditions
10,283
Architecture Fees
22,600
Engineering Fees
12,200
Overhead
26,441
Profit
17,627
SUBTOTAL, NEW SHOP
348,136
SITE
Demolition
15,390
Site Preparation
900
Erosion Control
1,225
Perimeter Fence
13,990
Dumpster Revetment
2,794
Concrete Paving
36,124
Pavement Marking & Signage
1,575
Site Utilities
33,800
Landscaping (ALLOWANCE)
20,000
Housekeeping/Make-Ready
11500
General Conditions
5,047
Architecture Fees
11,000
Engineering Fees
61000
Overhead
12,979
Profit
8,652
SUBTOTAL, SITE
170,976
TOTAL
$ 1,3691999
Payment/Performance Bond
S 17,372
GRAND TOTAL
S 1,387,371
9/22/2008
3
EXHIBIT B
CITY OF DENTON
INSURANCE REQUIREMENTS FOR CONTRACTORS
Bidder's attention is directed to the insurance requirements below. It is highly recommended
that bidders confer with their respective insurance carriers or brokers to determine in advance
of Bid submission the availability of insurance certificates and endorsements as prescribed
and provided herein. If an apparent low bidder fails to comply strictly with the insurance
requirements, that bidder may be disqualified from award of the contract. Upon bid award, all
insurance requirements shall become contractual obligations, which the successful bidder
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.
As soon as practicable after notification of bid award, Contractor shall file with the Purchasing
Department satisfactory certificates of insurance, containing the bid number and title of the
project. Contractor may, upon written request to the Purchasing Department, ask for
clarification of any insurance requirements at any time; however, Contractors are strongly
advised to make such requests prior to bid opening, since the insurance requirements may not be
modified or waived after bid opening unless a written exception has been submitted with the bid.
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 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.
• Any deductibles or self-insured retentions shall be declared in the bid 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
SAPRCMContracts Documentsl4061 Fac Mgmt Bldg Design Build Contract.doc
• Cancellation: The City requires 30 day written notice should any of the
policies described on 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.
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EXHIBIT B
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 $1,000,000.00shall
be provided and maintained by the Contractor. The policy shall be written on an occurrence
basis either in a single policy or in a combination of underlying and umbrella or excess
policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
• Coverage A shall include premises, operations, products; and completed
operations, independent contractors, contractual liability covering this contract and
broad form property damage coverage.
Coverage B shall include personal injury.
Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO
Form GL 0404) is used, it shall include at least:
Bodily injury and Property Damage Liability for premises, operations, products
and completed operations, independent contractors and property 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 $500,000.00 either in a single policy or in a combination of basic
and umbrella or excess policies. The policy will include bodily injury and property damage
liability arising out of the operation, maintenance and use of all automobiles and mobile
equipment used in conjunction with this 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.
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EXHIBIT B
[X] Workers Compensation Insurance
Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to
meeting the minimum statutory requirements for issuance of such insurance, has 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 Worker's 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 combined bodily injury and property damage per
occurrence with a aggregate.
[ ] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to the
contractor or if a contractor leases or rents a portion of a City building. Limits of not less than
each occurrence are required.
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than per claim with respect to
negligent acts, errors or omissions in connection with professional services is required under this
Agreement.
[ ] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be
provided. Such policy shall include as "Named Insured" the City of Denton and all
subcontractors as their interests may appear.
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the
premises, burglary of the premises, and employee 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.
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EXHIBIT B
[ ] 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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EXHIBIT B
ATTACHMENT 1
[X] Worker's Compensation Coverage for Building or Construction Projects for Governmental
Entities
A. Definitions:
Certificate of coverage ("certificate ")-A copy of a certificate of insurance, a certificate of
authority to self-insure issued by the commission, or a coverage agreement (TWCC-81,
TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance
coverage for the person's or entity's employees providing services on a project, for the
duration of the project.
Duration of the project - includes the time from the beginning of the work on the project
until the contractor's/person's work on the project has been completed and accepted by the
governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) - includes all
persons or entities performing all or part of the services the contractor has undertaken to
perform on the project, regardless of whether that person contracted directly with the
contractor and regardless of whether that person has 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:
1) a certificate of coverage, prior to that person beginning work on the project, so the
governmental entity will have on file certificates of coverage showing coverage for all
persons providing services on the project; and
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EXHIBIT B
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.
