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2000-040 ORDINANCE NO AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A WATER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND LENNOX OAKS-II, L P FOR THE CITY'S PARTICIPATION IN THE OVERSIZING OF WATER MAINS AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS ORDINANCE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the Oty desires to pamc~pate in the cost of oversxzlng water maxns to be demgned, installed, and constructed by Lennox Oaks-II, L P m an amount not to exceed Twenty Thousand Two Hundred One Dollars and Eighty-Four Cents ($ 20,201 84), in accordance wah §34-118(b)(2) of the Code of Orchnances of the Oty of Denton, Texas and TEX LOC GOV'T CODE §212 072, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ~ That the C~ty Manager is authorized to execute a Water Mam Cost Partnnpatlon Agreement Between the C~ty of Denton and Lennox Oaks-II, L P for the overs~zmg of approximately 3,062 hnear feet of e~ght (8") ~nch on-me water mare to a twelve (12") ~nch water mmn, substantmlly in the form of the attached Agreement, which ~s ~ncorporated herewith and made a part of thru ordinance for all purposes, subject to Lennox Oaks-II, L P, entenng into a Development Contract w~th the Oty of Denton, ~n accordance w~th Chapter 34 of the Code of Ordinances of the Oty of Denton, Texas ~ That the C~ty Manager ~s hereby authorized to make the expen&tures as set forth in the attached Agreement SECTION 3 That th~s ordinance shall become effective ~mmed~ately upon its passage and approval PASSED AND APPROVED th~s the / ~/- day of ,,~_~/_]f2,(~/~ ,2000 ? ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY S \Our Doeurr~nts\Ordmances\99\Watgr Mare Cost Pat~l¢lp Agrmt Lennox Oaks 11 ord doe THE STATE OF TEXAS § COUNTY OF DENTON § WATER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND LENNOX OAKS-II, L P WHEREAS, Lennox Oaks-II, L P hereafter referred to as "Developer", whose business address is 6116 North Central Expressway, State 1313, Dallas, Texas 75206 wishes to develop and improve certoan real property named "OAKMONT" (as shown m Exhibit I, attached hereto and incorporated herein by reference), located in the City of Denton, Texas or its extraterritorial jurisdiction, and is required to provide such real property with adequate capacity by deslgrung, constructing and mstalhng a water hne of an inside diameter of eight inches (8"), hereat~er referred to as the "Required Facthtles", and WHEREAS, the City of Denton, Texas, a Municipal Corporation with its offices located at 215 East McFanney, Denton, Texas 76201, hereafter referred to as the "City,' in accordance with its ordinances, wishes to participate in the cost of the construction and installation of said water moan to provide for an "oversized" water moan to expand its utility system and insure adequate utility service to other customers, NOW, THEREFORE, m consideration of the mutual promises and covenants contained herein the Developer and the City AGREE as follows 1 Developer shall design, install, and construct approximately 3,062 linear feet of twelve (12") tach water moans and all necessary appurtenances thereto, hereai~er referred to as the "Oversized Faclhtles" as shown on Exhibit I, attached hereto and incorporated hereto by reference 2 As required by Chapter 34 of the Code of Ordinances of City of Denton, Texas, Developer will enter into a Development Contract prior to beginning of construction of the Oversized Facilities This Development Contract is attached hereto as Exhibit II and incorporated herein by reference Ttus Agreement is subject to and governed by soad Development Contract and any other applicable ordinances of the City of Denton, Texas 3 Prior to beg~nmng of construction of the Oversized Facilities, Developer shall obtain, at Developer's sole cost and expense, all necessary permits, licenses and easements Thc easements, deeds, and plats therefor obtained by Developer shall be reviewed and approved as to form and substance by City prior to the beginning of construction If Developer is unable to acqmre needed easements, Developer shall provide City with any requested documentation of efforts to obtoan such easements, including evidence of negotiations and reasonable offers made to the affected property owners Any easements for the Oversized Facilities obtoaned by the Developer shall be assigned to City, if not taken m City's name, prior to acceptance of the Oversized Faoalltles, and Developer warrants clear title to such easements and will defend City against any adverse claim made agoanst such title 4 City's share in the cost of the Oversized Factht~es Based upon the difference m the cost of lnstalhng Required Facilities, as determined by City, and the cost of the Oversized Facilities, as determined by City, shall be in an amount not to exceed Twenty Thousand Two Hundred One Dollars and eighty-four Cents ($20,201 84) City may elect one of the followmg methods to determine City's share of the cost a) Developer shall prepare plans and specifications and furnish them to City City shall competitively bid the reqmred line and the Oversized Facilities in accordance with Chapter 252 of the Texas Local Government Code The difference in the bids shall be used to determme the City's share, subject to City's maximum pammpatlon in cost as specified in flus Agreement, or b) Developer shall prepare plans and specifications and take bids on the required line and the Oversized Facilities City shall pay Developer the least amount of the followmg (1) The difference m the bids for the required line and the Oversized Facilities, or (2) Tlurty percent (30%) of the bid on the Oversized Facilities as provided for in §212 072 of the Texas Local Government Code or (3) $20,201 86, the maximum participation cost allowed herein The City shall not, an any case, be liable for any additional cost because of delays m beginning, contlnmng, or completmg construction, changes in the price or cost of matenals, supplies, or labor, unforeseen or unanticipated cost because of topography, soil, subsurface, or other site conditions, differences in the calculated and actual per linear feet of pipe or matenals needed for the Oversized Facilities, Developer's decision as to the contractors or subcontractors used to perform the work, or any other reason or cause, specified or unspecified, relating to the construction of the Oversized Faclhtles 5 The City will make monthly payments for its share of the Oversized Faclhtles The Developer shall submit monthly pay requests on forms provided by the City The Developer's engineer shall verify that each pay request is correct Each pay request, along with the engineer's verification, shall be submitted to the Englneenng & Transportation Department of the City The City will retain 10% of the total dollar amount until the project is accepted Payment by the City to the Developer will be made within thirty (30) days of receipt of the pay estimate and the engineer's verification 6 To determine the actual cost of the Oversized Facilities, City shall have the right to inspect any and all records of Developer, his agents, employees, contractors or subcontractors, and shall have the right to require Developer to subnnt any necessary information, documents, invoices, receipts or other records to verify the actual cost of the Oversized Facilities 7 All notices, payments or communications to be given or made pursuant to this Agreement by the parties hereto, shall be sent to Developer at the business address given above and to the Assistant City Manager for Utlhtles for City at the address given above 8 Developer shall indemnify and hold City harmless from any and all clmms, damages, loss or llablhty of any kind whatsoever, by reason of injury to property or person occasioned by any act or omission, neglect or wrongdoing of Developer, 1ts officers, agents, employees, mvltees, contractors or other persons with regard to the performance of this Agreement, and Developer shall, at its own cost and expense, defend and protect Ctty against any and all such clmms and demands 9 If Developer does not begin substantml construction of the Oversxzed Facflxtxes wxtinn twelve (12) months of the effective date of execution of tins Agreement, tins Agreement shall termmate 10 Tins mstrument embodies the entire agreement of the parties hereto and there are no promxses, terms, condxtxons or obhgat~ons other than those contmned or incorporated herexn Tins Agreement shall supersede all prewous commumcat~ons, representations or agreements, whether verbal or written, between the parties hereto w~th respect to the subject matter of tins Agreement 11 Tins Agreement shall not be assigned by Developer wxthout the express written consent of the Cxty 12 Any and all stats for any breach of this Agreement, or any other stat pertmmng to or arising out of tins Agreement, shall be brought m a court of competent junsdmt~on m Denton County, Texas Tins Agreement shall be governed by and construed xn accordance wxth the laws of the State of Texas EXECUTED xn duphcate original cotmterpart~ by the duly-au,[hot, zed officials and officers of the C~ty and the Developer, on tins the /'5~-~ day of ,~_~~ , 2000 CITY OF DENTON, TEXAS A Texas Mummpal Corporation By~ ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY "DEVELOPER" LENNOX OAKS-II, L P ATTEST S \Our Documents\Contracts\99\Water Mare Part~c~p Agrmt Lennox Oaksql LP doc PROJECT LOCATION ' $0~2 LINEAR ~ OAKIViONT II SECTION I Engm~r/d~w~iopm~=onm~t THE STATE OF TEXAS § DEVELOPMENT CONTRACT COUNTY OF DENTON § ~her~as, Lennox Oak II, L. P. herea.~r referred to as "Owner," whose basmess address as 6116 N. C~'~1 ~.,~,. Suite 1313, Dallas, Texas 75206 , is the owner of real proper~ located m the corporate Imu~ of the Caty of Denton, or au ex~atm'ntons/junsd~¢~on, and Whereas, Owner w~shes to develop the property smd such development must be performed m accordance vath the apphcable ordinances of the Caty of Denton, hereaf%er referred to as "City", and Whereas, as a concht~on to the begummg of construcUon of smd development, a development contract m accordance v~th Section 212 071 of the Local Government Code m requared to ensure that all streets, water and sewer Janes, drainage facflmes and other amprovements whtch are to be dedtcated to the pubhe, hereal~er referred to as "Improvements," are constructed m accordance vnth the C~ty's spemficatmns, standards and ord,.ances, and [select apphcable provmmn as follows] PAGE 1 EXHIBIT II ~ Whereas, the Owner elects to consiruct the Improvements w~thout contracting w~th another party as prime contractor, m wlnch case the prowslons of tins contract wbach refer to "Owner" or "Contractor" sl'all mean the Owner as named above, or ~ Whereas, the Owner elects to make such Improvements hereafter set forth by contractlllgWlth Pal:e Brot:he~rs Construct'ton. Thc whose busmess address is 780 'Jesl: N_ansffieil. d ILil~hway~ Kenneda1% Texas 76060 hereafter referred to as "Contractor", and Whereas, Owner and Contractor recograze that the City has an interest in ensunng that the Improvements sllbject to this agreement, which vail, upon completaon and acceptance by the City, become public property, are properly constructed m accordance vath the City's speclfical~ons and that payment Is made therefor, WITNESSETH As to the Improvements to be dechcated to the public, as specified in Exhibit A, attached hereto and incorporated by reference, to be installed and constructed at 0~kmont lz. Seci:±on 5000 Si:al:a School P. cl, Deui:on, T~.xas the Owner, Contractor and City, in consideration of their mutual prormses and covenants contained hereto, agree as follows 1 Covenants of Contractor Contractor agrees as follows (a) Specifications To construct and install the Improvements in accordance vath PAGE 2 the procedures, specifications and standards contained m Division II and III of the City's Standard Specli!