HomeMy WebLinkAboutResolution - 2018-R0128 - Hensel Phelps - 04/12/2018Resolution No. 2018-RO128
Item No. 6.9
April 12, 2018
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for
and on behalf of the City of Lubbock, Contract No. 13705 for construction manager at risk
services for terminal building modifications at Lubbock Preston Smith International Airport, by
and between the City of Lubbock and Hensel Phelps, of Austin, Texas and related documents.
Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and
shall be included in the minutes of the City Council.
Passed by the City Council on April_12, 2018
DANIEL M. POPE, MAYOR
ATTEST:
Reb cca Garza, City Secret
APPROVED AS TO CONTENT:
Kelly Campbell, Executive Director Airport
APPROVED AS TO FORM:
c
elli Leisure, Assistant City Attorney
ccdocs/RES.HenseIPhelpsCMAR
3.27. ] 8
Resolution No. 2018-RO128
AGREEMENT FOR CONSTRUCTION MANAGER AT RISK
WHERE THE CONSTRUCTION MANAGER AT RISK IS ALSO THE
CONSTRUCTOR BETWEEN CITY OF LUBBOCK AND HENSEL PHELPS
This Agreement, made to be effective on the _12th_ day of _April_ 2018, is entered into
in Lubbock County, Texas by and between, Hensel Phelps a Delaware general partnership whose address
is 8326 Cross Park Drive, Austin, Texas 78754, as Construction Manager at Risk hereinafter called
"CONTRACTOR", and the City of Lubbock, Texas, (OWNER) a Texas home -rule municipal corporation,
whose address is 1625 131 Street, Lubbock, Texas 79457, hereinafter called "OWNER".
WHEREAS, in accordance with law, OWNER, has caused Contract Documents to be prepared and
a Request for Qualifications to be published, for and in connection with Request for Qualifications for
Construction Manager at Risk Services ("RFQ No. 18-13705-TF"), for terminal building modifications at
Lubbock Preston Smith International Airport (LPSIA), whose address is 5401 North Martin Luther King
Boulevard, Lubbock, Texas 79403; and
WHEREAS, CONTRACTOR, in response to the Request for Qualifications, has submitted to
OWNER, in the manner and at the time specified, a Qualifications package in accordance with the
"Instruction to Bidders" contained within the Request for Qualifications; and
WHEREAS, The City Council of the City of Lubbock, by Resolution adopted onj4Lz,, 2018,
approved the selection of CONTRACTOR and authorized the Mayor to execute a contract, under the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained,
OWNER and CONTRACTOR agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.0 SCOPE OF WORK
CONTRACTOR services for terminal building modifications at (LPSIA) which, in general, includes Scope
of Work as described in RFP No. 18-13705-TF, incorporated herein by reference for all purposes
(hereinafter the "Work"). The Work includes Pre -construction and Construction services. The Work is
located at 5401 North Martin Luther King Boulevard, Lubbock, Texas 79403. The CONTRACTOR
Services under the direction of the OWNER will provide consultation and construction services during the
design and construction phase of the Work for upgrades and/or replacement of existing infrastructure,
interior and exterior improvements, and interior finish upgrades to the LPSIA terminal building.
The Architect is: RS&H, Inc.
10748 Deerwood Park Boulevard
Jacksonville, Florida 32256
1.1 CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Request for Qualifications, RFQ No. 18-13705-TF,
OWNER'S Construction General Conditions, Attachment 1, CONTRACTOR'S General Conditions and
fees proposed, Attachment 2, CONTRACTOR'S response to OWNER'S Request for Qualifications and
all documents, conditions, specifications, technical data, drawings, requirements as of the time this
-1-
Agreement is entered into by CONTRACTOR and OWNER, any written amendments signed by both
parties in the future, written and OWNER -approved change order requests, and written changes of scope
of services approved by the OWNER, all of which form the Agreement and are as fully a part of the
Agreement as if attached to this Agreement or repeated herein.
1.2 GENERAL CONDITIONS
For the Construction Phase, the General Conditions of the Contract shall be the OWNER'S construction
contract, General Conditions ("OWNER'S General Conditions"), included with this Agreement as
Attachment 1, and the Qualifications package, dated October 20, 2017, and the CONTRACTOR'S Project
General Conditions Detail, a copy of which is attached as Attachment 2. Both Attachments 1 and 2 are
incorporated herein for all purposes by reference. The term "contractor" as used in Attachment 1 shall
mean the CONTRACTOR.
1.3 CONFLICTS
This Agreement, the Contract Documents, and the documents required to be provided constitute the entire
agreement of the parties hereto and supersede any prior written or oral agreements and understandings
between the parties. If any provision of this Agreement or any provision of the Contract Documents,
conflicts or is inconsistent with any other provision of the Contract Documents, then the conflict or
inconsistency will be resolved first by reference to the terms of this Agreement, then to OWNER'S
Construction General Conditions, Attachment 1, then to CONTRACTOR'S General Conditions,
Attachment 2, and then to Contract Specifications and Drawings, unless a state or federal law, regulation
or restriction would require otherwise, in which case the applicable state or federal provision would control.
ARTICLE 2
CONTRACTOR'S RESPONSIBILITIES
2.0.1 The CONTRACTOR shall perform the services described in this Article. The services to be
provided under Parts 2.1 and 2.2 constitute the Preconstruction Phase services. If the OWNER and
CONTRACTOR agree in writing, after consultation with the Architect, the Construction Phase may
commence before the Preconstruction Phase is completed, in which case both phases shall proceed
concurrently. The CONTRACTOR shall perform the duties of and shall hold the rights of a
CONTRACTOR as set forth in Subchapter F of Chapter 2269 of the Texas Government Code.
2.0.2 The CONTRACTOR shall, in collaboration with the OWNER, the OWNER'S legal counsel, and
the Architect, assist with compliance by all parties with Subchapter F, Chapter 2269 of the Texas
Government Code and all other applicable statutory provisions regarding the renovation of the Work.
2.0.3 CONTRACTOR covenants that all the Work shall be performed in a good and workmanlike
manner and that all materials furnished and used in connection therewith shall be new and subject to
approval by Architect, except as otherwise expressly provided for in the Drawings and Specifications.
CONTRACTOR shall cause all materials and other parts of the Work to be readily available as and when
required or needed for, or in connection with, the construction, furnishing, and equipping of the Work.
2.0.4 CONTRACTOR shall provide competent supervision of all phases of the Work and shall cause
the Work to be performed in accordance with the Drawings and Specifications and all things there from.
Prior to commencement of construction, CONTRACTOR shall prepare and submit for OWNER's written
approval the Progress Schedules for the Work. These schedules shall indicate the dates for the starting and
completion of the various stages of construction and shall be revised as required by the conditions of the
-2-
Work, subject to the OWNER'S prior written approval.
2.0.5 CONTRACTOR shall prepare or cause to be prepared, as part of the Work, all shop drawings and
other submittals not made a part of the Drawings and Specifications which are required. CONTRACTOR
will also provide and be responsible for all general conditions of the Work such as hoists, safety equipment,
portable toilets, and other necessary provisions, the cost of rental for which shall be part of construction
cost. The CONTRACTOR may delegate safety responsibilities for the Work to subcontractors and trade
contractors; however, such delegation shall not relieve the CONTRACTOR of any of its duties or liabilities
to the OWNER under this Agreement. Unless expressly provided herein to the contrary, subcontractors,
trade creditors, trade contractors, and suppliers shall not be third party beneficiaries of the rights or benefits
of the OWNER created in this Agreement.
2.1 PRECONSTRUCTION PHASE
2.1.1 PRELIMINARY EVALUATION
The CONTRACTOR shall provide a preliminary evaluation of the OWNER'S program and Work budget
requirements, each in terms of the other.
2.1.2 CONSULTATION
CONTRACTOR, with the Architect, shall jointly schedule and attend regular meetings with the OWNER
and Architect. The CONTRACTOR shall consult with the OWNER and Architect regarding site use and
improvements, and the selection of materials, building systems and equipment. The CONTRACTOR shall
provide suggestions on construction feasibility; actions designed to minimize adverse effects of labor or
material shortages; time requirements for procurement, installation and construction completion; and,
factors related to construction cost including estimates of alternative designs or materials, preliminary
budgets and possible economies.