1. The contractor shall contractually require each person with whom it contracts to provide
services on a project, to:
1) provide coverage, based on proper reporting of 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) 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 materially affects
the provision of coverage of any person providing services on the project; and
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EXHIBIT B
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.
S:\prch\blanks\Contract Agreement Design Build Services with CIQ & Ins.doc
EXHIBIT C
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session.
OFFICE USE ONLY
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a
Date Received
person doing business with the governmental entity.
By law this questionnaire must be filed with the records administrator of the local government not
later than the 7th business day after the date the person becomes aware of facts that require the
statement to be filed. See Section 176.006, Local Government Code.
A person commits an offense if the person violates Section 176.006, Local Government Code. An
offense under this section is a Class C misdemeanor.
1 1 Name of person who has a business relationship with local governmental entity.
r`
1A
T2
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 7th business
day after the date the originally filed questionnaire becomes incomplete or inaccurate.)
3 Name of local government officer with whom filer has an employment or business relationship.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business
relationship as defined by Section 176.001(1-a), 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
filer of the questionnaire?
0 Yes 0 No
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the
local government officer named in this section AND the taxable income is not received from the local governmental entity?
Yes E~ 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 10 percent or more?
ED Yes E-1 No
D. Describe each affiliation or business relationship.
4
Signature of person doing business with the governmental entity Date
Adopted 06/292007
S:\prch\blanl:s\Contract Agreement Design Build Services with CIQ & Ins.doc
i
PERFORMANCE BOND Bond ;4370270
STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENTS: That Tim Beaty Builders, Inc'whose
address is PO Box 68 Denton, TX 76202 hereinafter called Principal, and
SureTec Insurance Company ✓ , a corporation organized and existing under the
laws of the State of Texas , and fully authorized to transact business in the State of
Texas, as Surety, are held and firmly bound unto the City of Denton, a municipal corporation
organized and existing under the laws of the State of Texas, hereinafter called Owner, in the
penal sum of One Million Four undred Sixty Two Thousand Three Hundred Seventy One and
0/100 DOLLARS $1 462.371 plus ten percent of the stated penal sum as an additional sum of
money representing additional court expenses, attorneys' fees, and liquidated damages arising out
of or connected with the below identified Contract, in lawful money of the United States, to be
paid in Denton County, Texas, for the payment of which sum well and truly to be made, we
hereby bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and
severally, firmly by these presents. This Bond shall automatically be increased by the amount of
any Change Order or Supplemental Agreement, which increases the Contract price, but in no
event shall a Change Order or Supplemental Agreement, which reduces the Contract price,
decrease the penal sum of this Bond.
THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal
entered into a certain Contract, identified by Ordinance Number 2008-250, with the City of
Denton, the Owner, dated the 21 day of October_ A.D. 2008,or RFP 94061-Design/Build New
Facilities Management Building. ✓
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill
all of the undertakings, covenants, terms, conditions and agreements of said Contract in
accordance with the Plans, Specifications and Contract Documents during the original term
thereof and any extension thereof which may be granted by the Owner, with or without notice to
the Surety, and during the life of any guaranty or warranty required under this Contract, and shall
also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and
agreements of any and all duly authorized modifications of said Contract that may hereafter be
made, notice of which modifications to the Surety being hereby waived; and, if the Principal
shall repair and/or replace all defects due to faulty materials and workmanship that appear within
a period of two (2) years from the date of final completion and final acceptance of the Work by
the Owner; and, if the Principal shall fully indemnify and save harmless the Owner from all costs
and damages which Owner may suffer by reason of failure to so perform herein and shall fully
reimburse and repay Owner all outlay and expense which the Owner may incur in making good
any default or deficiency, then this obligation shall be void; otherwise, it shall remain in full
force and effect.
PB - 1
1
PROVIDED FURTHER, that if any legal action be filed upon this Bond, exclusive venue
shall lie in Denton County, State of Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates
and agrees that no change, extension of time, alteration or addition to the terms of the Contract,
or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc.,
accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby
waive notice of any such change, extension of time, alteration or addition to the terms of the
Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings,
etc.
This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government
Code, as amended, and any other applicable statutes of the State of Texas.