_e_~-ons for Public Works Construction. North Central Texas. as amended, and all addendums thereto, and all other regulations, ordinances or specifications applicable to such Improvements, such specifications, standards, regulations and ordinances being expressly incorporated hereto by reference and being made a part of the agreement as though written herein (b) ~uthontv of City R~neer, Inspections. Tests and Orders Owner and Contractors Warranty That all work on the Improvements shall be performed in a good and workmanhke manner and to the satisfaction of the C~ty Engineer or Ins representative The City Engineer shall decide all questions, which arise as to the quality and acceptability of materials furmshed, work performed, and the interpretation of spec~ficauons Guarantee for a period of one year from the date of final acceptance all work as called for m the specification and contract documents to be free from defects m materials and workmansInp Owner, contractor and their surety as the case may be shall remedy any such defects ,n matenals and worl<manstup and pay for any. damage to the work or to other work guarantee for a period of one year from the date of final acceptance all work as called for m the specification and contract documents to be free from defects in materials and/or faclhtles winch shall appear w~tinn one yea~ from the date of final completion and acceptance by the City The Contractor shall furmsh the City Engineer or Ins representative w~th every reasonable facility for ascerta~mng whether or not the work performed was m accordance w~th the specifications applicable thereto Any work done or matenals used v~thout suitable PAGE 3 Engtn~r/d~¥~loprn~nl~onm~ inspection by the City may be ordered removed and replaced at Contractor's expense The Owner, the Conu'actor and their surety on the performance bond shall and do hereby warrant and guarantee for a period of one year fi:om the date of final acceptance all work as called for m the specification and contract documents to be free from defects m materials and workmansbap Owner, contractor and their surety as the case may be shall remedy any such defects m materials and workmanslup and pay for any damage to the work or to other work or facfl~tles w~ch shall appear w~thm one year fi:om the date of final acceptance by the C~ty The City Engmear or bas designee shall perform periodic inspections of the work and shall perform a final mspe~on prior to the work being turned over to the City and an inspection 30 days prior to the exp~rauon of one year fi:om the date of final completaon and acceptance of the work by the City Upon failure of the Contractor to allow for inspection, to test materials furmshed, to satisfactorily repair, remove or replace, if so directed, rejected, unauthor- ized or condemned work or materials, or to follow my other request or order of the C~ty Engineer or bas representatave, the C~ty Engineer shall notify the O~raer of such failure and may suspend inspections of such work until such failure is remedaed If such failure is not remedied to the satasfact~on of the C~ty Engineer, the C~ty shall have no obhgataon under th~s agreement to approve or accept the Improvements (c) Insurance To provide for insurance m accordance w~th the insurance requarements apphcable to contractors as prowded for m Item 1 26 of D~vls~on ! of the Standard Specifications for Public Works Construction, North Central Texas, as amended, the provisions of wbaeh are expressly incorporated hereto by reference, prowded, however, for purpose of tl~s PAGE 4 En;m=e~/d~=ioprn=n=on~ct prows~on only, "Owner," as used thereto, shall mean the City of Denton (d) Means and Methods of Constructmn That the means and methods of constmcUon shall be such as Contractor may choose, subject, however, to the C~ty's right to reject any hnpmvements for which the means or method of construcuon does not, m the judgment of the C~ty En~neer, assure that th~ Improvements were constructed m accordance wth City spec~ficat~ous (e) ~ All of the Owner's and the Contractor's books and other records related to the project shall be avmlable for mspecuon by the mumclpahty 2 M~)~).! Cove~.nt~ of Owner and Contractor Owner and Contractor mutually agree as follows (a) ~ That ~f btuldmg perrmts are to be issued for the development prior to completion and acceptance of all Lrnprovements that are to be dechcated to the public, the followlig security reqtnrements shall apply (i) The Owner or Developer shall provide a per~'ormance bond m an amount not less than the amount necessary to complete the Improvements, as determined by the C~ty Engineer, shall be submitted guaranteeing the full and faithful compleuon of the Improvements meeung the spec~ficattons of the City, shall be m favor of the City, and shall be executed by a surety company authorized to do business m the State of Te~s m accordance ~th Chapter 2253 of the Texas Government Code The Owner and his Contractor shall assign any and all rights m the bond to the C~ty at the ttme the unprovements are transferred to and accepted by the City If the cost of completing the unprovements at the tune btulchng pernuts are issued is an amount of $15,000 or less, as determined by the City Engineer, cash money m the amount necessary to complete the unprovements, as determined by the City Engineer, may be deposited v~th a bank or escrow ~ent pursuant to an escrow agreement ensunng PAGE 5 completion of the unprovements vathout exception, the City's escrow agreement form shall be used and the escrow agreement shall remam m effect for one year fi.om the date of final completion and acceptance of the work by the C~ty (b) Retama~e. Final Payments [This prows~on (e) apphes only where the Owner and Contractor are not the same party ] That as security for the fmthful compleuon of the Improvements, Contractor and Owner agrees that the Owner shall retain ten percent of the total dollar amount of the contract price antfl after final approval or acceptance of the maprovements by the City The Owner shall thereai~er pay the Contractor the retamage, only after Contractor has furnished to the Owner satasfaetory ewdence including Owners affidawt that all indebtedness has been prod, that all mdebtecLuess connected w~th the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furmshed for and used m the performance of the work have been prod or otherv~ase satisfied (e) Encumbrances That upon compleUon and approval or acceptance of the Improvements of'the C~ty, the Improvements shall become the property of the C~ty flee and clear of all hens, ctmms, charges or encumbrances of any kind If, a~er acceptance of the Improvements, any clam~, hen, charge or encumbrance ~s made, or found to exist, agmnst the Improvements, or land dedicated to the C~ty, to wtueh they are affixed, the Owner and Contractor shall upon notace by the C~ty promptly cause such elmm hen, charge or encumbrance to be satisfied and released or promptly post a bond wth the C~ty m the amount of such clmm, hen, charge or encumbrance, m favor of the C~ty, to ensure payment of such claun, hen, charge or encumbrance PAGE 6 '~n glne~'/developmen~'on~Tact (d) ~ The Owner shall and hereby does mdemnafy, defend and save harmless, the City, its officers, agents and employees from all suits, actaons or clmms of any character, name and descnptton brought for or on account of any injuries or damages received as sustmned by any person, persons or property on account of the operations of the Contractor, bas agents, employees or subcontractors, or on account of any neghgent act of fault of the Contractor, bas agents, employees or subcontractors m eonsmactton of the maprovements, and shall pay any judgment, wath costs, wbach may be obtmned against the City growing out of such injury or damage (e) ~ That the provision of th~s agreement shall control over any confhetmg prowslon of any contract between the Owner and Contractor as to the construction of the Improvements 3 Covenants of C~tv That, upon proper completxon of the Improvements an accordance with thts agreement, the C~ty agrees to accept the Improvements 4 Venue and Governing Law The partaes hereto agree that t_has contract shall be enforceable m Denton County, Texas, and if legal action is necessary m eonnecUon therewith, exclusive venue shall lie in Denton County, Texas The terms and provisions of ttus contract shall be construed m accordance vnth the laws and court decisions of the State of Texas 5 Successor and Ass~ens Tbas contract shall be binding upon and mute to the benefit of the pames hereto, their respective successors and assigns PAGE 7 LENNOX OAK II, L~P. PATE BROTHERS CONSTRUCTION BY: LENNOX INVESTNENTS, INC. GENERAL ~AETNEE · '~ EIS~kLLE LLOYD Do PRESIDENT PP~SIDE~ CITT O~ DEMTON, TEXAS ATTEST ~ w~$rALTEi~$, CITY SECRETA_KY APPKOVED AS TO LEGAL FORM' HERBERT L. PROUTY, CITY ATTOKNEY PAGE8 AAA046FD OO ' ' CT PERFORMANCE BOND Bond #8155-24-96 THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS COUNTY OF DENTO~ § That ?