2.1.3 PRELIMINARY WORK SCHEDULE
When the Work requirements described in Subparagraph 3.1.1 have been sufficiently identified, the
CONTRACTOR shall prepare, and periodically update, a preliminary Work schedule for the Architect's
review and the OWNER'S written approval. The CONTRACTOR shall obtain the Architect's approval of
the portion of the preliminary Work schedule relating to the performance of the Architect's services. The
CONTRACTOR shall coordinate and integrate the preliminary Work schedule with the services and
activities of the OWNER, Architect, and CONTRACTOR. As design proceeds, the preliminary Work
schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt
and approval of pertinent information, submittal of a GMT proposal, preparation and processing of shop
drawings and samples, delivery of materials or equipment requiring long -lead time procurement,
OWNER'S occupancy requirements showing portions of the Work having occupancy priority, and
proposed date of Substantial Completion (as defined by the American Institute of Architects, here and
throughout). If preliminary Work schedule updates indicate that previously approved schedules may not
be met, the CONTRACTOR shall make appropriate recommendations to the OWNER and Architect.
2.1.4 PHASED CONSTRUCTION
The CONTRACTOR shall make suggestions to the OWNER and Architect regarding the phased issuance
of Drawings and Specifications to facilitate phased construction of the Work, if such phased construction
is appropriate for the Work, taking into consideration such factors as economies, time of performance,
availability of labor and materials, and provisions for temporary facilities.
2.1.5 PRELIMINARY COST ESTIMATES
2.1.5.1 When the OWNER has sufficiently identified the Work requirements and the Architect has
prepared other basic design criteria, the CONTRACTOR shall prepare, for the review of
-3-
the Architect and written approval of the OWNER, a preliminary cost estimate utilizing
area, volume, or similar conceptual estimating techniques.
2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by
the OWNER, the CONTRACTOR shall prepare for the review of the Architect and written
approval of the OWNER, a more detailed cost estimate with supporting data. During the
preparation of the Design Development Documents, the CONTRACTOR shall update and
refine this cost estimate at appropriate intervals agreed to by the OWNER, Architect and
CONTRACTOR.
2.1.5.3 When Design Development Documents have been prepared by the Architect and approved
by the OWNER, the CONTRACTOR shall prepare a detailed cost estimate with supporting
data for review by the Architect and written approval by the OWNER. During the
preparation of the Construction Documents, the CONTRACTOR shall update and refine
this cost estimate at appropriate intervals agreed to by the OWNER, Architect and
CONTRACTOR.
2.1.5.4 If any cost estimate submitted to the OWNER exceeds previously approved cost estimates
or the OWNER'S budget, the CONTRACTOR shall make appropriate recommendations
to the OWNER and Architect.
2.1.6 SUBCONTRACTORS, TRADE CONTRACTORS AND SUPPLIERS
The CONTRACTOR shall seek to develop subcontractor interest in the Work, subcontractors trade
contractors and suppliers shall be selected in the manner provided in Subchapter F of Chapter 2269, of the
Texas Government Code. The CONTRACTOR shall furnish to the OWNER and Architect for their
information a list of possible subcontractors and trade contractors, including suppliers who are to furnish
materials or equipment fabricated to a special design, from which qualifications will be requested for each
principal portion of the Work. The Architect will promptly reply in writing to the CONTRACTOR if the
Architect or OWNER knows of any objection to such subcontractor, trade contractor or supplier. The
receipt of such list shall not require the OWNER or Architect to investigate the qualifications of proposed
subcontractors, trade contractors or suppliers, nor shall it waive the right of the OWNER or Architect later
to object to or reject any proposed subcontractor, trade contractor or supplier.
2.1.7 LONG -LEAD TIME ITEMS
The CONTRACTOR shall recommend to the OWNER and Architect a schedule for procurement of long -
lead time items which will constitute part of the Work as required that meets the Work schedule. If such
long -lead time items are procured by the OWNER, they shall be procured on terms and conditions
acceptable to the CONTRACTOR. Upon the OWNER'S acceptance of the CONTRACTOR'S Guaranteed
Maximum Price (GMP) proposal, all contracts for such items shall be assigned by the OWNER to the
CONTRACTOR, who shall accept responsibility for such items as if procured by the CONTRACTOR.
The CONTRACTOR shall expedite the delivery of long -lead time items.
2.1.8 EXTENT OF RESPONSIBILITY
The CONTRACTOR does not warrant or guarantee cost estimates and schedules except as may be included
as part of the GMP. The suggestions and advice of the CONTRACTOR concerning design alternatives
shall be subject to the review and approval of the OWNER and the OWNER'S professional consultants. It
is not the CONTRACTOR'S responsibility to ascertain that the Drawings and Specifications are in
accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if
the CONTRACTOR knows that portions of the Drawings and Specifications are at variance therewith, the
CONTRACTOR shall promptly notify the Architect and OWNER in writing.
-4-
2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
The CONTRACTOR shall comply with applicable laws, regulations, and special requirements of the
Contract Documents regarding equal employment opportunity and affirmative action programs.
2.1.9.1 NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION to ENSURE EQUAL
EMPLOYMENT OPPORTUNITY
1. The Offeror's or Bidder's attention is called to the "Equal Opportunity Clause" and the
"Standard Federal Equal Employment Opportunity Construction Contract Specifications"
set forth herein.
2. The goals and timetables for minority and female participation, expressed in
percentage terms for the CONTRACTOR'S aggregate workforce in each trade on all
construction work in the covered area, are as follows:
Timetables
Goals for minority participation for each trade: 19.6%
Goals for female participation in each trade: 6.9%
These goals are applicable to all of the CONTRACTOR'S construction work (whether or
not it is Federal or federally -assisted) performed in the covered area. If the
CONTRACTOR performs construction work in a geographical area located outside of the
covered area, it shall apply the goals established for such geographical area where the work
is actually performed. With regard to this second area, the CONTRACTOR also is subject
to the goals for both its federally involved and non -federally involved construction.
The CONTRACTOR'S compliance with the Executive Order and the regulations in 41
CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause,
specific affirmative action obligations required by the specifications set forth in 41 CFR
60-4.3(a), and its efforts to meet the goals. The hours of minority and female employment
and training must be substantially uniform throughout the length of the contract, and in
each trade, and the CONTRACTOR shall make a good faith effort to employ minorities
and women evenly on each of its projects. The transfer of minority or female employees or
trainees from CONTRACTOR to CONTRACTOR or from project to project for the sole
purpose of meeting the CONTRACTOR'S goals shall be a violation of the contract, the
Executive Order and the regulations in 41 CFR Part 604. Compliance with the goals will
be measured against the total work hours performed.
3. The CONTRACTOR shall provide written notification to the Director of the Office of
Federal Contract Compliance Programs (OFCCP) within 10 working days of award of
any construction subcontract in excess of $10,000 at any tier for construction work under
the contract resulting from this solicitation. The notification shall list the name, address,
and telephone number of the subcontractor; employer identification number of the
subcontractor; estimated dollar amount of the subcontract; estimated starting and
completion dates of the subcontract; and the geographical area in which the subcontract is
to be performed.
4. As used in this notice and in the contract resulting from this solicitation, the "covered
area" is Texas, Lubbock County, Lubbock.
-5-
2.1.9.2 GENERAL CIVIL RIGHTS PROVISIONS
The CONTRACTOR agrees to comply with pertinent statutes, Executive Orders and such rules
as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national
origin, sex, age, or disability be excluded from participating in any activity conducted with or
benefiting from Federal assistance.
This provision binds the CONTRACTOR and subtier CONTRACTORS from the bid solicitation
period through the completion of the contract. This provision is in addition to that
required of Title VI of the Civil Rights Act of 1964.
2.1.9.3 As a covenant running with the land, in any deed from the United States effecting or
recording a transfer of real property, structures, use, or improvements thereon or interest therein to
a sponsor.
2.1.9.4 Title VI List of Pertinent Nondiscrimination Acts and Authorities
During the performance of this contract, the CONTRACTOR, for itself, its assignees, and
successors in interest (hereinafter referred to as the "CONTRACTOR") agrees to comply with the
following non-discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin);
• 49 CFR part 21 (Non-discrimination In Federally -Assisted Programs of The
Department of Transportation —Effectuation of Title VI of The Civil Rights Act of
1964);
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose
property has been acquired because of Federal or Federal -aid programs and projects);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended,
(prohibits discrimination on the basis of disability); and 49 CFR part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.),
(prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as
amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope,
coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age
Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities" to include all of the
programs or activities of the Federal -aid recipients, sub -recipients and
CONTRACTORS, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act of 1990, which prohibit
discrimination on the basis of disability in the operation of public entities, public and
private transportation systems, places of public accommodation, and certain testing
-6-
entities (42 U.S.C. §§ 12131 — 12189) as implemented by Department of
Transportation regulations at 49 CFR parts 37 and 38;
The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123)
(prohibits discrimination on the basis of race, color, national origin, and sex);
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low -Income Populations, which ensures non-discrimination against
minority populations by discouraging programs, policies, and activities with
disproportionately high and adverse human health or environmental effects on minority
and low-income populations;
Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of limited English proficiency (LEP). To ensure
compliance with Title VI, you must take reasonable steps to ensure that LEP persons
have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. 1681 et
seq).