The undersigned and designated agent is hereby designated by the Surety herein as the
Resident Agent in Denton County to whom any requisite notices may be delivered and on whom
service of process may be had in matters arising out of such suretyship, as provided by Article
7.19-1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas.
IN WITNESS WHEREOF, this instrument is executed in four copies each one of which
shall be deemed an original, this the 12th day of December, 2008 7
ATTEST:
BY:
SE RETARY
PRINCIPAL
BY-
SIDENT
ATTEST:
BY:
SURETY
SureTec Insurance Companz
BY:
ATTORNEY-IN-FACT
The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of
the process is:
NAME: PCL Contract Bonding Agency
STREET ADDRESS: 417 Oakbend Dr., Suite 150, Lewisville, TX 75067
(NOTE: Date of Performance Bond must be date of Contract. If Resident Agent is not a corporation,
give a person's name)
PB-2
&~640
PAYMENT BOND Bond #4370270
STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENTS: That Tim Beaty Builders, Inc!whose
address is PO Box 68 Denton, TX 76202 hereinafter called Principal, and
SureTec Insurance Company/ , a corporation organized and existing under the laws
of the State of Texas , and fully authorized to transact
business in the State of Texas, as Surety, are held and firmly bound unto the City of Denton, a
municipal corporation organized and existing under the laws of the State of Texas, hereinafter
called Owner, and unto all persons, firms, and corporations who may furnish materials for, or
perform labor upon, the building or improvements hereinafter referred to, in the penal sum of
One Million Four Hundred Sixty Two Thousand Three Hundred Seventy One and 01100✓
DOLLARS ($1,462,371)/in lawful money of the United States, to be paid in Denton, County,
Texas, for the payment of which sum well and truly to be made, we hereby bind ourselves, our
heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these
presents. This Bond shall automatically be increased by the amount of any Change Order or
Supplemental Agreement which increases the Contract price, but in no event shall a Change
Order or Supplemental Agreement which reduces the Contract price decrease the penal sum of
this Bond.
THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal
entered into a certain Contract, identified by Ordinance Number 2008-250, with the City of
Denton, the Owner, dated the 21 day of October A.D. 2008,A~or RFP #4061-Design/Build New
Facilities Management Building.
NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties
and make prompt payment to all persons, firms, subcontractors, corporations and claimants
supplying labor and/or material in the prosecution of the Work provided for in said Contract and
any and all duly authorized modifications of said Contract that may hereafter be made, notice of
which modifications to the Surety being hereby expressly waived, then this obligation shall be
void; otherwise it shall remain in full force and effect.
PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive venue
shall lie in Denton County, Texas.
AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates
and agrees that no change, extension of time, alteration or addition to the terms of the Contract,
or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc.,
accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby
waive notice of any such change, extension of time, alteration or addition to the terms of the
Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings,
etc.
PB-3
This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government
Code, as amended, and any other applicable statutes of the State of Texas.
The undersigned and designated agent is hereby designated by the Surety herein as the
Resident Agent in Denton County to whom any requisite notices may be delivered and on whom
service of process may be had in matters arising out of such surety, as provided by Article 7.19-1
of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas.
IN WITNESS WHEREOF,.this instrument is executed in four copies, each one of which
shall be deemed an original, this the 12th day of December, 2008 ✓
ATTEST:
BY:
SEC WARY
ATTEST:
BY:
PRINCIPAL
BY-
SIDENT
SURETY
SureTec Insurance Company
BY: ( L"l4 .sue
ATTORNEY-IN-FACT
The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of
the process is:
NAME: PCL Contract Bonding Agency
STREET ADDRESS: 417 Oakbend Dr., Suite 150, Lewisville, TX 75067
(NOTE: Date of Payment Bond must be date of Contract. If Resident Agent is not a
corporation, give a person's name)
PB-4
0`~
kINV
Great American Insurance Company of New York
GxEATA~iFRrealy Great American Alliance Insurance Company
ttljUaavcc CIRCUP Great American Insurance Company
LI-IPORTANT NOTICE:
To obtain irtiormation or make a complaint:
You may contact the Texas Department of Insurance to obtain information on companies,
covera.ges, rights or complaints at:
1-800-232-3439
You may write the Texas Department of Insurance at:
P.O. Box 149104
Austin,'ITX 7 87 1 4-9 1 04
FAX # 1-512-475-1771
Your notice of claim against the attached bond may be given to the surety company that issued
the bond by sending it to the following address:
hlailine Address: Great American Insurance Company Claim
P.O. Box 2575
Cincinnati, Ohio 45201
Phvsical Address; Great American Insurance Company Claim
580 Walnut street
7th Floor
Cincinnati. Ohio 45201
Yau r:_•. also contact tnc Great Arncrican Insurance Corm_n,.• Cla"M ofic: by teieohon= a::
Teleanone \Lr nber: 1-513-369-5069
PR-ENLrU.t OR CLALM n7SP11TFC:
If you hz,.e a dtsputc concerning a premium., you should contact the agent fL*s:. If you have a
etispu!e concerning a claim, you should contact the company: fL~s:. If the dis"utc is not resolved,
you may contact the Texas Departmenc of InsLLance.