~e Brothers Construction, Inc , 780 W Mansfield Hwy. Kennedale, TX. 76060 of Tarrant County, Texas, hereznafter called Prznczpal and Federal Insruance Company, 15 Mountain View Road, Warren, N3 07059 a Corporatzon Organized under the laws of the State of Indiana and authorized to do business in the State of Texas, hereinafter called "Surety", are held and f~rmly bound unto the Clty of Denton, Texas, a Munlcipal Corporation, in Denton County, Texas, hereinafter called "Czty" zn the penal sum of Six Hundred & Twenty-Two Thousand, Four Hundred and Seventeen Dollars and 06/100 .................. ($6227417.06 ....... ). Dollars, lawful money of the Unzted States, for the payment of which sum well and truly to be made we bsnd ourselves, our hezrs, executors, admznsstrators, and successors, 3osntly and severally, and f~rmly by these presents THE Condition of this Obligatzon zs such that WHEREAS, the Principal entered, znto a certazn contract with Owner, dated ~ the day of A~)q , 1998 , ~n the proper performance of which the Cz~y of Denton, Texas, has an mnterest, a copy of which is hereto attached and made a part hereof, for the constructmon of Utility Construction at Oakmont II, Section 1 zu Denton, TX NOW, THEREFORE, ~f the Przncipal shall well, truly, and faithfully cause to be performed and fulfllled all of the undertakings, covenants, terms, condzt~ons, and agreements of sazd Contract in accordance with the Plans, Speclflcatlons, and Contract Documents during the orzglnal term thereof, and any extenszon thereof which may be granted, wlth or wzthout notice to the surety, PAGE ONE and durzng the lzfe of any guaranty required under the Contract, whzch ls ~ncorporated, as if wrltten word for word hereln, and shall also well and truly cause to be performed and fulfllled all the covenants, terms and condlt~ons and agreements of any and all authorized modifications of said Contract that may hereafter be made lnclud~ng, w~thout llmltatlon, to remedy and pay for any defects an material and workmanship or damage to other work or facilities which shall appear within one year from the date of flnal completion, notlce of whzch modifications to the surety being hereby waived, then this obl~gatlon shall be void, otherwzse to remazn ~n full force and effect PROVIDED, further, that if any legal action be f~led on th~s bond, venue shall lie in Denton County AND, that sa~d Surety, for value received, hereby stipulates and agrees that no change, extension of t~me, alteration or add~tzon to the terms of the contract, or to the work performed thereunder, or the Plans, Specifications, Drawings, etc , accompanyzng the same shall in any wise affect its oblzgatlon on th~s bond, and it does hereby waive notlce of any such change, extenslon of t~me, alteratzon or addition to the terms of the Contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, this instrument ~s executed zn triplicate, each one of which shall be deemed an ormglnal, th~s the ~ day of PRINCIPAL SURETY Pate Brothers Construction, Inc. Federal Insurance Company lls. Vfce-Frssidene ATTOR~N-Ey2IN-FACT Roy E. Sin ATTEST NOTE POWER OF ATTORNEY OF SURETY MUST BE ATTACHED DATE OF BOND MUST NOT BE PRIOR TO DATE OF CONTP~ACT DATE OF POWER OF ATTORNEY CERTIFICATION MUST NOT BE PRIOR TO DATE OF CONTRACTOR BOND PAGE TWO Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way 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. IN WITNESS 'WHEREOF, the said Principal and Surety have signed and sealed this instrument this ~ ~ day of ~ 19 98 . Pate Brothers Construction, Inc. Federal Insurance Company Principal Surety D lle. Vice-PresSmen= Roy E LSimmons, Attorney-ln-~'a Title Title Address: 780 W. Mansfield Hwy. Address: 19221 IH-45 South, Ste 550 . Ksnnedale, TX. 76060 Conroe, TX. 77385 (SEAL) (SEAL) The name and address of the Resident Agent of Surety is: Chubb Companies 1445 Ross Ave., Ste. 4200, Dallas, TX TX _25201 =- ....... AAA0184D Rev. 07/28/94 PB - 4 PAYM -NT BOND Bond #8155-24-96 or S COUNTY OF D~TON ~ KNOW ~t.r. MEN BY THESE PRESENTS: That P~te Brothers Construction, I ..... Of t--he City of Kennedale County cf Tarrant Texas , and the State of as principal, and Federal Insurance Company authorized under the laws of ~/~e State of Texas to act as surety on bonds for principals, are held and firmly bound unto ..Lennox Oak II, L P ~S~i~ 8undred & ~w~Dty-Two TbP~d, Four Hundre'd OWNER, in the penal sum of .~.v,ntaan uo±l~s and u~/Iuu............... Dollars ($ i~) for ?.he payment whereof, the said Principal and Surety bind themselves and their hears, administrators, executors, successors and assiqns, Jointly and severally, by these presents: WHE~.UAS, the Principal has entered into a certain written contract with the Owner, dated the ~ day of 19 98 . for utility construction at Oakmont II, Section 1 in Denton, TX to which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of work provided for in said contract, then this obligation shall be void, otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of the Texas Government Code, Chapter 2253 (Vernon, as currently amended), and all liabilities on this bond shall be determined in accordance with said provisions to the same extent as if they were cop%ed at length herein. PB - 3 POWER OF ATTORNEY FEDERAL INSURANCE COMPANY ATTN SURETY DEPARTMENT 15 Mountain View Road, Warren, NJ 07059 Telephone (908) 903-2000 Fax No (908) 903-3656 Know all Men by these Presents, That FEDERAL INSURANCE COMPANY, an Indmna Corporation, has constituted and appolnted, and does hereby constitute and appoint Roy E. Simmons, Scott D Chapman, Donna Heckmann Lee and E].a'rae Law-Is of Conroe, Texas ............................................... each ts true en~ awfulAttorney-ln Fact to execute under such designation in Its name and to affix its corporate seal to and deliver for and on its behalf as surety thereon or otherwise, bonds of any of the followmg classes, to wit I Bonds and Undertakings (other than Bail Bonds) flied in any suit, matter or proceeding in any Court, or filed with any Sheriff or Magistrate, for the doing or not doing of anything specified in such Bond or Undertaking 2 Surety bonds to the United States of America or any agency thereof, includmg those required or permitted under the laws or regulations relating to Customs or Internal Revenue, License end Permit Bonds or other indemnity bonds under the laws, ordinances or regulations of any State, City, Town, V~llage, Board or other body or organization, pubhc or private, bonds to Transportation Companies, Lost Instrument Bonds, Lease Bonds, Workers' Compensation Bonds, Miscellaneous Surety Bonds and bonds on behalf of Notaries Public, Sheriffs, Deputy Sheriffs and eim;lar public officials 3Bonds on behalf of contractors in connection with bids, proposals or contra~s n W tne~e Whereof the sa d FEDERAL INSURANCE COMPANY has, pursuant to its By-Laws, caused these presents to be signed by its Vice President and Assistant Secretary and Its corporete sss to be hereto afl xed th s 21st day of January 19 98 ;~ ~,, FEDERAL INSURANCE COMPANY lq ~ BY All~.,,~lnt 8eeretary ~.- , Vlee President ETATE OF NEW JEREEY '~, es County of Somerset J On this 21~I: day of January 1998 , before me personally came Kenneth C Wends1 to me known and by me known to beAaslstent Secretary of FEDERAL INSURANCE COMPANY, the corporation descnbed In and which executed the foregoing Power of Attorney, and the said Kenneth C Wendel being by me duly sworn, did depose and say that he is Assistant Secretary of FEDERAL INSURANCE COMPANY and knows the corporate seal thereof, that the seal affixed to the foregoing Power of Attorney la such corporate seal and wa~ thereto affixed by authority of the By-Laws of said Company, and that he s~gned said Power of Attorney es Assistant Secretary of said Company by like authority, and that he is acquainted with Frank Robertson end knows him to be the Vice President of said Company, and that the signature of smd Frank Robertaon eubasrlbed to said Power of Attorney is in the genuine handwriting of said Frank Robertson and was thereto subscribed by authority of said By-Laws and in deponent'a presence, Notarial Seal , ~,~ _ ;= ,. ,,., * ,~ .',~ ~ Acknowtsdged and Sworn to before me on/the date above wri~n IN THE EVENT YOU WISH TO NOTIFY UB OF A CLAIM, VERIFY THE AUTHENTICITY OF THIB BOND OR J NOTIFY U~OF ANY OTHER MATTER, PLEABE WRITE TO US AT THE ADDRESS LISTED ABOVE Fom~ 1~-10-0183(Sd 8,9~) eENERAL WENDIE P WAL-~H Notsry Public, Stats S! New Jersey No 0054.;04 C~mml,,slcn Exl~lres Al~rll 18, 1998 DATE (MMIDD/YY) A CORD 07. B BBB PNODUCER 71: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Alexander end Alexander of TeXBS, lAc ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ADA Risk Services ALTER THE COVERAGE AFFORDED BY THE POLICIES GELOW 2000 Bering Drive; Suite 900 COMPANIES AFFORDING COVERAGE COMPANY Houston TX 77057-3790 A TIG INSURANCE COMPANY INSURED Pats Brothers Construction COMPANY 780 W Mansfield HWY B Kannedsle TX 76060 PANY C COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSL~EO OR MAY PERTAIN, THE iNSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS POLICY EFFECTIVE POLICY EXPIRATION UMITS TYPE OF INSURANCE POLICY NUMBER DATE (MMIDD/YY) DATE {MM,'DD,'YY ) L L~UTY GL31374305 AGGREGATE * 2,000,000 PRODUCTS COMPIOP AGO :[ ~ 000 ~ 000 __lj CLAIMS MADE i..ir-~ oCCUR PERSONAL & ADV INJURY ~., 000,000 OWNER S & CONTRACTOR G PROT EACH OCCURRENCE FiRE DAMAGE (An 50 ~ 000 MED EXP {Any one AUTOMOBILE UAEILITY CA31374304 01/01/1998 O1/01/1999 COMBINED SINGLE UMIT ~., 000,000 ANY AUTO ALL OWNED AUTOS BODILY INJURY (Per person) SCHEDULED AUTOS HIRED AUTOS BODILY INJURY NON OWNED AUTOS PROPERTY DAMAGE AUTO ONLY EA ACCIDENT GARAGE LIABiLiTY R THAN AUTO ONLY ANY AUTO EACH ACCIDENT AGGREGATE XLB97524151 01/01/1998 01/01/1999 EACH OCCURNENCE * WORKER~ COMPENSATION AND 01/01/1998 01/01/1999 WC GTATU ADDITIONAL INSURED ON ALL POLICIES EXCEPT WORKERS' COMPENSATION AND WAIVER OF SUBROGATION IS PROVIDED IN FAVOR OF LENNOX OAK II, LP AND CiTY DENTON AS REQUIRED BY WRITTEN CONTRACT CHANGE COVERAGE AVAILABLE ONLY TO THE EXTENT OF THE POLICIES CANCELLATION CLAUSE INCLUDES NOTICE OF MATERIAL (I04)- LENOX OAK II, L P 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT 6116 CENTRAL EXPWY, SUITE 1313 =xu=.r lO DAYS NOTICE FOR NON PAYMENT DALLAS TX75206 DP ANY KIND UPON THE COMPANY ITSnAG S OR REPRESENTATIVES DATE {MMIDD/YY) ACO s THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Alexander and Alexander of Texas, Inc ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Aon Rink Services HOLDER THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW 2000 Bering Dr~ve, Suite 900 COMPANIES AFFORDING COVERAGE Houston TX 77057-3790 COMPANY A TIG INSURANCE COMPANY iNSURED Pate Brothers Construotlon COMPANY 780 W Mansfield HWY B Kennedela, TX 76060 COMPANY C COMPANY D ............ ' ...... ~ ~' *~'~' ..... THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD iNDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE ;MM/OD/YYI GL31374305 0110111998 01/01/1999 OENERAL ASGREUATE AUTOMOMLE MABILITY CA31374304 01/01/1998 01/01/1999 ~xcEs~ UAmUrY XLB97524151 01/01/1998 01/01/1999 EACH OCCURRENCE 10,000,000 WOENE~ COMPENRATION AND WCN80068059 01/01/1998 01/01/1999 X I~ORY UU~TS [ ADDITIONAL INSURED ON ALL POLICIE~ EXCEPT WORKERS' COMPENSATION AND WAIVER OF SUSROGATION IS PROVIDED IN FAVOR OF LENNOX OAK II LP AND CITY OF DENTON AS REQUIRED BY WRITTEN CONTRACT CANCELLATION CLAUSE INCLUDES NOTICE OF MATERIAL CHANGE COVERAGE AVAILABLE ONLY TO THE EXTENT OF THE POLICIES ,EXPIRATION DATE THEREOF THE ISSUING COMPANY WiLL ~CEa~.X~ MA~L (112). CITY OF DENTON 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT 215 E McKINNEY ax~,T 10 DAYS NOTICE FOR NON PAYMENT BUT F~ILORE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABIUTY DENTON, TX 76201 OF ANY KIND UPON THE COMPANY ITS ~GENTS OR REPRESENTATIVES 'CPCU r~t~~~~~~~''~ ~ ~ PHILIP D RHODES,' J~ THE AMERICAN INSTITUTE OF ARCHITECTS Oakmont II - Section I DENTON, TEXAS UTILITY CONTRACT 98002 Aid Document A 10 7 Abbreviated Form of Agreement Between Owner and Contractor For CONSTRUCTION PROJECTS OF I2M1TED SCOPE where the Basts of Payment ts a STIPUIMIED SUM 1987 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES, CONSULTATION WITH AN ATTORNEY IS ENCOURAGED V/ITH RESPECT TO ITS COMPLETION OR MODIFICATION Tlus document includes abbreviated C. eneral Conihtions and should not be used with other general conditions It ~ been approwd and eadorsed by Tho Asso~ated General Contractors of Amenca AGREEMENT made as ofthe ~.