2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIlgE
2.2.1 When the Drawings and Specifications are sufficiently complete, and after the bids and responses
of the subcontractors and trade CONTRACTORS have been reviewed and evaluated by the
CONTRACTOR and the CONTRACTOR has made its recommendations to the OWNER of the bids and
responses to be accepted, the CONTRACTOR shall propose a GMT, which shall be the sum of the estimated
Cost of the Work and the CONTRACTOR'S Fee.
2.2.2 As the Drawings and Specifications may not be finished at the time the GMT proposal is prepared,
the CONTRACTOR shall provide in the GMP for further development of the Drawings and Specifications
by the Architect that is consistent with the Contract Documents. Such further development does not include
such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which,
if required, shall be incorporated by Change Order.
2.2.3 BASIS OF GUARANTEED MAXIMUM PRICE
The CONTRACTOR shall include with the GMT proposal a written statement of its basis, which shall
include:
2.2.3.1 A list of the Drawings and Specifications, including all addenda thereto and the
Conditions of the Contract, which were used in preparation of the GMT proposal.
2.2.3.2 A list of allowances and a statement of their basis.
2.2.3.3 A list of the clarifications and assumptions made by the CONTRACTOR in the preparation
of the GMP proposal to supplement the information contained in the Drawings and Specifications.
2.2.3.4 The proposed GMT, including a statement of the estimated cost organized by trade
categories, allowances, and other items and the fee that comprise the GNP.
-7-
2.2.3.5 Number of days required for substantial completion including construction schedule from
and after issuance of a notice to proceed to actual date of substantial completion.
2.2.4 The CONTRACTOR shall meet with the OWNER and Architect to review the GMP proposal and
the written statement of its basis. In the event that the OWNER or Architect discovers any inconsistencies
or inaccuracies in the information presented, they shall promptly notify the CONTRACTOR, who shall
make appropriate adjustments to the GMP proposal, its basis or both.
2.2.5 Unless the OWNER accepts the GMP proposal in writing on or before the date specified in the
proposal for such acceptance and so notifies the CONTRACTOR, the GMP proposal shall not be effective.
CONTRACTOR will then have 21 days to re -submit the GMT for OWNER'S review for acceptance.
2.2.6 Prior to the OWNER'S acceptance of the CONTRACTOR'S GMT proposal and issuance of a
Notice to Proceed, the CONTRACTOR shall not incur any cost to be reimbursed as part of the Cost of the
Work, except as the OWNER may specifically authorize in writing.
2.2.7 Upon acceptance by the OWNER of the GMT proposal which will require the approval of the
OWNER's governing body, the GNP and its basis shall be set forth in Amendment No.1. The GMP shall
be subject to additions and deductions by a change in the Work as provided in the Contract Documents and
the date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents.
2.2.8 The OWNER shall authorize and cause the Architect to revise the Drawings and Specifications to
the extent necessary to reflect the agreed -upon assumptions and clarifications contained in Amendment
No.1. Such revised Drawings and Specifications shall be furnished to the CONTRACTOR in accordance
with schedules agreed to by the OWNER, Architect and CONTRACTOR. The CONTRACTOR shall
promptly notify the Architect and OWNER if such revised Drawings and Specifications are inconsistent
with the agreed -upon assumptions and clarifications.
2.2.9 The GNP shall include in the Cost of the Work only those taxes which are enacted at the time the
GNP is established. The Work is exempt from state sales taxes on material incorporated in the Work.
CONTRACTOR will accept exemption certificates from the OWNER and, where required, will require
trade CONTRACTORS and subcontractors to segregate materials and labor costs.
2.3 CONSTRUCTION PHASE
2.3.1 GENERAL
2.3.1.1 The Construction Phase shall commence on the earlier of:
(1) The OWNER'S acceptance of the CONTRACTOR'S GNP proposal and
issuance of a Notice to Proceed, or
(2) The OWNER'S first authorization to the CONTRACTOR to:
(a) Award a subcontract, or
(b) Undertake construction Work with the CONTRACTOR'S own forces, or
(c) Issue a purchase order for materials or equipment required for the Work.
10
2.3.2 BIDDING AND ADMINISTRATION
2.3.2.1 The CONTRACTOR shall publicly advertise, as prescribed for a governmental entity
under Subchapter F, Chapter 2269 of the Texas Government Code and in the manner
prescribed under Section 271.025 of the Texas Local Government Code, and receive bids
or Qualifications from trade contractors, subcontractors or suppliers for the performance
of all major elements of the Work other than the minor work that may be included in the
general conditions. The CONTRACTOR may seek to perform portions of the work itself
if the CONTRACTOR submits its bid or proposal for those portions of the work in the
same manner as all other trade contractors, subcontractors, or suppliers and if the OWNER
determines that the CONTRACTOR'S bid or proposal provides the "best value", as that
term is used in Subchapter F, Chapter 2269 of the Texas Government Code, for the
OWNER.
2.3.2.2 The CONTRACTOR shall open bids as required by law in the presence of the OWNER'S
representatives or Architect, who shall review all trade contractor, subcontractor, or
supplier bids or Qualifications in a manner that does not disclose the contents of the bid or
proposal during the selection process to a person not employed by the CONTRACTOR,
Architect, Engineer, if applicable, or OWNER. All bids or Qualifications shall be made
public after the award of the contract or not later than the seventh day after the date of final
selection of bids or Qualifications, whichever is later.
2.3.2.3 If the CONTRACTOR reviews, evaluates, and recommends to the OWNER a bid or
proposal from a trade contractor, subcontractor, or supplier, but the OWNER requires
another bid or proposal to be accepted, the OWNER shall compensate the CONTRACTOR
by a change in compensation, time and/or GNP for any additional cost and risk that the
CONTRACTOR may incur because of the OWNER'S requirement that another bid or
proposal be accepted.
2.3.2.4 The successful bidder, by administering each lower tier subcontract that exceeds $25,000
as a "covered transaction", must verify each lower tier participant of a "covered
transaction" under the project is not presently debarred or otherwise disqualified from
participation in this federally assisted project. The successful bidder will accomplish this
by:
1. Checking the System for Award Management at website: _ p://www.sam.P_oy.
2. Collecting a certification statement similar to the Certificate Regarding Debarment and
Suspension (Bidder or Offeror), above.
3. Inserting a clause or condition in the covered transaction with the lower tier contract.
If the FAA later determines that a lower tier participant failed to disclose to a higher tier
participant that it was excluded or disqualified at the time it entered the covered transaction,
the FAA may pursue any available remedies, including suspension and debarment of the
non -compliant participant.
2.3.2.5 If a selected trade contractor, subcontractor, or supplier defaults in the performance of its
work or fails to execute a subcontract after being selected in accordance with
subparagraphs 2.3.2.1 through 2.3.2.3 above, the CONTRACTOR, may, without
advertising, fulfill the contract requirements itself or select a replacement trade contractor,
subcontractor, or supplier to fulfill the contract requirements.
W
2.3.2.6 The CONTRACTOR shall enter into contracts with subcontractors, materials suppliers and
trade contractors which are selected on the basis of best value to the OWNER. The
CONTRACTOR shall enter into a separate contract or an amendment to this contract with
respect to any portions of the Work which the CONTRACTOR was awarded and which
will be performed by the CONTRACTOR's staff or employees. The CONTRACTOR may
perform all minor work that may be included in the general conditions; and, may seek to
perform portions of the major elements of the Work if the CONTRACTOR submits its bid
or proposal for those portions of the work, one day prior to the bid due date, in the same
manner as all other trade contractors or subcontractors; and, the OWNER determines that
the CONTRACTOR'S bid or proposal provides the best value for the OWNER.
2.3.2.7 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated
to a special design shall conform to the payment provisions of Subparagraphs 7.1.8 and
7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of
the OWNER.
2.3.2.8 The CONTRACTOR shall schedule and conduct meetings at which the OWNER,
Architect, CONTRACTOR and appropriate subcontractors can discuss the status of the
Work. The CONTRACTOR shall prepare and promptly distribute meeting minutes.
2.3.2.9 Promptly after the OWNER'S acceptance of the GMT proposal, the CONTRACTOR shall
prepare a schedule in accordance with Attachment 1, including the OWNER'S occupancy
requirements.
2.3.2.10 The CONTRACTOR shall provide at least monthly written reports to the OWNER and
Architect on the progress of the entire Work. The CONTRACTOR shall maintain a daily
log containing a record of relevant weather conditions at the Work site, subcontractors
working on the Work site, number of workers on the Work site, Work accomplished,
problems encountered and other similar relevant data as the OWNER may reasonably
require. The log shall be continuously available to the OWNER and Architect.