ATTACH THIS NOTICE TO YOUR 60\U:
This notice is fo. information only- and dots not become a pan or condition of Ltie a:cached
docurncat.
FAA t"M i i
POA 4221 151
SureTec Insurance Company
LIMITED POWER OF ATTORNEY
Know All Alen by These Presents, That SURETEC INSURANCE COMPANY the "Company"), a corporation duly organized and
existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents
make, constitute and appoint /
Steven E. Burleson,-Donal E. Boley, George S. Deal, Staci J. Gross',/'
its true and lawful Attomey-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge
and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include waivers to the
conditions of contracts and consents of surety, providing the bond penalty does not exceed /
Five Million Dollars and no/100 (55,000,000.00)1
and to bind the Company thereby as fully and to the same extent as if such bond were signed by the President, sealed with the corporate
seal of the Company and duly attested by its Secretary, hereby ratifying and q rifinning all that the said Attorney(s)-in-Fact may do in the
premises. Said appointment shall continue in force until 12/31/10 : and is made under and by authority of the following
resolutions of the Board of Directors of the SureTec Insurance Company:
Be it Resolved, that the President, any Vice-President, any Assistant Vice-President, any Secretary or any Assistant Secretary shall be and is
hereby vested with full power and authority to appoint any one or more suitable persons as Attomey(s)-in-Fact to represent and act for and on
behalf of the Company subject to the following provisions:
Attornei-in-Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, acknowledge and
deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all
notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such
Attorney-in-Fact shall be binding upon the Company as if signed by the President and sealed and effected by the Corporate Secretary.
Be it Resolved, that the signature of any authorized officer and seal of The Company heretofore or hereafter affixed to any power of attorney or
any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signature or facsimile seal shall be valid
and binding upon the Company with respect to any bond or undertaking to which it is attached. (Adopted at a meeting held omr-2ah of April,
1999.)
fit Witness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its President, and its corporate seal
to be hereto affixed this 28th day of October, A.D. 2008.
SURETEC INS `CE COMPANY
By:
r B.J. Ki resident
State of Texas ss: Y~~.,
County of Hams y ~ On this 28h day of October, 2008 before me personally came B.J. King, to me known, who, being by me duly sworn, did depose and say, that he resides
in Houston, Texas, that he is President of SURF,TEC INSURANCE COMPANY, the company described in and which executed the above instrument;
that he knows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of
Directors of said Company; and that he signed his name thereto by like order.
Michelle Denny
. Notary Pubtlo
State of Texas rU
Iy
Ex0resAtaQtaR17,2011 to ait IL-C, ytyt,(,y-
Michelle Denny, Notary P lic
My commission expires August 27, 2012
I. M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy
of a Power of Attorney, executed by said Company, which is still in full force and effect; and furthermore, the resolutions of the Board of Directors, set
out in the Power of Attorney are in full force and effect.
Given tinder my hand and the seal of said Company at Houston, Texas this 12th day of December , 20 08 ,
V
M. Brent eaty, Assis ant Secretary
Any instrument issued in excess of the penalty stated above Is totally void and without any validity.
For verification of the authority of this power you may call (713) 812-0800 any business day between 8:00 am and 5:00 pm CST.
-I
CERTIFICA ~E OF
AC
ORD
E OP ID SA
LIABILITY INSURAIV.
DATE (MMIDDJYYYY)
-
.
.