-~ . dayof ~"/ ,n the year ofNmeteen Hundred and Ninety-Eight BE'I3NEEN the Owner I,gNNOX OAK IL L.P. (Name and address) 6116 CENTRAL EXPWY. SlJITE 1313 DALLA$. TEXAS 75206 (214) 6969933 and the Contractor PATE BROTm~.R$ CONSTRUCTION, INC. (Nama and addrsss} 780 W~ST MANSFIELD HIOHWAY KIR4NEDALF~ TEXAS 76060 (SIT) 483-0~99 The Project ~s OAKMONT II, SECTION I (Name and kn:at~on) DENTON, TEXAS The Engineer ~s USA PROFESSIONAL SERVICES GROUP, INC (Name and address} 8700 ~awarnona ~. ~ 400 ~ T~as 75247 (214) 54-3300 The Owner and Contractor agree as set forth below Coplrashl 1935. 1951. 1958. 1961. 1963. 1966. 1974. 1978. © 1987 by the Amcncan Institute of~ 1735 New York Avenue, N W. W,*b.-$~. D C. 20006 Reproduction of the malenal hcr~n cr subataniial quotmon at' ~ provaac~s vaihout wnt~n p~mi~,e~l ofth~ AIA vlola~s th~ copynsht laws oflh~ Unit~l States and will bo subj~X to legal prosecamol~ ARTICLE t THE WORK OF THIS CONTRACT I t Thc Contractor shall execute the enarc Work ~scnbed m the Contract Documeats, for complete installatton of water, santtary sewer and storm sewer facilities on the Stte, together with all related improvements and facihttes, all as described in the Contract Documents to the Ctty of Denton Standards and Spectficattons The Stte shall mean the real propeny described on Exhtblt A attached to this agreement ARTICLE 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 2.1 The date of Commencanll~ is the date from which the Contract Ttme of Paragraph 2 2 ts measured, and shn!! be the date of flus Agreement, as first wntlen above, unless a chfferant date is stated below or provmon ts made for the date to be fixed m a notice to proceed ~ssued by the Owner ~n~rt th~ dam of ~ornm~n~r~n& ~f # ~r~ from tl~ dat~ af th~ /~n~n~nt or ~f a~abl~ ~at~ tl~t the dat# 2 2 The Contractor shall achieve Sub~antmI Completion of the enare Work not later than , subject to adjustments of flus Contract Tune as provu/ed m thc Contract Documents (]tt~r t provl~/or~./f ar~, for/tqu/dated det~u~#t r~/odng tofldhtm to ~ontp/~M on th#~) (See Exhtbtt E, Item 14.$.2) ARTICLE 3 CONTRACT SUM 31 The Owner sh~ll pay the Contracter m ctLrrent funds for the Contractor's performance of the Contract the Contract Sum of Six Hundred Twenty Two Thousand Four Hundred SeventeenDo~ars ($622,417. 06 ), subject to additions and deductions as proveded m the Contract Documents, -n-~ A.v~mc~,l ~S~TU'm o~,.uK:Hrrzcrs, i~s tc~w ¥O~.A'VSm~ ~¢ W. wns'rmcmo~¢, n c ~4i A107-1987 2 3.~ Th~ Contract Sum ~s based upon the follovnng al~rna~es, ff any, which are d~scnbed m ~e Con~ Do~n~ and ~ ~ ~d by ~ ~ N/A 3 3 Umt prices, Lf any, ar~ as follows See attached Exhibit B The Contract Sum has been determmed as set forth on Exhibit B and ts subject to adjustment as theretn provide,t ARTICLE 4 PROORE88 PAYMENTS 4.¶ Based upon Apphcauona for Payment subuntted to the Engineer by the Contractor and Payment Recommendation letters issued by the Engmeer and approved by the Owner, the Owner shall m~e progress l~ymonts on account of the Contract Sum to the Contractor as provtded below and elsewhere m the Contract Documents The period covered by each At~hcatton for Payment shall be one calendar month ending on the last day of the month, or as follows 4 1 See Addendum (F~thibit "E") 4.2 and 4 3 See Addendum (Exhtbtt "E") /~I~TICLE 6 FINAL PAYMENT 6. t Final payment, constituting the entrre unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor thirty (30) days after the Work has been fully completed, the Contract fully performed, and a final Payment Recommendation letter Ins been rssued by the Engineer 5.1 1, 52, 5.3 and $.4 See Addendum (Exhibit "E''') bRTICLE 6 ENUMERATION OF CONTRACT DOCUMENTS 6 '1 The Contract Documents a~ hsted m A~Uclc 7 and, except for Mod~caUons tssued after execuUon of flus Agr~mcnt, are enumerated as follows 6 q q The Agreement ~ flus executed Abbre~ated Form of Agreement Between Owner and Contractor, AIA Do~!m~n.t Al07, 1987 Echuon 6 ~1 2 The Supplementary and other Concht]ons of the Contract are those contained m the ProJect ~ dated , are as follows Document Title Pages $.1 4. TIi~ Drawlll~ ~ ue follnw~ und ~ d~t~d, unless a d~orent date ~s show~0w (~ th~r ~t th~ Dr asdngs here or r~br to an ~:ldbit a~a~d to thf* dSreeme n~ ) Number T~tle Bate See attached ExhiMt C 6t/5 The^,~d,~uda, ffany, are as £ollows Number Title Date Addenda ~ssued prior to execution of this Agreement, as described on Exhibit E and made part of th:s con~raet. Pomons of Addenda relating to b~_aa,n$ rgqmrements are not part o~ the Contract Documents unless the b~damg requm~ments are also enumerated m tlus Amcle 6 6t.6 Other d°cuments' ff anY' f°~mmg Pa"t °f the C°ntra~ D°cuments are as f°ll°ws (L~ any ado~onal d~umenu which are ~n~nded to fonn part ~th. Comra~t N/A GENERAL CONDITIONS ARTICLE ? Documents or persistently fads to carry out the Work m CONTRACT DOCUMENT8 accerdancc vath thc Contract Documents, the Owner, by a written order, may order the Contractor to stop the Work or any 7.1 The Contract Documents consist of tins Agreement portion thereof, unUl the cause for such order has been with Condtuons of the~ Contract (General, Supplementary and elLm~ted, however, the nght of the Owner to stop the Work other ConchUons), Drawings, SpecaficaUons, addenda issued shall not IFve nse to a duly on the part of the Owner to exercise prior to the execuUon of tins Agreement, other documents hsted tins nght for the benefit of the Contractor or any other person or in tins Agreement and ModtficaUons issued after execution of entity tins Agreement The intent of the Contract Documents ~s to include all ~mns necessary for thc proper execution and ARTICLE[ 9 completion of the Work by the Contractor The Contract CONTRACTOR Documents arc complementary, and what ~s required by one shall be as bmchng as,ff required by all, pefferm~.ce by the 9 1 The Contractor shall supervuse and direct the Work, ContracWr shall be reqlured only to the extent consistent with nsmg the ]tig/~est slall and attention The Contractor shall be the Contract Documents and reasonably referable from them as solely responsuble for and have control over construction means, being necessary to produce the intended results methods, techmques, sequences and procedmes and for coordinating all pomons of the Work under the Contract, unless ? 2 The Contract Documents shall not be construed to Contract Doc~_,m~.ts gn, e cthe~ specific matmcl~ons concermng create a contractual relationship of any land (1) between the these matters ./i~t~//~eer and Contractor, (2) between the Owner and Subcontractor or Sub-subcontractor or (3) between any persons 9 2 Unless otherwise provided m the Contract Documents, or enU~es other then the Owner snd Contractor the Contractor sh~!! provide and pay for labor, materufls, equipment, tools, construction cqmpment and maclunery, water, ? $ Execution of the Contract by the Contractor ~s a heat, utlhties, traml~rtalton, and other faahties and senaces representation that the Contractor has vmtsd the stte and necessary for the proper execution and completion of the Work become ¢~rmh~t with the local conditions ~na~? winch the Work whether temporary or permanent and whether or not ~s to be performed, incorporated or to be mcorporau~d m the Work. ? ~ The term "Work" means the construction and se~aces 9 3 The Contractor shall enforce strict discupbn~ and good recltured by the Contract Documents, whether completed or order among thc Contractor's employees and other persons pamally completed, and includes all other labor, materials, carrying out the Contract. The Contractor sh~l! not penmt eqmpment and services provided or to be provided by the employment of unfit persons or persons not skilled m Contractor to fulfill the Contractor's obhgetions The Work asmgned to them may consutnte the whole or a pan of the Project 9 4 Thc Contractor warrants to the Owner and El~tteer ARTICLE 8 thai matsnals and exlmpment furnished under the ConWact vail OWNER be of Contract specified quahly and new unless otherwise reqtu~d or pamntted by the Contract Docoments, th~ the Work 8 '1 The Owner shall furmsh surveys and legal description vaU be free from de/ects not inherent m the ~h~ requu'ed or of thes~te perantted, and that the Work vall conform with thc requirements of the Contract Documents Work not conforming 8,2 Except for pernuts and fees winch are the respons~hhty to these requn'ements, mcludmE substitutions not properly of the Contractor under the Contract Documents, the O~ner approved and authorized, may be conmdered defectne Thc shall secure and pay for necessary approvals, easements, Contractor shall furmsh san~r~ctory cvidonco as to thc land and assessments and charges reqmred for the construction, use or quahty of matsnals and eqmpment. occupancy of permanent structures or permanent ch~n_Ses m existing faahties 9. ~l. 1, 9.4 2~ 9. 4l $ ired 9, ¥. ~ See Addendum 8 3 If the Contractor fails to t/me[.F correct Work winch is "/i;'~ not un accera~.