2.3.2.11 The CONTRACTOR shall develop a system of cost control for the Work, including
regular monitoring of actual costs for activities in progress and estimates for uncompleted
tasks and proposed changes. The CONTRACTOR shall identify variances between actual
and estimated costs and report the variances to the OWNER and Architect at regular
intervals.
2.3.2.12 The CONTRACTOR shall ensure all subcontractors, lower tier contractors, and trade
contractors, and the work performed thereby, adhere to all covenants and premises
contained within this agreement in its entirety.
2.4 PROFESSIONAL SERVICES
The CONTRACTOR shall not be required to provide professional services which constitute the practice of
Architecture or Engineering.
2.5 ENERGY CONSERVATION REQUIREMENTS
CONTRACTOR and Subcontractor agree to comply with mandatory standards and policies relating to
energy efficiency as contained in the state energy conservation plan issued in compliance with the Energy
Policy and Conservation Act (42 U.S.C. 620let seq).
-10-
2.6 UNSAFE MATERIALS
If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons
resulting from a material or substance encountered but not created on the site by the CONTRACTOR, the
CONTRACTOR shall, upon recognizing the condition, immediately stop Work in the affected area and
report the condition to the OWNER and Architect in writing. The OWNER shall be responsible for
obtaining the services of a licensed laboratory to verify the presence or absence of the material or substance
reported by the CONTRACTOR and, in the event such material or substance is found to be present, to
verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the
OWNER shall furnish in writing to the CONTRACTOR and Architect the names and qualifications of
persons or entities who are to perform tests verifying the presence or absence of such material or substance
or who are to perform the task of removal or safe containment of such material or substance. The
CONTRACTOR and Architect will promptly reply to the OWNER in writing stating whether or not either
has reasonable objection to the persons or entities proposed by the OWNER. If either the CONTRACTOR
or Architect has an objection to a person or entity proposed by the OWNER, the OWNER shall propose
another to whom the CONTRACTOR and Architect have no reasonable objection.
2.7 CLEAN AIR AND WATER POLLUTION CONTROL
CONTRACTOR agrees to comply with all applicable standards, orders, and regulations issued pursuant
to the Clean Air Act (42 U.S.C. § 740-7671q) and the Federal Water Pollution Control Act as amended
(33 U.S.C. § 1251-1387). The CONTRACTOR agrees to report any violation to the OWNER
immediately upon discovery. The OWNER assumes responsibility for notifying the Environmental
Protection Agency (EPA) and the Federal Aviation Administration.
CONTRACTOR must include this requirement in all subcontracts that exceeds $150,000.
2.8 INDEMNIFICATION
2.8.1 GENERAL INDEMNIFICATION. CONTRACTOR AGREES TO INDEMNIFY, DEFEND,
AND HOLD OWNER, ITS COUNCIL MEMBERS, BOARD AND COMMISSION MEMBERS,
OFFICIALS, AGENTS, GUESTS, INVITEES, CONSULTANTS AND EMPLOYEES FREE AND
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, PROCEEDINGS,
SUITS, JUDGMENTS, COSTS, PENALTIES, FINES, DAMAGES, LOSSES, ATTORNEYS' FEES
AND EXPENSES ASSERTED BY ANY PERSON OR PERSONS, INCLUDING AGENTS OR
EMPLOYEES OF CONTRACTOR OR OWNER, BY REASON OF DEATH OR INJURY TO
PERSONS, OR LOSS OR DAMAGE TO PROPERTY, RESULTING FROM OR ARISING OUT
OF, THE VIOLATION OF ANY LAW OR REGULATION OR IN ANY MANNER
ATTRIBUTABLE TO ANY ACT OF COMMISSION, OMISSION, NEGLIGENCE OR FAULT OF
CONTRACTOR, ITS AGENTS OR EMPLOYEES, OR THE JOINT NEGLIGENCE OF
CONTRACTOR AND ANY PARTY INDEMNIFIED HEREUNDER, AS A CONSEQUENCE OF
ITS EXECUTION OR PERFORMANCE OF THIS CONTRACT OR SUSTAINED IN OR UPON
THE WORK PREMISES, OR AS A RESULT OF ANYTHING CLAIMED TO BE DONE OR
ADMITTED TO BE DONE BY CONTRACTOR HEREUNDER. THIS INDEMNIFICATION
SHALL SURVIVE THE TERM OF THIS CONTRACT AS LONG AS ANY LIABILITY COULD
BE ASSERTED. NOTHING HEREIN SHALL REQUIRE CONTRACTOR TO INDEMNIFY,
DEFEND, OR HOLD HARMLESS ANY INDEMNIFIED PARTY FOR THE INDEMNIFIED
PARTY'S OWN NEGLIGENCE OR WILLFUL MISCONDUCT.
2.8.2 PROSPECTIVE APPLICATION. ANY AND ALL INDEMNITY PROVIDED FOR IN
THIS CONTRACT SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
CONTRACT AND THE DISCHARGE OF ALL OTHER OBLIGATIONS OWED BY THE
-11-
PARTIES TO EACH OTHER HEREUNDER AND SHALL APPLY PROSPECTIVELY NOT
ONLY DURING THE TERM OF THIS CONTRACT BUT THEREAFTER SO LONG AS ANY
LIABILITY (INCLUDING BUT NOT LIMITED TO LIABILITY FOR CLOSURE AND POST
CLOSURE COSTS) COULD BE ASSERTED IN REGARD TO ANY ACTS OR OMISSIONS OF
CONSTRUCTION MANAGER IN PERFORMING UNDER THIS CONTRACT.
2.9 DAVIS-BACON REOUIREMENTS
1. Minimum Wages
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally
and not less often than once a week, and without subsequent deduction or rebate on any account (except
such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part
3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of
payment computed at rates not less than those contained in the wage determination of the Secretary of Labor
which is attached hereto and made a part hereof, regardless of any contractual relationship which may be
alleged to exist between the CONTRACTOR and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section l (b)(2) of
the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or
mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made
or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are deemed to be constructively made or incurred
during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe
benefits on the wage determination for the classification of work actually performed, without regard to skill,
except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time actually worked
therein: Provided, that the employer's payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination (including any additional classification
and wage rates conformed under (1)(ii) of this section) and the Davis -Bacon poster (WH-1321) shall be
posted at all times by the CONTRACTOR and its subcontractors at the site of the work in a prominent and
accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which
is not listed in the wage determination and which is to be employed under the contract shall be classified in
conformance with the wage determination. The contracting officer shall approve an additional classification
and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in
the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship
to the wage rates contained in the wage determination.
(B) If the CONTRACTOR and the laborers and mechanics to be employed in the classification (if known),
or their representatives, and the contracting officer agree on the classification and wage rate (including the
amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the
contracting officer to the Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized
representative, will approve, modify, or disapprove every additional classification action within 30 days of
-12-
receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period
that additional time is necessary.
(C) In the event the CONTRACTOR, the laborers or mechanics to be employed in the classification or their
representatives, and the contracting officer do not agree on the proposed classification and wage rate
(including the amount designated for fringe benefits where appropriate), the contracting officer shall refer
the questions, including the views of all interested parties and the recommendation of the contracting
officer, to the Administrator for determination. The Administrator, or an authorized representative, will
issue a determination within 30 days of receipt and so advise the contracting officer or will notify the
contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs
(1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under
this contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics
includes a fringe benefit which is not expressed as an hourly rate, the CONTRACTOR shall either pay the
benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
(iv) If the CONTRACTOR does not make payments to a trustee or other third person, the CONTRACTOR
may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated
in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has
found, upon the written request of the CONTRACTOR, that the applicable standards of the Davis -Bacon
Act have been met. The Secretary of Labor may require the CONTRACTOR to set aside in a separate
account assets for the meeting of obligations under the plan or program.
2 Withholding.
The Federal Aviation Administration or the sponsor shall upon its own action or upon written request of an
authorized representative of the Department of Labor withhold or cause to be withheld from the
CONTRACTOR under this contract or any other Federal contract with the same prime CONTRACTOR,
or any other Federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is
held by the same prime CONTRACTOR, so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed
by the CONTRACTOR or any subcontractor the full amount of wages required by the contract. In the event
of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working
on the site of work, all or part of the wages required by the contract, the Federal Aviation Administration
may, after written notice to the CONTRACTOR, sponsor, applicant, or OWNER, take such action as may
be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such
violations have ceased.
3. Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the CONTRACTOR during the course
of the work and preserved for a period of three years thereafter for all laborers and mechanics working at
the site of the work. Such records shall contain the name, address, and social security number of each such
worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs
anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of
the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid.
Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or
-13-
program described in section l (b)(2)(B) of the Davis -Bacon Act, the CONTRACTOR shall maintain
records which show that the commitment to provide such benefits is enforceable, that the plan or program
is financially responsible, and that the plan or program has been communicated in writing to the laborers
or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing
such benefits. CONTRACTOR'S employing apprentices or trainees under approved programs shall
maintain written evidence of the registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the
applicable programs.