BEATT-1
11/12/08
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Boley Featherston Insurance
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
a Member of K & S Group, Inc
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR.
P. O. Box 97513
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Wichita Falls TX 76307-7513
Phone:940-723-7111 Fax:940-322-9549
INSURERS AFFORDING COVERAGE
NAIC#
INSURED
INSU2ERA Bituminous Casualty Corp
20095
fy
INSURER B: Texas Mutual Ins Co
Tim Beaty Builders Inc.✓
INSUREERC:
P O Box b 8
INSURER D:
Denton TX 76202
7
wsLaER
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
LTR
NS
TYPE OF INSURANCE
POLICY NUMBER
DATE MMIDOIYY)
DATE (MMIDDIY ~
LAITS
GENERAL LIABILITY
/
OCOJRRQdCE I
s 1,000 '0 0 0
A
X
X
-
COt1ERCV+LGENERAL LIABILITY
3255095E✓/
07/01/08
07/01/09
pREM1SES(Eeocctrrence)
5 100,000
CLAIMS MADE OCCUR
7 F
MID EXP (Af1y one person)
S 10,000
PERSONAL & ADV INJURY 1
$3.,000,000
GENERAL AGGREGATE I
s 2, 000 , 0 0 0
GENZ. AGGREGATE LIMIT APPLIES PER'
-
PRODUCT S - COMP%OP AGG 1
$2,000',000
X POLICY ~ E
LOC
]
I
AUTOMOBILE LIABILT/'~,'
a
COMBINED
SINGLE LIMIT'
$1
000
000
~
A
X
X ANY ALTO
✓
CAP3522953B✓
07/01/08
07/01/69
We
ccide
,
,
ALL OWNED AUTOS
BODILY INJURY
SCHEDIAED AUTOS
(Per won)
s
HIRED AUTOS
BODILY INJURY
NON -M-WED AUTOS
(Per accident)
$
R
PROPERTY DAMAGE
(Per accidert)
I $
GARAGE LUIBILTTY
i
ALTO ONLY.- EA ACCIDENT
I $
ANY AUTO
OTHER TrIAN EA ACC
Is
AUTO ONLY: Al3G
$
EXCESSIUMBRELLA LIABILITY
EACH OCCURRENCE
I S 4, 0 0 0 i 0 0 0
A
X OCCLR I CLAIMS MADE
CUP25831768
07/01/08
07/01/09
AGGREGATE.
s4,000.,000
.
s
DEDUCTIBLE
$
X
RETENTION s 10 , 0 0 0
$
WORKERS COMPENSATION AND
'
X' TORY LIMTiS I il*
B
EMPLOYERS
LIABILITY
ANY PROPRIETOPJPARnER/EYECUTTVE
TSF0001070586
07/01/08
07/01/09
E.LEACH aCCIDErar
51000000
OFFICER/MENmER EXCLUDED?
E.L. DISE.A E- EA EMPLOY
S 10 0 0 0 0 0
If yes, describe under
SPECIAL PROVISIONS below
E.L. DISEASE - POLICY LIMIT
s 1000000
OTHER
DESCRIPTION OF OPERATIONS I LOCATIONS 1 VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT 1 SPECIAL PROVISIONS
CITY OFD ON IS ADDED AS ADDITIONAL INSURED IN REGARD TO GENERAL LIABILITY
AND AUTO LIABILITY WITH %kIVER OF SUBROGATION APPLICABLE IN THEIR FAVOR ON
WORKERS COMPENSATION, AS REQUIRED BY WRITTEN CONTRACT.✓
CERTIFICATE HOLDER CANCELLATION
/ DENTCO 3
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE TH~-EXPIRATION
CITY OF DENTON r✓
DATE THEREOF., THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30~ DDAAYS ":%N
ENGINEERING DEPT
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT; BUT FAILURE TO DO SO SHALL
ATTN CHAD ALLEN, ENGINEER
601 E HICKORY, SUITE B
IMPOSE NO OBLIGATION OR LIABILITY OF ANY IUND UPON THE M UIRSF , ITS AGENTS OR
DENTON TX 76205
REPRESENTATIVES.
a
5592/
ACURU 20 (2001100) D ACORD CORPORATION 191
:i ,
1
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it
affirmatively or negatively amend, a)dend or alter the coverage afforded by the policies listed thereon.
J