~ with the requn'ements of the Contract 9.12 2 The obhgauons of the Contrac~r under thru Paragraph 9.5 Unless othermse prov~ed In the Contract Documents, 9 12 shall not exceed to the lmbthty of the Engineer, the the Contractor sh~!! pay sales, consumer, ase, and other s~m~!ar Engineer's consultants, and agents and employees of any of taxes winch are le~l!y enacted when bids are received or them arising sole~ out of (1) the preparaUon or approval of nego~at~ons concluded, whether or not yet effec~ve or merely scheduled to go into effect, and shall secure and pay for the maps, dravnngs, opunons, reports, surveys, Change Orders, bmldmg pe~mt and other pernuts and governmental fees, ConstrucUon Change DlrecUves, des~gas or spec~iicaUons, or (2) hceuscs and mspact~o~s necessary for proper execution and the giving of or the fadure to give thre~om by the Engineer, compleuon of Work thc Engineer's consultants, and agents and employees of any of them prowded such giving or failure to give is the prunary 9 6 The Contractor shall comply w~th and give anUces cause of the injury or damage reqmred by laws, erdumncos, roles, regelaUons, and lawful orders ofpabhcanthonUesbearmgunparformo,ce of the Work 9 12 3 See Addendum (ExhibU "E") The Contractor shall promptly notify the Engineer and Owner ff the Dravangs and SpecfficaUous are to be at varumco ARTiCLE~ lq therewith ADMiNISTRATiON OF THE CONTRACT 9.7 The Conwactor ~han he respens~ble to the Owner for 10 t The Engineer v~ll prowde adunmstmuon of thc the acts and onuss~0ns of the Contractor's employees, Contract in accordance ~th the Contract Document~ SubconU'-actors and their agents and employees, and other persons perfomung pemoos of the Work under the Contract or t02 Thc En~neer vall ws~t thc ate at intervals any contract w~th the Contractor appropriate to the stage of constru~on to become generally fanullar w~th the progress and quality of the completed Work 98 The Contractor shall rewew, approve and submit to the and to determine m general ffthc Work is being performed m a Engineer Shop Drawings, Product Data, Samples and ~m!lar manner ind~caUng that the Work, when completed, wdl be m subnuttals requu~d by the Contract Documents vnth reasonable accordance vath the Contract Documents However, the promptness The Work shall he m accordance w~th ~wproved Engineer wffl not he required to m~g exheast~ve or subrmt~als When professional comflcat~on of peffui-umcc continuous on-ate mspa~ons to check quality or quon,ty of the cfltena of matermls, systems or eqmpmen~ is r~lun'ed by the Contract Document, the Engineer shal~ be enutled to rely Work On the hems of on-s~to observat~oas ~ an En~neer, upon the accuracy and completenesa of such cemflcauons the Engineer ~ keep the Owner reformed of progress of the Work and will endeavor to guard the Owner against defeets and 99 The Con~ractor shall keep the prenuses and deflc~cncucs m the Work surronndmg area ~c f/om accumnla~on of waste ma~erinls or rub~sh caused by oparaUons under the Contract At compleUon 10.3 The En~neer will not have control over or charge of of the Work the Con~tor sb~!l remove from m~i aheu~ the and vall not be responsfole for congu-~acUon means, methods, Prqlect was/e materials, rubbish, the Contractor's tools, techmques, scquances or procedures, or for safety precanuons constmcUon eqmpment, machinery and surplus materials and programs m cunnecUon w~th the Work, since these are solely the Contractor's respanmTothty as provided m Paragraphs ~ t0 The Con[factor shall provide the Owner and 91 and 161 The F, ngmeer wdl not be responm~ole for the El~gil~eer access to the Work m preparation and progress Contractor's failure to carry out the Work m accordanco w~th wherever located, the Contract Documents 9.~1 The Contractor sbo!! pay all royalUes and heense fees, t0.4 B~ed on the Engineer's observaUons and shellde, fendsu~rzordmmsformfrmgementofpatentngl~and evalusuoas of the progress of the ~ork and the shall hold the Owner harmless from loss on account thereof, but Contractor's Apphcauous for Payment, the Engineer w~ll shall not be responsible for such d~ense or loss when a r~aew and after consultation with O~ner recommend pamcular design, process or product of a pamcular ms,~rfacturer or manufacto~ ~s required by the Contract the amounts due the Conu'actor and ~ issue Payment Documents unless the Contractor Imo~s that there is er w~ll Recommendation Letters m such amounts be an uffrmgemont of patent 10 ~ The Engineer vail interpret and dec~de matters 9.12 & 9.12.1 See Addendum (Exhibit "E") concerning performance under and reqmrements of the Con~'act Documents on written request of either the Owner or Contractor The Engineer vail make ~mtml dectstons on all claims, 12.1 1 See Addendum ff_.xhtbtt "E") alsputes or other matters tn questions between the Owner and Contractor, but will not be hable for results of any Iii The Contractor shall afford the Owner and separate mterpretaUons or decisions rendered in good fiuth The contractors reasonable opportumty for the mtrnducUon and Engineer decisions m mattes relating to aesthetic e~ect vnll storage of their materials and eqmpment and performance of be final tf consistent wlth the intent ~xpressed m tho Contract tbetr a~twUes, and shall connect and coordinate the Contractor's consmzcUon and ogerat~ons vath theirs Documents All oth~r deaslons of the Engineer except those wtuch have been wmved by m~lcing or acceptance of final payment, shall be subject to arb~trataon upon the wntten demand 1~'$ Subject to Article 143 hereof, costs caased by delays, unproperly t~med actnatms or dofecUve censtructton of either party shall be borne by the party responsible thereof 105 Nee Addendum (Exhibit "E" ARTICLE la q O 6 The Engtneer vail have anthonty to reject Work CHANGES IN THE WORK wluch does not conform to the Contract Doaunents 151 The Owner, vathout mvahdatang the Contract, may 107 The Engineer vnll rex~ew and approve attd[/or take order changes m the Work censist~ng of nddattans, delet~ens or other alyPrelmate acUon upon the Contractor's subndttals such mnddicatrons, the Contract Sum and Contract Tune being as Shop Drawings, Product Data and Samples, but only for the adjusted aecorchngly Such changes m the Work shall be lmuted purpose of checking for conformsnce w~th mformaUon authorized by written Change Order signed by the Owner, given and the design concept expressed in the Cenwact Contractor and Engineer, or by wntten Construction Change Documents Directive s~gned by the Owner and Engtneer ARTICLE t 1 132 The Contract Sum and Contract Tune shall be changed SUBCONTRACT8 only by Change Order q'l I A Subcontractor is a person or enUty who has a &rect contract vath the Contractor to perform a pomon of the Work at 1 $ 3 The cost or oredtt to the Owner from a change m the the site Work shall be determined only by written agreement ARTICLE q4 112 Unless otherwise stated ua the Contract Documents or TIME the b~ddmg requn'ements, the Contractor, as soon as pract~ceble after award of the Contract. shall furmsh m writing to the '141 Tuneinmts statedmthe Contract Dooun~aats are ofthe Owner through the Engineer the tames of the Subcomractors essence of the Contract By executing thc Agreement the for each of the principal poraons of the Work The Contractor Contractor confirms that the Contract Tune is a reasonable shall not contract vnth any Subcontractor. except those I~ened for perforunngtha Work ~denttfied m writing by Contractor to Owner Contracts between tho Contractor and Subcontractors shall 14.2 The date of SubstanUal Completton zs the date reqan~ each Subcontractor, to tl~ extent of the Work to be recommended by the Engineer and approved by the performed by the Subc0nffiwtor, to be herald to the Contract by Owner m accorcl~nce vnth Paragraph 153 the terms of the Conlract Documems, and to assume toward tho Con/factor all the obhgatlons and responsfoiht~s winch the 14 $ If the Contractor is delayed at any time m progress of Contractor, by the Contract Docomeats, assumes toward the the Work by cbpnSes ordered in the Work, by labor d~sputes, Owner fire, unusual delay m dehvenes, abnormal adverse weather condluons not reasonably ant~c~patable, unavoidable casualues ~RTICLE t2 CONSTRUCTION BY OWNER OR or any causes beyond the Contractor's control andfanlt, or by BY SEPARATE CONTRACTORS other causes which the Engineer deternunes may just~ delay, then the Contract Tune ~h~l! be extended by change Order for t21 The Owner reserves the right to perform construcUon such reasonable tune mutually agreed upon by tke or operauon~ related to the Project vnth the Owner's own forces, Owner, Engineer and Contractor and to award separate contracts m counec~aon vnth other porUons of the Project or other construcUon or operations on the s~te The Contractor shall take ail precauUons for safety of; and shall 14.2, 143, 14.4, 14.5.2, 14.$.3, 14.$ 4 See prowde necessary protecuon to prevent damage, mju-~ or loss Addendum (Exhibit "E") to I employees on the Work and other persons who may be ARTICLE q8 2 the Work and matenuls and equipment to be PAYMENT8 AND COMPLETION incorporated therein, and 3 other persons and/or property at the site or adjacent 18 q Payments shall, be made as provided m Article 4 and 5 thereto of *h~n Agreement. The Contractor shall give noUces and comply vath apphcable 16.2 Payments may be vnthheld on account of (i) defective laws, orthnances, lilies, regUlatiOns and lawful orders of pub[lc Work not remeihed, (2) ¢laans filed by third partiss, (3) failure anthonties bearing on safety of persons and property and the~ of the Conlractor to make payments properly lo Subeontrectors protection from damage, mjmy or loss The Contractor shall or for labor, materials ,or equipment, (4) reasonable evidence promptly remedy damage and loss to property at the site caused that the Work cannot be completed for the unpaid balance of the m whole or m pa.q by the Contractor, a Subcontractor, a Sub- Contract Sum, (5) damage to the Owner or another contrac~r, subcontractor, or anyone directly or mdu'cctly employed by any (6) reasonable emdeaco that the Work vail not be completed of them, or by anyone for whose acts they may be liable and for vnthm the Contract Tune and that tho unpmd balance would not which the Contractor is responsible under Subperagraphs 1612 be adequate to cover actual or [lqmdetod r!~mages for the and 1613, except for damage or loss attnbutable to acts or anuopated delay, or (7) fallura to can'y out the Work m onussmns of the Owner or Engineer or by anyone for whose accordance w~th the Contract Documents acts eatker of them may be liable, and not attributable to the fault or negligence of the Contractor The foregoing obhgauons of t6 $ When the Engineer agrees that the Work ~s the Contractor are m addmon to the Container's obhgations sub~_~nn~lly complete, the Engineer .nil ~ssna a letter of under Paragraph 912, unless otkerwise agreed to in Substanual Completion writing 15.3 See Addendum (F~chibtt "E") 1 a 2 The Contractor shall not be requu'ed to perform w~thout consent any Work relating to asbestos or polychlormated t64 Final payment shall not become due until the hiphenyl(PCB) Contractor has delivered to the Owner a complete release of all hens arising out of tiaa Contract or receipts m full covering all ARTICLE 17 labor, matenals and equipment for which a hen could be filed, INSURANCE against such hen If such lien mmmns unssUsfied lffier t7.1 The Contractor shall purchase from and maintain m a payments are m_~de~ tho Contractor sh~!! refund to thc Owner all company or companies lawfully anthonzed to de basmess m the money that thc Owner may be compelled to pay m d~scharging junschcUon m which the ProJect is located, insurance for such heat, including all costs and masouablo attorneys' files protection fi, om clmms under workers or workraen's compensaUon acts and other employee benefit acts which are t68 The makmg of final payment shall constituto a waiver apphcable, clanns for damages because of bodily inJury, of claims by the Owner, unless otherwise agreed to in mcladmg death, and from cl,,mn for damages other tb~n to the Work ~tseff, to property which may amc out of or result fxom writing the Contractor's operauons under the Coulract, whether such Acceptance of 6hal payment by the Contractor, a Subcontractor operations be by the Contractor or by a Subcontractor or any one or