(ii)(A) The CONTRACTOR shall submit weekly for each week in which any contract work is performed a
copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the
agency is not such a party, the CONTRACTOR will submit the payrolls to the applicant, sponsor, or
OWNER, as the case may be, for transmission to the Federal Aviation Administration. The payrolls
submitted shall set out accurately and completely all of the information required to be maintained under 29
CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on
weekly transmittals. Instead, the payrolls shall only need to include an individually identifying number for
each employee (e.g., the last four digits of the employee's social security number). The required weekly
payroll information may be submitted in any form desired. Optional Form WH-347 is available for this
purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm
or its successor site. The prime CONTRACTOR is responsible for the submission of copies of payrolls by
all subcontractors. CONTRACTORS and subcontractors shall maintain the full social security number and
current address of each covered worker, and shall provide them upon request to the Federal Aviation
Administration if the agency is a party to the contract, but if the agency is not such a party, the
CONTRACTOR will submit them to the applicant, sponsor, or OWNER, as the case may be, for
transmission to the Federal Aviation Administration, the CONTRACTOR, or the Wage and Hour Division
of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage
requirements. It is not a violation of this section for a prime CONTRACTOR to require a subcontractor to
provide addresses and social security numbers to the prime CONTRACTOR for its own records, without
weekly submission to the sponsoring government agency (or the applicant, sponsor, or OWNER).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the
CONTRACTOR or subcontractor or his or her agent who pays or supervises the payment of the persons
employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under
29CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i)
and that such information is correct and complete;
(2) That each laborer and mechanic (including each helper, apprentice and trainee) employed on
the contract during the payroll period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made either directly or indirectly
from the full wages earned, other than permissible deductions as set forth in Regulations 29 CFR
Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe
benefits or cash equivalents for the classification of work performed, as specified in the applicable
wage determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional
Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by
paragraph (3)(ii)(B) of this section.
-14-
(D) The falsification of any of the above certifications may subject the CONTRACTOR or subcontractor
to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United
States Code.
(iii) The CONTRACTOR or subcontractor shall make the records required under paragraph (3)(i) of this
section available for inspection, copying or transcription by authorized representatives of the sponsor, the
Federal Aviation Administration or the Department of Labor, and shall permit such representatives to
interview employees during working hours on the job. If the CONTRACTOR or subcontractor fails to
submit the required records or to make them available, the Federal agency may, after written notice to the
CONTRACTOR, sponsor, applicant or OWNER, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the
required records upon request or to make such records available may be grounds for debarment action
pursuant to 29 CFR 5.12.
4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they
performed when they are employed pursuant to and individually registered in a bona fide apprenticeship
program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau
of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a
person is employed in his or her first 90 days of probationary employment as an apprentice in such an
apprenticeship program, who is not individually registered in the program, but who has been certified by
the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be
eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen
on the job site in any craft classification shall not be greater than the ratio permitted to the CONTRACTOR
as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice
wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the
applicable wage rate on the wage determination for the classification of work actually performed. In
addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the wage determination for the work actually
performed. Where a CONTRACTOR is performing construction on a project in a locality other than that
in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's
hourly rate) specified in the CONTRACTOR'S or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's
level of progress, expressed as a percentage of the j ourneymen hourly rate specified in the applicable wage
determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the
apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must
be paid the full amount of fringe benefits listed on the wage determination for the applicable classification.
If the Administrator determines that a different practice prevails for the applicable apprentice classification,
fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and
Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an
apprenticeship program, the CONTRACTOR will no longer be permitted to utilize apprentices at less than
the applicable predetermined rate for the work performed until an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually registered
in a program which has received prior approval, evidenced by formal certification by the U.S. Department
of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site
shall not be greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the approved program for
the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the
applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of
-15-
the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full
amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour
Division determines that there is an apprenticeship program associated with the corresponding journeyman
wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any
employee listed on the payroll at a trainee rate that is not registered and participating in a training plan
approved by the Employment and Training Administration shall be paid not less than the applicable wage
rate on the wage determination for the classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted under the registered program shall be paid
not less than the applicable wage rate on the wage determination for the work actually performed. In the
event the Employment and Training Administration withdraws approval of a training program, the
CONTRACTOR will no longer be permitted to utilize trainees at less than the applicable predetermined
rate for the work performed until an acceptable program is approved.
(iii) Equal Employment Opportunity. The utilization of apprentices, trainees and journeymen under this
part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246,
as amended, and 29 CFR Part 30.
5. Compliance with Copeland Act Requirements.
The CONTRACTOR shall comply with the requirements of 29 CFR Part 3, which are incorporated by
reference in this contract.
6. Subcontracts.
The CONTRACTOR or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR Part
5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate
instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier
subcontracts. The prime CONTRACTOR shall be responsible for the compliance by any subcontractor or
lower tier subcontractor with all the contract clauses in 29 CFR Part 5.5.
7. Contract Termination: Debarment.
A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination
of the contract, and for debarment as a CONTRACTOR and a subcontractor as provided in 29
CFR 5.12.
8. Compliance With Davis -Bacon and Related Act Requirements.
All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5
are herein incorporated by reference in this contract.
9. Disputes Concerning Labor Standards.
Disputes arising out of the labor standards provisions of this contract shall not be subject to the general
disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the
Department of Labor set forth in 29 CFR Parts 5, 6 and 7. Disputes within the meaning of this clause include
disputes between the CONTRACTOR (or any of its subcontractors) and the contracting agency, the U.S.
Department of Labor, or the employees or their representatives.
10. Certification of Eligibility.
-16-
(i) By entering into this contract, the CONTRACTOR certifies that neither it (nor he or she) nor any person
or firm who has an interest in the CONTRACTOR'S firm is a person or firm ineligible to be awarded
Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
2.10 CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS
1. Overtime Requirements.
No CONTRACTOR or subcontractor contracting for any part of the contract work which may require or
involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic,
including watchmen and guards, in any workweek in which he or she is employed on such work to work
in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a
rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours
in such workweek.
2. Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in paragraph (1) of this clause, the CONTRACTOR
and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such
CONTRACTOR and subcontractor shall be liable to the United States (in the case of work done under
contract for the District of Columbia or a territory, to such District or to such territory), for liquidated
damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic,
including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this
clause, in the sum of $10 for each calendar day on which such individual was required or permitted to
work in excess of the standard workweek of forty hours without payment of the overtime wages required
by the clause set forth in paragraph (1) of this clause.
3. Withholding for Unpaid Wages and Liquidated Damages.
The Federal Aviation Administration (FAA) or the OWNER shall upon its own action or upon written
request of an authorized representative of the Department of Labor withhold or cause to be withheld, from
any moneys payable on account of work performed by the CONTRACTOR or subcontractor under any
such contract or any other Federal contract with the same prime CONTRACTOR, or any other Federally -
assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same
prime CONTRACTOR, such sums as may be determined to be necessary to satisfy any liabilities of such
CONTRACTOR or subcontractor for unpaid wages and liquidated damages as provided in the clause set
forth in paragraph 2 of this clause.
4. Subcontractors.
The CONTRACTOR or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs
(1) through (4) and also a clause requiring the subcontractor to include these clauses in any lower tier
subcontracts. The prime CONTRACTOR shall be responsible for compliance by any subcontractor or
lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this clause.
2.11 COPELAND "ANTI -KICKBACK" ACT
-17-
CONTRACTOR must comply with the requirements of the Copeland "Anti -Kickback" Act (18 U.S.C.
874 and 40 U.S.C. 3145), as supplemented by Department of Labor regulation 29 CFR part 3.
CONTRACTOR and subcontractors are prohibited from inducing, by any means, any person employed
on the project to give up any part of the compensation to which the employee is entitled. The
CONTRACTOR and each Subcontractor must submit to the OWNER, a weekly statement on the wages
paid to each employee performing on covered work during the prior week. OWNER must report any
violations of the Act to the
Federal Aviation Administration.
2.12 OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
All contracts and subcontracts that result from this solicitation incorporate by reference the requirements
of 29 CFR Part 1910 with the same force and effect as if given in full text. CONTRACTOR must provide
a work environment that is free from recognized hazards that may cause death or serious physical harm to
the employee. The CONTRACTOR retains full responsibility to monitor its compliance and their
subcontractor's compliance with the applicable requirements of the Occupational Safety and Health Act
of 1970 (20 CFR Part 1910). CONTRACTOR must address any claims or disputes that pertain to a
referenced requirement directly with the U.S. Department of Labor — Occupational Safety and Health
Administration.
2.13 DISADVANTAGED BUSINESS ENTERPRISES
Contract Assurance (§ 26.13) - The CONTRACTOR or subcontractor shall not discriminate on the basis
of race, color, national origin, or sex in the performance of this contract. The CONTRACTOR shall carry
out applicable requirements of 49 CFR Part 26 in the award and administration of DOT assisted contracts.
Failure by the CONTRACTOR to carry out these requirements is a material breach of this contract, which
may result in the termination of this contract or such other remedy, as the recipient deems appropriate.
Prompt Payment (§26.29) - The prime CONTRACTOR agrees to pay each subcontractor under this prime
contract for satisfactory performance of its contract no later than 14days from the receipt of each payment
the prime CONTRACTOR receives from OWNER. The prime CONTRACTOR agrees further to return
retainage payments to each subcontractor within 14 days after the subcontractor's work is satisfactorily
completed. Any delay or postponement of payment from the above referenced time frame may occur only
for good cause following written approval of the OWNER. This clause applies to both DBE and non -
DBE subcontractors.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 INFORMATION AND SERVICES
3.1.1 The OWNER shall provide full information in a timely manner regarding the requirements of the
Work, together with a program which sets forth the OWNER'S objectives, constraints and criteria,
including space requirements and relationships, flexibility and expandability requirements, special
equipment and systems, and site requirements.
3.1.2 The OWNER, upon written request from the CONTRACTOR, shall furnish evidence of Work
financing prior to the start of the Construction Phase and from time to time thereafter as the
CONTRACTOR may request. Furnishing of such evidence shall be a condition precedent to
commencement or continuation of the Work.
SFM
3.1.3 The OWNER shall establish and update an overall budget for the Work, based on consultation with
the CONTRACTOR and Architect, which shall include contingencies for changes in the Work and other
costs which are the responsibility of the OWNER.
3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS
3.1.4.1 Throughout the entire Work, OWNER shall provide or contract for, independently of the
CONTRACTOR, the testing of construction materials engineering, and the verification of
testing services necessary for the acceptance of the Work by the OWNER. The OWNER
shall select these services in accordance with Section 2254.004 of the Texas Government
Code. To the greatest extent allowed by applicable law, (a) the CONTRACTOR shall
participate with the OWNER in the selection of persons who will provide such testing and
verification services, and (b) the OWNER will not retain or use the services of any such
persons if the CONTRACTOR presents reasonable objections to such retention or use. In
the event that (a) CONTRACTOR reasonably and in good faith relies upon "testing of
construction materials engineering", "verification of testing services necessary for the
acceptance of the Work by the OWNER", or any other testing or inspection provided by
the OWNER under this Clause 3.1.4.1 (hereinafter collectively "OWNER Provided
Testing and Inspection"), (b) any OWNER Provided Testing and Inspection is faulty or
erroneous and CONTRACTOR does not know of of such fault or error, and (c) the
CONTRACTOR is required to perform additional Work as the results of its reliance upon
such erroneous or faulty OWNER Provided Testing and Inspection, then a Change Order
shall be prepared and signed in accordance with the terms of Attachment 1.
3.1.4.2 In the Preconstruction Phase, the OWNER shall furnish the following with reasonable
promptness and at the OWNER'S expense, and the CONTRACTOR shall be entitled to
rely upon the accuracy of any such information, reports, surveys, drawings and tests in
possession of or prepared at direction of the OWNER and described in Clauses 3.1.4.1 and
3.1.4.4, except to the extent that the CONTRACTOR knows of any inaccuracy.
3.1.4.2.1 Reports, surveys, drawings, and tests concerning the conditions of the site which
are required by law.
3.1.4.2.2 Surveys describing physical characteristics, legal limitations, and utility locations
for the site of the Work, and a written legal description of the site. The surveys
and legal information shall include, as applicable, grades and lines of streets,
alleys, pavements and adjoining property and structures; adjacent drainage; rights -
of -way, restrictions, easements, encroachments, zoning, deed restrictions,
boundaries and contours of the site; locations, dimensions, and necessary data
pertaining to existing buildings, other improvements and trees; and information
concerning available utility services and lines, both public and private, above and
below grade, including inverts and depths. All information on the surveys shall be
referenced to a Work benchmark.
3.1.4.2.3 The services of geotechnical engineers when such services are demonstrated to
be reasonably required by the CONTRACTOR. Such services may include but are
not limited to test borings, test pits, determinations of soil bearing values,
percolation tests, evaluations of hazardous materials, ground corrosion and
resistivity tests, including necessary operations for anticipating subsoil conditions,
with reports and appropriate professional recommendations.
3.1.4.2.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous
-19-
materials, and other laboratory and environmental tests, inspections and reports
which are required by law.
3.1.4.2.5 The services of other consultants when such services are reasonably required by
the scope of the Work and are requested by the CONTRACTOR.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
3.2.1 The OWNER shall designate a representative who shall have express authority to the extent
permitted by law or City Charter, and as authorized by City Council, to bind the OWNER with respect to
all matters requiring the OWNER's approval or authorization. This representative shall have the authority
to make decisions on behalf of the OWNER concerning estimates and schedules, construction budgets, and
changes in the Work, and shall render such decisions promptly and furnish information expeditiously, so
as to avoid unreasonable delay in the services or Work of the CONTRACTOR.
3.2.2 The OWNER designates the following officers as representatives who shall be fully acquainted
with the Work and have the stated authority:
(1) The City Manager to approve changes in the Work not to exceed $50,000 per change order
and only if the change order does not extend the date of substantial completion of any
contract by more than ten (10) days;
(2) The Work Manager shall render decisions, promptly, consistent with the Work schedule;
(3) The City Manager or his Designee to fuunish information expeditiously as requested by
the CONTRACTOR.
3.3 ARCHITECT
The OWNER has designated the aforenamed Architect to provide the Basic Services, including normal
structural, mechanical, and electrical engineering services, other than cost estimating services, described in
the current Architectural Services Agreement, entered into on June 22, 2015 and as amended April 27,
2017, for the Work. The OWNER shall authorize and cause the Architect to provide those Additional
Services as described in the Architectural Services Agreement as requested by the CONTRACTOR which
must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work.
Such services shall be provided in accordance with time schedules agreed to by the OWNER, Architect,
and CONTRACTOR. Upon request of the CONTRACTOR, the OWNER shall furnish to the
CONTRACTOR a copy of the Architectural Services Agreement with the Architect, from which
compensation provisions may be deleted.
3.4 LEGAL REQUIREMENTS
The OWNER shall advise the Architect and CONTRACTOR of any special legal requirements of which
the OWNER is aware relating specifically to the Work which differ from those generally applicable to
construction in the jurisdiction of the Work. The OWNER shall furnish such legal services as are necessary
to provide the information and services required underpart 3.1.
ARTICLE 4
-20-
COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES
The OWNER shall compensate and make payments to the CONTRACTOR for Preconstruction Phase
services as follows:
4.1 COMPENSATION
4.1.1 For the services described in parts 2.1 and 2.2 the CONTRACTOR's compensation shall be based
on the fees proposed in the CONTRACTOR response to RFQ No. 18-13705-TF dated January 19, 2018
copy of which is attached hereto, identified as Attachment 2.
4.1.2 Compensation for Preconstruction Phase services may be equitably adjusted by written agreement
of the parties if CONTRACTOR services extend beyond that originally contemplated under this
Agreement, or the scope of services is significantly modified.
4.2 PAYMENTS
4.2.1 Payments are due and payable thirty (30) days from the date (a) the CONTRACTOR's invoice and
any required supporting documentation is presented to the OWNER or the Architect, and the Architect
issues a Certificate for Payment; or (b) the date the performance of the services under this Agreement are
substantially performed in accordance with the terms of this Agreement, whichever occurs later.
ARTICLE 5
COMPENSATION FOR CONSTRUCTION PHASE SERVICES
The OWNER shall compensate the CONTRACTOR for the Construction Phase services pursuant to
provisions of the OWNER'S Construction General Conditions and the following: CONTRACTOR'S
General Conditions and fees proposed, Attachment 2.
5.1 COMPENSATION
5.1.1 For the CONTRACTOR'S performance of the Work as described in Part 2.3, the OWNER shall
pay the CONTRACTOR the Contract Sum consisting of the Cost of the Work For Construction Phase as
defined in Article 6, plus the CONTRACTOR'S fee as a separate line item to be included in the GMP.
Profit shall be a reasonable representation of the complexity of the work to be performed, the risk borne by
the CONTRACTOR, the amount of subcontracting requires, the quality of the CONTRACTOR'S record
of past performances, and the industry profit rates in the surrounding geographical area for similar work.
The CONTRACTOR shall provide a schedule of values for their general conditions fee, breaking out start-
up costs as well a monthly operational cost. The CONTRACTOR shall be compensated based on the status
of the Work in the construction timeline.