material suppher Sh.8!! consUtuto a waiver of Cle~ms by that directly or indirectly employed by any of them Tills insurance shall be written for not less than bruits of habtlity specified m payee ~xcept those pm~ously made m writing and ldant~fied by that payee as unsettled at the mae of final Al~ahcattou for th~ Contract Documents or requlredby law, whichever coverage is greater, and shall mclade contmctaal habihty insurance paymenL unless oth~n~se agreed to in wnting, apphcable to the Contractor's ob[lgalaons under Paragraph 912 Certificates of such insurance shall be with the Owner prior to the commencement of the Work. ARTICLE t6 PROT[CTION OF PERSON8 AND PROPERTY 172 The Owner shall be rasponm3le for parehasrag and mnmtamrag the Owller's nsllal habthty insurance Optlollally, 161 The Contractor shall be respous~ble for uuUaUng, mamtmnmg, and supervising all safety precautions and programs m connection with the performanee of the ConU'act. ARTICLE 21 OTHER CONDITIONS OR PROVISIONS 2l :~ So long as Owner as not m def~u]t under the Contract, Contractor sha/[ not voluntardy perr~t any laborer's, matenalmen's, mechamc's or other sun[tar hen to be filed or otber~use tmposed on any part of the Work or the property on wtuch the Work is performed If any laborer's, matenalmen's, mechamc's or other smnlar hen or clam thereof as filed and ff Contractor does not cause such hen to be released and chscharged forthvath, or file a bond m heu thereof, Owner shall have the right to pay all sums necessary to obtain such release and d~scharge and deduct ail amounts so pad from the Contract Sum, or deduct same from the next succeeding Apphcatlon for Payment until the total amount of same shall be recouped as Owner may elect Contractor shall mdcnmufy and hold Owner harmless from all clams, losses, demands, causes of actaon or stats of whatever nature arising out of any such hen or that part of the Work covered thereby 21 3 The Contract Documents consatute the entu"e agreement between the partaes hereto wtth respect to the matters covered thereby All prior negot~atmns, representatmns and agreements vath respect thereto not incorporated mn the Contract Documents are hereby superseded Ttus Agreement can be modified or amended only by a document duly executed by the pames hereto 21 4 Contractor shall not assasn all or any part of fins Agreement or any momes due or to become due hereunder wathout the prior written consent of Owner Owner may, vathout the consent of Contractor, assagn flus Agreement to any other party or entaty, provided Owner continues to be responsible for the performance of such assagnee of Owner's obhgat~ons hereunder SubJect to the foregoing, tias Agreement shall insure to the benefit of and be binding upon the parties hereto and thew respectave successors and assagns 21 5 Tlus Agreement shall be governed by and construed under the laws of the State of Texas 21 6 See Exiubats A, B, C, D, E, I~, G and H attached hereto and incorporated hereto by reference 21 7 See Addendum (Extnbat"E") 21 8 See Addendum (Exhtbat "E') Tins Agreement entered into as of the day and year first written above LENNOX O~ II, L.P. PATE BROTHERS CONSTRUCTION Lloyd D Slavlock. pr?.~ae~t ~s~[~sballe. V~ce.Pre~e.t (Prfnted nam$ and tltla) (Prfnted nama and EXHIBIT FIELD NOTES OF SITE BEING a~tract or parcel of land s~tuatad m the Stephen Hembne Survey, Abstract Number 643, ~n the C~ty of Denton, Denton County, Texas, and being part of that tract of land conveyed to Lennox Oaks II, L P by Deed recorded in the Real Property Records of Denton County, Texas, Denton County Clerk's File Number , and being more particularly described as follows BEGINNING at a one-half inch ~ren rod found for the Northwest comer of sa~d Lennox Oaks tract, said comer being on the South line of a tract called 100 acre tract conveyed to the State of Texas for Denton State School at Denton, Texas by Deed recorded m Volume 43,5, Page 0012, Real Property Records of Denton County, Texas, THENCE North 87°01'55" East along the North line of said Lennox Oaks tract and along the South line of said Denton State School tract, a distance of 470 00 feet to a one-half inch iron rod with cap marked "USA INC, RPLS 2026' set for comer, hereinafter called one-half inch Iron rod set, said iron rod being the beginning of a non-tangent curve to the left having a central angle of 14°58'01 a radius of 1780 00 feet, and a chord bearing and distance of South 25°29'28. West, 463 86 feet, THENCE In a Southwesterly direction departing the North line of said Lennox Oaks tract and the South line of Denton State School tract and along said non-tangent curve to the left, an arc length of 464 98 feet to a one-half Inch Iron rod set for comer;, THENCE South 86°33'17' East a distance of 689 11 feet to a one-half tach iron rod set for comer;, THENCE North 74°18'00' East a distance of 125 69 feet to a one-half tach ~ron rod set for comer, THENCE South 15°44'00~ East a distance of 10~ 50 feet to a one-half inch Iron rod set for comer;, THENCE North 74°16'00· East a distance of 50 00 feet to a one-half inch iron rod set for comer;, THENCE South 15°44'00" East a distance of 5 02 feet to a one-half tach iron rod set for comer;, THENCE North 74°16'00' East a d~stance of 117 00 feet to a one-hatf tach Iron rod set for comer;, THENCE South 15°44'00' East a distance of 360 00 feet to a one-half inch ~ron rod set for comer, THENCE South 74°16'00' West a distance of 117 00 feet to a one-half tach ~ron rod set for comer;, THENCE South 15°44'00· East a distance of 304 36 feet to a one-half ~nch ~ron rod set for corner, THENCE South 74016'00' West a d~stance of 50 00 feet to a one-half tach ~ron rod set for comer;, THENCE South 15°44'00" East a d~stance of 37 54 feet to a one-half tach ~ron red set for comer at the beginning of a curve to the left having a central angle of 16°46'36", a radius of 275 O0 feet, and a chord bearing and distance of South 24°07'18° East, 50 23 feet, THENCE In a Southeasterly direction along said curve to the left, an arc length of 80 52 feet to a one-half Inch iron rod set for comer;, THENCE South 57°29'24" West a distance of 55 19 feet to a one-half ~nch iron rod sst for comer, THENCE South 19°10'14' East a distance of 130 89 feet to a one-half tach ~ron rod set for corner;, EXHIBIT "A" 8 81 E Page 1 of 2 EXHIBIT "B" CONTRACT SUM WATER DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL 12" Water Main w/Embedment 3082 L F $17 70 $54,197 40 6" Water Main w/Embedment 4129 L F $11 38 $46,988 02 12" Valve 8 Ea $92215 $7,37720 6" Valve 20 Ea $422 42 $8,448 40 2" Eclipse,Blow off Hydrant 3 Ea $916 39 $2,749 17 Cast Iron Fittings 4 Ton $1,127 67 $4,510 68 Concrete Blocking 13 3 C Y $67 88 $899 88 1" Water Service 118 Ea $35390 $41,05240 2" Water Service I Ea $639 33 $839 33 Fire Hydrant 8 Ea $1,115 18 $8,921 44 Connect tO Existing Main 1 Ea $338 30 $338 30 Remove & Replace HMAC 45 S Y $30 45 $1,370 25 Testing 7,191 L F $0 63 $4,530 33 WATER TOTAL $t 82,022 80 SANITARY SEWER DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL 8" Sewer Main w/Embedment 5,444 L F $15 83 $88,178 52 Std 4 0' Diameter Manhole 14 Ea $1,291 18 $18,078 52 Std 4 0' Diameter Drop Manhole 3 Ea $1,837 21 $5,511 63 Cleanout 3 Ea $153 44 $460 32 4" Sewer Service 116 Ea $177 00 $20,532 00 8" Cap 4 Ea $34 96 $139 84 Trench Safety 6499 L F $1 13 $7,343 87 TV Inspection 5490 L F $0 84 $4,611 60 Testing 5490 L F $0 57 $3,129 30 Lift Station I L S $62,695 71 $62,895 71 Force Main 1,055 L F $11 77 $12,417 35 Manhole Over Existing 24' Main 1 Ea $1,001 37 $1,004 37 Force Maln Testing 1~055 L F $0 33 $348 15 SANITARY SEWER TOTAL $222,446 18 STORM 8EWER' DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL 8'x6' Box Culvert 125 L F $193 05 $24,131 25 66" Class,Ill R C P 431 L F $147 79 63,696 05 42" Class III R C P 284 L F $57 17 $16,236 28 42~ Class III R C P 103 L F $72 80 $7,498 40 36' Class, Ill R C P 225 L F $43 90 $9,878 00 30" Class IV R C P 223 L F $38 74 $8,639 52 30" Class III R C P 378 L F $34 80 $13,155 24 27' Class I11 R C P 205 L F $31 63 $6,484 61 24" Class iV R C P 86 L F $32 08 $2,759 07 24" Class III R C P 151 L F $28 72 $4,337 06 EXHIBIT "B" - CONTRACT SUM Page 1 of 2 STORM 8EWER (cont.) 21" Class III R C P 32 L F $26 70 $854 47 18" Class III R C P 334 L F $23 69 $7,913 20 7'D~a Manhole 1 Ea $4,418 19 $4,418 19 5' Dm Manhole 1 Ea $2,320 74 $2,320 74 4' Dis Manhole 2 Ea $1,483 71 $2,927 42 Junction Box 1 Ea $12,439 56 $12,439 56 20' Curb Inlet 2 Ea $2,385 98 $4,711 96 10' Curb Inlet 2 Ea $1,577 89 $3,155 78 8' Curb Inlet 12 Ea $1,399 72 $16,798 64 Wye Connection 10 Ea $28 20 $282 00 27" Cap I Ea $140 96 $140 96 8'x3' Type 'B" Headwall 1 Ea $4,115 47 $4,115 47 Rock R~p Rap 64 S Y $55 03 $3,521 92 Grade to Drain 320 L F $14 67 $4,694 40 Remove Existing Headwall t Ea $338 30 $338.:~0 STORM 8EWER TOTAL $2.17,9483)9 SUMMARY: WATER TOTAL $t82,0223)0 SANITARY 8EWER TOTAL $222,446.18 8TERM SEWER TOTAL $2t 7~9483)9 $622,417 07 All ~tems to be constructed per the City of Denton Standards and Spec~catlons Items to Include all means of construction required for proper installation (complete ~n place), including but not I;mlted to labor, superv;s~on, equipment tools, materials, backfill compaction, final cleanup, and acceptance Traffic control to be prowded and ma~nte~ned by Contractor throughout construcbon at Contractor's expense It shall be the Contractor's responsibility to restore street ground elevations to w]thm one tenth of a foot to that ex~sbng at the time the Project was released for ut;l~ty construcbon Payment for this surface restoration shall be subs;d;ary to the price b~d for the various ~tems throughout the project No separate payment w~ll be made. It ~s acknowledged and agreed that the actual amount of Work to be performed and materials to be furnished under this Agreement may vary from the foregoing estimates Payment shall be for the actual amount of such Work done and materials furnished at the unit prices shown above. The actual measured or computed length, area, solid contents, number and weight only shall be used to determine quant~bes for final payments, no extra or customary measurements may be used, Any adjustment to the Contract Sum set forth ~n Article 3 by reason of any variance in quantity of Work performed or material furnished shall be made only by Change Order EXRIR1T "C" SHEET INDEX 1 COVER SHEET 2 FINAL PLAT (SHEET 1 OF 2) 3 FINAL PLAT (SHEET 2 OF 2) 4 WATER & SANITARY SEWER PLAN 5 SANITARY SEWER PROFILES - LINES "S-1", ~S-2~ & "S-3" 6 SANITARY 8EWER PROFILES - LINES "S-4', "S-6" & "S-7" 7 SANITARY SEWER PROFILES - LINES "S-5", "S-8", "S-9", "S-10", "S-11" & ~S-12" 8 WATER PROFILE - LINE uW-1' 9 UTILITY PROFILES- LINE "W-I" & FORCE MAIN 10 LIFT STATION SITE PLAN & DETAILS 11 DRAINAGE AREA MAP 12 STORM SEWER PLAN AND PROFILE - LINE ~D-I" 13 STORM SEWER PLAN AND PROFILE - LINES "D-I" & ~D-6" 14 STORM SEWER PLAN AND PROFILE - LINES "D-2", "D-3", "D-4" & "D-5" 15 PAVING PLAN AND PROFILE - Harvard Dnve 16 PAVING PLAN AND PROFILE- St John's Dr~ve 17 PAVING PLAN AND PROFILE- Vlllanova Dr~ve 18 PAVING PLAN AND PROFILE- Marquette 19 PAVING PLAN AND PROFILE- Stanford Dnve 20 PAVING PLAN AND PROFILE - Centenary Drive 21 PAVING PLAN AND PROFILE- Robtnson Road 22 LOT GRADING PLAN 23 LOT GRADING PLAN 24 LOT GRADING PLAN 25 LOT GRADING PLAN 26 STORMWATER POLLUTION PREVENTION PLAN 27 STORMWATER POLLUTION PREVENTION PLAN 28 CITY DETAILS - WATER DISTRIBUTION SYSTEM DETAILS 29 CITY DETAILS - SANITARY SEWER DETAILS 30 CITY DETAILS - STORM SEWER DETAILS 31 CITY DETAILS - STORM SEWER DETAILS 32 CITY DETAILS - STANDARD CONCRETE PAVING DETAILS 33 CITY DETAILS - STANDARD ASPHALT PAVING DETAILS 34 CITY DETAILS - STANDARD ASPHALT PAVING DETAILS D RAWIN GS--A]qDSPECIFICATIO N S Page 1 of 1 3 All insurance coverage reqmred as hereto set forth shall be at the sole cost and expense of Contractor and ~ts subcontractors and supphers, and all deductibles shall be assumed by, for the account of, and at the sole risk of smd Contractor and ~ts subcontractors and supphers 4 Excej>t where proinb~ted by law, all insurance pohmes shall contain provtsmns that the insurance eompames waive the rights of recovery or subrogation against Owner, tts agents, servants, ray,tees, employees, co- lessees, co-venturers, ~t~lhated eompames and their insurers 5 All insurance pohc~es shall be endorsed to prowde that ~t may not be cancelled or modified except upon thrty (30) days pnor written nonce to Owner 6 All insurance pohc~es shall be w~th such insurance compames as are sansfactory and acceptable to Owner Contractor shall dehver to Owner for ~ts inspection all insurance pohcues reqmred hereunder or such other evadence of comphanee wath the foragomg insurance requtrements as as satasfacto~ and acceptable to Owner 7 Contractor shall mamt~un or cause to be maintained all insurance required by tins Exinb~t m full force and effect dunng the enttre term of tins A~reement and for a penod of five (5) years following Compleuon Not later than thn-ty (30) days prior to the exp~ranon of any such pohcy of insurance, Contractor shall dehver to Owner ewdence sansfaetory to Owner that such pohcy has been renewed or replaced Page 2 of 2 EXHIBIT 'E" .A~ENDU~ TO ~B~~ FO~ O~ A~E~T BE~ O~R ~ CO~CTOR ~S ~DE~ to Abbr~ated Fo~ of A~e~ent Be~e~ ~er ~d Contractor ("A~ement") s~ men~ supplement, mod~, del~e ~d replace by submmt~on (0r ~here apphmble, be mseaed as) the md~ted proms~ons of~e ~eement ~erev~ the terns hereof ~e inconsistent ruth the ~eement, the terns hereof s~ be eon~o~g S~PLE~NT~Y ~S OF AG~E~NT 4 1 On the ~en~-~h (25~h) day of each month dung pe~o~ce of the work or ~e ~ weekday ~er ~e ~enW-fi~ Contractor sh~ sub~t to · e ~er, ~ou~ ~e En~eer for the~ approv~ ~ Apphcatmn for Pa~ent m fo~ ~d subst~ce sat~sfacto~ to ~e~ for the p~od on the ~en~-~h of each month Each Apphcat~on for Pa~ent sh~ be for a sum no~ ~eater ~ ~eW percent (90%) of that po~mn of the Con. act S~ properly ~ocable to labor, date of such Apphca~on for Pa~eng less ~e a~egate of pre~ous pa~ts ~de by 0~ W~n ~W-five (25) days ~er sub~ss~on of each Apphcauon for Pa~t, prodded no def~t by Contractor has occu~ed and ~s contm~g hereunder, ~ ~ m~epa~t to Con~a~or for such ~o~ts ~eof w~ch have been approved by ~e En~neer ~d 4 2 Each Apphcatmn for Pa~ent s~ com~ ~e fo~o~g ce~caUon by Con~a~or There ~e no ~om mee~e's or maten~en's hen el~s omg~dmg at ~e date of ~s Apphcat~on for Pa~ent ~d no eondmon or state of fa~s crests w~eh wo~d ~ve Con. actor re.on to beheve that ~y such el~ my be made ~ due ~d payable balls ~th mspe~ to ~e Work ~ve been prod to date or ~e included m the mo~t requested m the Apph~on of Pa~ent Except for such bffis not prod but m ~ehded, rec~pts ~d w~vers ~om ~1 Subconw~ors ~d maten~en for Work done ~d maten~s ~shed to the effective date of ~s Apphea~on for Advice have been obtmed m ~eh fora as to eons~mte ~ effe~lve wmver of hen under the laws of the State of Tex~ Contra~or sh~ promptly pay ~ bffis for labor ~d mten~s peffomed ~d ~shed by o~s m eomeeuon ruth the perforce of the Work Om~ may roquwe as a eon&t~on precedent to the m~g of ~y pa~ent h~eund~ that (0 Con. actor submt credence sat~sfacto~ to ~er tMt no unpmd el~s ernst for ~y labor, matm~s, semces or o~er obhgat~ons meu~ed by Contra~or, ~y Subcontractor or suppher m the perforate of Page 1 of 6 the Work hereunder and that no concht~on or fact exms wtueh would cause Contractor to beheve that any such clams be thereai~er asserted and (n) Contractor, its Subcontractors and supphers execute and deliver the Owner a general release and waver of hens m form acceptable to Owner 4 3 Owner may w~thhold from any amount meluded m any Apphcatlon for Payment (including the Final Apphcataon) amounts deemed ap.p_ropnate by Owner by reason of any of the following (0 written quaimc.at?n,s or exceptions of Engineer or Owner to any Apphcatlon for Paym .ent,.in) ciama,s of Subcontractors or payments for labor or materials made m the work, (m) Contractor's fatlure to ~0erform any obligation under this Agreement or under any other Contract Document, 0v) defective Work or (v) the mal~ng, assertion or threat of au.), clann, actton, suit, proceeding, expense, habthty, damage or injury for which Contractor may be hable under Section 9 12 of tl~s Agreement 5 1 1 In addttion to the not m derogation of the prows~ons of' Paragraph 15 3 hereto, the issuance of a Payment Recommendation letter shall constatute a recommendation to the Owner by Engineer w~th respect to the amounts to be pad to Contractor Such recommendation shall be non-binding on Owner, and Owner shall be entitled to refuse to make payment on any Payment Recommendatton letter ff Contractor is m default 5 2 Upon completton (hereinafter defined), Contractor shall subrrnt a final Apphcation for Payment ("Final Apphcatlon") which shall set forth all amounts due and rematmng unpaid to Contractor m respect of the Contract Sum Upon approval thereof by Owner and Engineer and satisfaction of all other condmons to final payment thereunder, prowded no default by Contractor has occurred and is continuing hereunder, Owner shall pay to Contractor the amount due under such Final Apphcatlon 5 3 Tho Final Apphcatlon shall not be payable untd (O thn'ty (30) days shall have expired after Completion, (a) the surety company or compames issuing labor and material payment bonds and performance bonds, if any, shall have consented to payment of the final apphcation (m) Contractor shall have dehvered to Owner a complete release of all hens arising out of this Agreement and the Work, together w~th an affidawt of Contractor that the release includes and covers all materials and servtces for which a hen could be filed, and 0v) Comractor shall have dehvered to Owner all warranties and guaranties wlmch are apphcable to any part of the Work 5 4 Completion shall mean the full and complete performance of all Work m accordance w~th the Contract Documents Completion shall not have occurred unttl the C~ty of Denton, Texas shall have accepted the Work m accordance wtth all laws, ordinances, rules, regulattons and lawful orders of any governmental authority having junsdimon over the Work or the Pro. lect shall have been satisfied 9 4 1 The warranty proxaded m Paragraph 9 4 shall be m addition to and not m lmutatton of any other warranty or remedy reqmred by law or by the Page 2 of 6 Contract Documents, and such warranty shall be interpreted to reqmre Contractor to replace defecuve materials and equipment and re-execute defective Work wbaeh is disclosed to the Contractor by the Owner w~thm a period of one (1) year at~er final eompletaon of the entire Work 9 4 2 The Contractor shall issue m writing to the Owner as a condition precedent to final payment a "General Warranty" refleetang the terms and conditions of ti'ns Paragraph 9 4 for all Work under the Contract Documents 9 4 3 Excep, t when a longer warranty time is specifically called for in the Specificatmn Seettons or as otherwise provided by law, the General Warranty shall be for twelve (12) months and shall be in form and content otherwtse satisfactory to Owner 9 4 4 Warrant~es shall become effectave on a date estabhshed by the Owner and Engineer m accordance wth the Contract Documents Tbas date shall be the date of Final Completmn of the enttre Work, unless otheranse prowded m any Certificate of Pa_mai Final Completaon approved by the part~es 9 12 To the fullest extent perrmtted by apphcable law, Contractor shall and does agree to mdemmfy, protect, defend and hold harmless the Owner, Owner's partners, affihated eompames of Owner and of any partner, Enga?er and thetr respective officers, ~hrectors, shareholders, employees ann agents (collectively the "Indemmttes") from and against all clatms, damages, losses, hens, causes of action, stuts, judgments and expenses, including attorney fees, of any nature, kind or description of any person or empty, d~rectly or indirectly arising out of, caused by, or resulting from (m whole or m part), (1) the work performed hereunder, or any part thereof, or (n) any act or ormsslon of Contractor, Any subcontractor of Contractor anyone dtrectly or mdtreetly employ, ed by them, or anyone that they control or exercise control over (collectively the "L~ablhtles") Contractor shall promptly advise Owner m writing of any actmn, adanmstrattve or legal proceeding or mvestlgataon as to wlunh flus mdemmfieat~on may apply, and Contractor, at Contractors expense, shall assume on behalf of Owner (and the other IndemmtleS) and conduct w~th due diligence and in good faith the defense thereof w~th counsel satisfactory to Owner, proxaded, however, that Owner shall have the nght, at ~ts option, to be represented thereto by advasory counsel of ~ts own sele~*aon and at its own expense In the event of failure by the Contractor to fully perform m accordance w~th flus mdemmfieatmn paragraph, Owner, at ~ts option, and w~thout rehevmg Contractor of ~ts obhgat~ons hereunder, may so perform, but all costs and expenses so recurred by Owner m that event shall be reimbursed by Contractor to Owner, together wth interest on the same from the date any such expense was pa~d by Owner until reanbursed by Contractor, at the rate of interest prowded to be pa~d on judgments, under the laws of the State of Texas Tbas mdernmfieatlon shall not be lumted to damages, compensation or benefits ~ayable under msurenee poheaes, workers' compensatmn acts, d~sab~hty enefit acts or other employees' benefit acts 9 12 1 It is understood and agreed that Paragraph 9 12 above ~s subject to, and Page 3 of 6 expressly hrcated by, the terms and eondmons of TEX CIV PRACT & REM COND ANN §§130 001-130 005 (Vernon Supp 1989), as amended Contractor shall not be obhgated under Paragraph 9 12 to mdemmfy or hold harmless Engineer or an agent, servant, or employee of Engineer from hab~hty or damage that ~s caused by or results from gross neghgenee of the Engineer m the read,trna or conduct of professional duties called for or