5.2 GUARANTEED N A30AH M PRICE
5.2.1 The sum of the Cost of the Work and the CONTRACTOR'S Fee are guaranteed by the
CONTRACTOR not to exceed the amount to be provided in Amendment No.1, as per Part 2.2, subject to
additions and deductions by changes in the Work as provided in the Contract Documents. Such maximum
sum as adjusted by approved changes in the Work (Change Orders) is referred to in the Contract Documents
as the Guaranteed Maximum Price (GMT). Costs which would cause the GMT to be exceeded shall be
paid by the CONTRACTOR without reimbursement by the OWNER.
5.3 CHANGES IN THE WORK
-21-
5.3.1 Adjustments to the GMT on account of changes in the Scope of Work subsequent to the execution
of Amendment No.1 may be determined by any of the methods listed in Attachment 1.
5.3.2 In calculating adjustments to subcontracts the terms "cost" and "fee" shall have the meanings
assigned to them in that document and shall not be modified by this Article 5. Adjustments to subcontracts
or contracts with trade contractors awarded with the OWNER'S prior consent on the basis of cost plus a
fee shall be calculated in accordance with the terms of those subcontracts.
5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above -
referenced provisions of Attachment 1 shall mean the Cost of the Work actually incurred by the
CONTRACTOR as defined in Article 6 of this Agreement and the term "and a reasonable allowance for
overhead and profit" shall mean the CONTRACTOR's Fee as defined in Subparagraph 5.1.1 of this
Agreement.
ARTICLE 6
COST OF THE WORK FOR CONSTRUCTION PHASE
6.1 COSTS TO BE REL%IBURSED
6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the CONTRACTOR in the
proper performance of the Work in substantial compliance with this Agreement and the Contract
Documents. Such costs shall be at rates not higher than those customarily paid at the place of the Work
except with prior written consent of the OWNER. The Cost of the Work shall include only the items set
forth in this Article 6 ("Cost of the Work"). Costs to be reimbursed shall include:
6.1.2 LABOR COSTS
Labor Costs shall include:
6.1.2.1 That portion of wages of construction workers employed by the CONTRACTOR in the
proper, direct performance of the Work at the Work site.
6.1.2.2 The portion of wages or salaries of the CONTRACTOR'S supervisory and administrative
personnel when stationed at the Work site with the OWNER'S agreement. The portion of
wages and salaries of the CONTRACTOR'S Work Manager directly attributable to the
Work shall be included in the Cost of the Work.
6.1.2.3 Wages and salaries of the Construction Manager's supervisory or administrative personnel
engaged, at factories, workshops, or on the road, in expediting the production or
transportation of materials or equipment required for the Work, but only for that portion of
their time required for the Work.
6.1.2.4 Costs paid or incurred by the CONTRACTOR for employee related taxes, insurance,
contributions, assessment, and benefits required by law or collective bargaining
agreements, provided that such costs are based on wages and salaries included in the Cost
of the Work under Clauses 6.1.2.1 through 6.1.2.3.
6.1.3 SUBCONTRACT AND TRADE CONTRACTOR COSTS
Payments made by the CONTRACTOR to Subcontractors and trade contractors in accordance with the
requirements of the subcontracts and trade contractor contracts for work performed in substantial
compliance with this Agreement and the Contract Documents.
-22-
6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
Costs incurred by the CONTRACTOR for materials and equipment actually incorporated into the
completed construction of the Work.
6.1.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to
be incorporated in the completed construction.
6.1.4.2 Costs of materials described in the preceding Clause 6.1.4.1 in excess of those actually
installed but required to provide reasonable allowance for waste and for spoilage. Unused
excess materials, if any, shall be sold by the CONTRACTOR; and amounts realized from
such sales shall be credited to the OWNER as a deduction from the Cost of the Work.
6.1.5 COSTS
6.1.5.1 Costs incurred relating to transportation, installation, maintenance, dismantling and
removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools
(collectively "supplies and equipment") not customarily owned by the construction
workers, which are provided by the CONTRACTOR at the site and fully consumed in the
performance of the Work; and cost of supplies and equipment newly acquired by the
CONTRACTOR for the Work, less a salvage value on such items if not fully consumed,
as agreed to by the OWNER and CONTRACTOR, whether sold to others or retained by
the CONTRACTOR. Cost for items previously used by the CONTRACTOR shall mean
fair market value in used condition.
6.1.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not
customarily owned by the construction workers, which are provided by the
CONTRACTOR at the site, whether rented from the CONTRACTOR or others, and costs
of transportation, installation, minor repairs and replacements, dismantling, and removal
thereof. Rates and quantities of equipment rented shall be subject to the OWNER'S prior
written approval.
6.1.5.3 Costs of removal of debris from the site.
6.1.5.4 Reproduction costs, costs of facsimile transmissions and long-distance telephone calls,
postage and express delivery charges, telephone service at the site excluding cell phone
costs, and reasonable receipted petty cash expenses of the site office.
6.1.5.5 That portion of the reasonable travel and subsistence expenses of the CONTRACTOR'S
personnel incurred while traveling in discharge of duties connected with the Work.
6.1.6 MISCELLANEOUS COSTS
6.1.6.1 Sales, use, or similar taxes imposed by a governmental authority which are related to the
Work and for which the CONTRACTOR is liable.
6.1.6.2 Fees and assessments for the building permit and for other permits, licenses, and
inspections for which the CONTRACTOR is required by the Contract Documents to pay.
6.1.6.3 Fees of testing laboratories for tests required by the Contract Documents, except those
related to nonconforming work other than that for which payment is permitted by Clause
6.1.8.2.
-23-
6.1.6.4 Startup services as per 6.1 General Conditions.
6.1.6.5 Costs of professional engineers and/or other costs permitted under the General Conditions
in Attachment 1.
6.1.7 OTHER COSTS
Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by
the OWNER.
6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED WORK
The Cost of the Work shall also include costs described in Subparagraph 6.1.1 which are incurred by the
CONTRACTOR:
6.1.8.1 In taking action to prevent threatened damage, injury, or loss in case of an emergency
affecting the safety of persons and property, as provided in Attachment 1.
6.1.8.2 In repairing or correcting damaged Work executed by the CONTRACTOR or the
CONTRACTOR'S Subcontractors or suppliers, provided that such damaged Work was not
caused by the negligence or failure to fulfill a specific responsibility to the OWNER of the
CONTRACTOR or the CONTRACTOR'S foremen, engineers, or superintendents, or
other supervisory, administrative, or managerial personnel of the CONTRACTOR, set
forth in this Agreement, or the failure of the CONTRACTOR'S personnel to supervise
adequately the Work of the Subcontractors or suppliers, and only to the extent that the cost
of repair or correction is not recoverable by the CONTRACTOR from insurance,
subcontractors, or suppliers.
6.1.9 The costs described in Subparagraphs 6.1.1 through 6.1.8 shall be included in the Cost of the Work
notwithstanding any provision of Attachment 1, OWNERS Construction General Conditions, or other
Conditions of the Contract which may require the CONTRACTOR to pay such costs, unless such costs are
excluded by the provisions of Paragraph 6.2.
6.1.10 In the event of conflict and or inconsistency between this document and the Attachment 1,
OWNER'S General Construction Conditions, the provisions in this document shall control.
6.2 COSTS NOT TO BE REIMBURSED
Costs not to be reimbursed by OWNER include:
6.2.1 The Cost of the Work shall not include:
6.2.1.1 Salaries and other compensation of the CONTRACTOR'S personnel stationed at the
CONTRACTOR'S principal office or offices other than the Work site office, except as
specifically provided in Clauses 6.1.2.2 and 6.1.2.3.
6.2.1.2 Expenses of the CONTRACTOR'S principal office and offices other than the Work site
office except as specifically provided in Part 6.1.
6.2.1.3 Overhead and general expenses, except as may be expressly included in Part 6.1.
-24-
6.2.1.4 The CONTRACTOR'S capital expenses, including interest on the CONTRACTOR'S
capital employed for the Work.
6.2.1.5 Rental costs of machinery and equipment, except as specifically provided in Subparagraph
6.1.5.2.
6.2.1.6 Costs due to the negligence of the CONTRACTOR or to the failure of the CONTRACTOR
to fulfill a specific responsibility to the OWNER set forth in this Agreement.
6.2.1.7 Costs incurred in the performance of Preconstruction Phase Services.
6.2.1.8 Except as provided in Clause 6.1.7, any cost not specifically and expressly described in
part 6.1.
6.2.1.9 Any cost which would cause the GMT to be exceeded.
6.3 DISCOUNTS. REBATES AND REFUNDS
6.3.1 All refunds, discounts, rebates premiums, or other credits received by the CONTRACTOR, and
amounts received from sales of surplus materials and equipment shall accrue to the benefit of the OWNER.