arising out of the Contract Documents and the plans, designs or specaficat~ons that are a part of the Contract Documents 9 12 3 It ~s agreed v~th respect to any legal hrmtat~ons now or herea~er m effect and affecting the valida~ or enforceab~hty of the mdemraficat~on obhgat~on under th~sParagraph9 12, such legal luratatxons are made a part of the mdemmficataon obhgat~on and shall operate to amend the mderan~cataon obhgat~on to the m,mm,~a extent necessary to bnng the prows~on rotc co.urinary w~th the requirements of such lmutataons, and as so modified, the mdemmficat~on obhgatmn shaft eontmue m full force and effect 10 5 is hereby modified to include the follovang at the end of the paragraph The Engineer (ff the matter is referred to the Engineer for u~at~al deexston) vall review elanns and vathm ten (10) days al~er receipt of a elmm will e~ther (0 reJeCt the clamam whole or m part, (a) recommend approval of the claim m whole or m part, 0a) request the elannant provide add~tmnal mfo, rmatlon m support of the clatm, or 0v) suggest a comprormse The Engineers action under the precechng sentence shall be reported to the Owner and the Contractor If a clama ms not resolved a~er eonslderataon of the foregoing and of any further evadence prowded to the Engineer, the elannant shall be entitled to pursue tts clmm m any lawful manner, subject to ~y. hrmtataons contained m the Contract Documents Any reeommendatmn ct'the Engineer for the chsposxtton of any elama shall not be binding on the Owner or the Contractor 12 1 1 Owner agrees that ~ts separate Contracts for both the ut~ty work and the paving work on the project shall contain co. ndmons ~denucal or ~bstantmlly~ singular to these, including those port~ons relating to insurance uno waiver cz subrogataon 14 2 Upon notaficatxon fromthe Contractor that the Work ~s ready to be renewed for Complctlon, the Owner and Enflaneer shall review the.W..or~ and t, he Er~neer shall promptly prepare and subrcat to the Owner and tl~e t~ontractor a hst of pomons of the Work to be completed or corrected and shall report such other quahficataons and excepuons as the Engineer and Owner may deem appropriate Wxttnn tbarty (30) days aider the xssuanee of such hst, Contractor shall remove, remedy, cure, correct or complete all xtems on the hst and all qual~ficatmns and exeeptxons contained therem Thereai~er, the Owner and Engineer shall review the work and upon detenranataon by Page 4 of 6 Engineer and Owner that eompletton has occurred, the. Engkn, e?r shal! issue a letter that completion has occurred to the best ofthetr r,.now~eage 14 3 In the event that the work ts delayed by strikes, lockouts, embargoes, acts of God, nalaonal emergency, fires, unavmdable casualtaes or other causes beyond the control of Contractor and not contributed to m any manner by Contractor, the lame for completion may be extended by the number of days by winch the work is so delayed, promded, no such extension shall be granted unless Contractor shall have g~ven Owner written not,ce of such delay wtthm three (3) days after commencement of such delay 14 4 Extension of the tn'ne for completion shall be Contractor's exclusive remedy m the event of any delay caused by or resulting from any act or ormss~on by Contractor Contractor shall be entatled to reeeave no compensalaon for any delay or hindrance to the work caused by or resulting from any act or omass~on by Contractor 14 5 2 Owner and Contractor agree that final complelaon (hereto so called) shall be acbaeved when tim Agreement has been fully performed by Contractor, and Contractor has dehvered to Owner a final status letter fi'om the C~ty of Denton stating that all ut~hty work has been accepted Contractor shall have fffieen (15) working days from t~ date that Contractor receives not,ce from Engineer to proceed to aeineve final eomplct~on (the "F~nal Completion Date") If Contractor has not aeineved final .co.mpletmn by,the Fro. al Compl~on Date (75 workang days), Contractor sram ,e assessea a penalty of $450 00 for each day after the Final Complelaon Date for winch Contractor has not aebaeved Final Completmn, w~th no maximum penalty 14 5 3 Any lost working days shall be defined and accounted for by Engineer and Owner or ars representalave and Contractor will be nottfied as necessary of the status of the lost working day count If Contractor does not agree wah smd lost working day count, a thtrd party, agreeable to Owner and Contractor, will be selected to make a final determination of actual lost worltmg days 14 5 4 As used throughout tins Contract, the term "workang day" shall be defined to mean any day not including Saturdays, Sundays or any legal hohdays, m winch weather or other con&laons, not under the control of the Contractor, will perrmt hours between 7 00 a m and 6 00 p m, prowded, however, ~f m any week there are less than five (5) "working days" as defined hereto, Saturday shall be included as a "working day", subject to the weather and other eondmons set forth herein 15 3 is hereby modrfied to include the following at the end of the paragraph As a consideration of final eompletmn acceptance, the Contractor shall certify that all remamm$ work, the same being solely of a "punehhst" nature: wtll be completed wtthin thirty (30) conseeulave calendar days or as agreed upon following the date of final complelaon ("Final Completion") Page 5 of 6 Notwithstanding the foregoing, the Owner may refuse to make payme.nt on any eerufieate of final eompleuon or any Payment Reeommendatlon letter (including, without hrmtauon, the final Payment Recommendation Letter) for any default of the Contractor The Owner shall not be deemed m default by reason of vathholdmg payment while any of such defaults remain accrued 20 3 Notwithstanding anything harem to the eontrery, the Contractors nght to terminate the Contract Docnments shall always be subject and subordinate to the right of any lender on the project to assume the posmon of Owner under the Contract Documents 20 4 In adchUon to Owner's right to remove Contractor from any part of the work pursuant to the Contract Document, Owner may, at any tn'ne, at will and without cause, terminate any part of the work or any subcontract or all rero. ammg work for any reason whatsoever by giving seven (7) days~ pn. or written notice to Contractor specifying the work or subcontract to ce terminated If the work or any subcontract is so terminated, Owner shall recur no habrhty to Contractor by reason of such termmauon, (the bas~s for such payment shall be as provided m the Contract Documents) and for costs d~rectly related to work theretofore and thereafter performed by Contractor m termmatmg such work or subcontract including reasonable demobd~zatton and cancellation charges prowded said work ~s authorized m advance by Engineer and Owner No payment shall be made by Owner, however, to the, extent that such work or subcontract is, was or could have been tenmnatea under the Contract Documents or an eqmtable adjustment is made or demed under another provision of the Contract Documents In case of such termination, Owner will ~ssue a Construcuon Change D~rectlve or anthnnze a change order m making any required adjustment to the date of Final Completion and/or the Contract Sum For the part of the work terromated, the appheable prowsions of the Contract Documents s. hall e_ontmue.m fUo~ for~ and effect as to all work performed prior to tiae ett~-'tive date o termination For the remainder of the work. the Contract Documents shall remain m full force and effect 20 5 Paghts and reme&es of Owner and Contractor under this Artxcle 20 shall be non-exclusive and shall be m addmon to the cumulattve of all other remedtcs available to suchpartxes at law or m eqmty, subject only to any express lmutatton provided m flus Agreement 21 7 Contractor agrees to indemnify and hold its partners harmless from and against all claims, demands, e~t~ses of ac~on and expenses (including. but not lmuted to, court costs and attorney's fees) arising out of or m connection with the work performed by Contractor, notwithstanding any cl,,ms or allegations by any party that Owner's neghgenee contributed to any such mdemrafied elatm, demand, cause of action or expense 21 8 Contractor to provide, as an incidental cost, reqmred e~ty maintenance bond Pag~ 6 EXHIBIT G OWNER CERTIFICATION STORM WATER POLLUTION PREVENTION PLAN OWNER CERTIFICATION OF STORM WATER POLLUTION PREVENTION PLAN FOR OAKMONT II, SECTION I The owner for the above named constru~on s~te ~s ~dent~fied below and must sIgn the following certIfication statement Name of Owner" Lennox Oak II, L.P. Address 6116 N. Central Expwy, Su,te 1313 Dallas, Texas 75206 Telephone Number (214) 696-9933 Certification Statement. "1 certify under penalty of law that th~s document and all attachments were prepared under my dlrecbon or superv~s;on ;n accordance ~th a system designed to assure that quahfied personnel properly gathered and evaluated the information subm,tted Based upon my mqu,ry of the person or persons who manage the system, or those persons d~rectly responsible for gathenng the mformat~on, the ;nformat;on subm;tted ~s, to the best of my knowledge and behef, true, accurate and complete I am aware that there are s;gn~ficant penalties for submitting false mformatmn, including the poss;b~hty of fine and ~mpnsonment for kno~ng vmlatmns" Th~s certification ~s hereby mgned ~n reference to OAKMONT II, SECTION I' Page 1 of 1 EXHIBIT H TEXAS SALES TAX EXEMPTION CERTIFICATE lName of purchaser, fire1 ~ agenoy I I, the purchaser named above, claim an exemption from payment of sales t~es for the purchase of t~able ~tems descnb~ below or on the a~ached o~er or invo~ from Seller ~met addm~ , Ci~, State, Zip code Description of items to be pur~asad, or on the affach~ o~er or Invm~ Pumhaser claims this exemption for the following reason I understand that I will be liable for payment of sales tax which may become due for fallurs to comply with the provisions of the state, city, metropolitan transit authority, city transit depmtment and/or county sales and use tax laws and Comptroller rules regarding exempt purchases Liab~hty for the tax w~ll be determined by the price paid for the taxable ~tems purchased or the fmr market value for the period of time used I understand that it Is a misdemeanor to give an exemption certificate to the seller for taxable Items whmh I know, at the time of purchase, will be used In a manner other than that expressed in this certificate and that upon conviction may be fined not more then $500 per offense sign ~' I~--~here iT~. 0,~ NOTE This certificate cannot be issued for the purchase, lease or rental of a motor vehicle THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID Sales and Use Tax "Exemption Numbers" or "Tax Exempt" Numbers do not exist This certificate should be furnished to the supplier Do not send the completed certificate to the Comptroller of Public Accounts Page 1 of 1 (214) 989-0000 B 5Z5 No. EeaZy Argue