6.3.2 Amounts which accrue to the OWNER in accordance with the provisions of this Subparagraph
shall be credited to the OWNER as a deduction from the Cost of the Work.
6.4 ACCESS TO RECORDS AND REPORTS
The CONTRACTOR must maintain an acceptable cost accounting system. The CONTRACTOR agrees
to provide the sponsor, the Federal Aviation Administration, and the Comptroller General of the United
States or any of their duly authorized representatives, access to any books, documents, papers, and
records of the CONTRACTOR, which are directly pertinent to the specific contract for the purpose of
making audit, examination, excerpts and transcriptions. The CONTRACTOR agrees to maintain all
books, records and reports required under this contract for a period of not less than three years after final
payment is made and all pending matters are closed.
ARTICLE 7
CONSTRUCTION PHASE
7.1 PROGRESS PAYMENTS
7.1.1 Based upon Applications for Payment submitted to the Architect by the CONTRACTOR and
Certificates for Payment issued by the Architect, the OWNER shall make progress payments on account of
the Contract Price to the CONTRACTOR as provided below and elsewhere in the Contract Documents.
7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the
last day of the month, or as follows:
7.1.3 Applications for Payment accompanied with required supporting documentation shall be payable
as provided at Section 4.2.1 "Payments" herein above.
7.1.4 With each Application for Payment, the CONTRACTOR shall make available upon request by the
OWNER or Architect payrolls, petty cash accounts, receipted invoices or invoices with check vouchers
attached, and any other evidence required by the OWNER or Architect to demonstrate that cash
-25-
disbursements already made by the CONTRACTOR on account of the Cost of the Work equal or exceed
(1) progress payments already received by the CONTRACTOR; less (2) that portion of those payments
attributable to the CONTRACTOR's Fee; plus (3) payrolls for the period covered by the present Application
for Payment.
7.1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by
the CONTRACTOR in accordance with the Contract Documents. The schedule of values shall allocate the
entire GMP among the various portions of the Work, except that the CONTRACTOR'S Fee shall be shown
as a single separate item. The schedule of values shall be prepared in such form and supported by such data
to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect,
shall be used as a basis for reviewing the CONTRACTOR's Applications for Payment.
7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of
the end of the period covered by the Application for Payment. The "percentage completion" shall be the
lesser of (1) the percentage of that portion of the Work which has actually been completed or (2) the
percentage obtained by dividing (a) the expense which has actually been incurred by the CONTRACTOR
on account of that portion of the Work for which the CONTRACTOR has made or intends to make actual
payment prior to the next Application for Payment by (b) the share of the GMT allocated to that portion of
the Work in the schedule of values. In no event shall the payment obligation of the OWNER for cost of the
Work on the Construction Stage exceed the percentage of completion times the GMP.
7.1.7 Subject to the other provisions of the Contract Documents, and at a total value not to exceed the
GMP, the amount of each progress payment shall be computed as follows:
7.1.7.1 Take that portion of the GMT properly allocable to completed Work as determined by
multiplying the percentage completion of each portion of the Work by the share of the
GMP allocated to that portion of the Work in the schedule of values. Pending final
determination of cost to the OWNER of changes in the Work, amounts not in dispute may
be included as provided in Attachment 1, even though the GMT has not yet been adjusted
by Change Order.
7.1.7.2 Add that portion of the GMT properly allocable to materials and equipment delivered and
suitably stored at the site for subsequent incorporation in the Work or, if approved in
advance by the OWNER, suitably stored off the site at a location agreed upon in writing.
7.1.7.3 Add the CONTRACTOR'S fee, less retainage of five percent (5%). The CONTRACTOR'S
Fee shall be computed upon the Cost of the Work described in the two preceding Clauses
at the rate stated in Subparagraph 5.1.1 or, if the CONTRACTOR'S Fee is stated as a fixed
sum in that Subparagraph, shall be an amount which bears the same ratio to that fixed -sum
Fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of
the probable Cost of the Work upon its completion.
7.1.7.4 Subtract the aggregate of previous payments made by the OWNER.
7.1.7.5 Subtract the shortfall, if any, indicated by the CONTRACTOR in the documentation
required by Subparagraph 7.1.4 to substantiate prior Applications for Payment, or resulting
from errors subsequently discovered by the OWNER'S accountants in such documentation.
7.1.7.6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for
Payment as provided in Attachment 1.
7.1.8 Except with the OWNER'S prior written approval, payments to Subcontractors shall be subject to
IM�
retention of not less than Five Percent (5%). The OWNER and the CONTRACTOR shall agree upon a
mutually acceptable procedure for review and approval of payments and retention for subcontractors.
7.1.9 Except with the OWNER'S prior written approval, the CONTRACTOR shall not make advance
payments to suppliers for materials or equipment which have not been delivered at the site.
7.1.10 In taking action on the CONTRACTOR'S Applications for Payment, the Architect shall be entitled
to rely on the accuracy and completeness of the information furnished by the CONTRACTOR and shall
not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with Subparagraph 7.1.4 or other supporting
data; that the Architect has made exhaustive or continuous on -site inspections or that the Architect has made
examinations to ascertain how or for what purposes the CONTRACTOR has used amounts previously paid
on account of the Contract. Such examinations, audits and verifications, if required by the OWNER, will
be performed by the OWNER'S accountants acting in the sole interest of the OWNER.
7.1.11 In each Application for Payment, CONTRACTOR shall certify that such Application for Payment
represents a fair estimate of cost reimbursable to CONTRACTOR under the terms of Article 5 or Article 6,
supported by the documentation submitted in accordance with Subparagraph 7.1.4, or other supporting data.
7.1.12 The CONTRACTOR warrants that title to all Work covered by an Application for Payment will
pass to the OWNER at the time of payment. The CONTRACTOR further warrants that upon submittal of
an Application for Payment, all Work for which payments have been received from the OWNER shall be
free and clear of liens, claims, security interest, or other encumbrances in favor of the CONTRACTOR or
any other person or entity whatsoever.
7.1.13 The CONTRACTOR shall within fourteen (14) days following receipt of payment from the
OWNER pay all obligations that are due and owing for labor and materials performed and furnished by
others in connection with the construction, furnishing and equipping of the improvements and the
performance of the Work, and shall, if requested, provide the OWNER with evidence of such payment.
CONTRACTOR'S failure to make payments within such time shall constitute a material breach of this
contract. CONTRACTOR shall include a provision in each of its subcontracts imposing the same payment
obligations on its subcontractors and trade CONTRACTORs as are applicable to the CONTRACTOR
hereunder, and if the OWNER so requests, shall provide copies of such subcontractor or trade
CONTRACTOR payments to the OWNER. If the CONTRACTOR has failed to make payments that are
due and owing promptly to the CONTRACTOR'S subcontractors or for material or labor used in the Work
for which the OWNER has made payment to the CONTRACTOR, the OWNER shall be entitled to withhold
payment to the CONTRACTOR in part or in whole to the extent necessary to protect the OWNER as
determined in the sole discretion of OWNER.
7.1.14 If the Architect disapproves an Application for Payment (in whole or in part) the specific reasons
therefore (see 4.5 of the Attachment 1) shall be communicated in writing to CONTRACTOR within 20
days after submission of said application and the amount of money reasonably withheld for each such
reason shall be stated. The balance, if any, of any such Payment application shall be paid in a timely
manner.
7.2 FINAL PAYMENT
7.2.1 Final payment shall be made by the OWNER to the CONTRACTOR when (1) the Contract has been
fully performed by the CONTRACTOR except for the CONTRACTOR'S responsibility to correct
nonconforming work, as provided in Attachment 1, and to satisfy other requirements, if any, which
necessarily survive final payment; (2) a final Application for Payment and a final accounting for the Cost
of the Work shall be submitted by the CONTRACTOR to the Architect; and (3) a final Certificate for
-27-
Payment shall then been issued by the Architect in accordance with, and subject to, this Article; such final
payment shall be made by the OWNER not more than 30 days after the issuance of the Architect's Final
Certificate for Payment.
7.2.2 The amount of the final payment shall be calculated as follows:
7.2.2.1 Take the sum of the Cost of the Work substantiated by the CONTRACTOR'S final
accounting and the CONTRACTOR'S Fee; but not more than the GMT.
7.2.2.2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a final
Certificate for Payment as provided in Attachment 1 or other provisions of the Contract
Documents.
7.2.2.3 Subtract the aggregate of previous payments made by the OWNER.
7.2.2.4 If the aggregate of previous payments made by the OWNER exceeds the amount due the
CONTRACTOR, the CONTRACTOR shall reimburse the difference to the OWNER.
7.2.3 Notwithstanding anything to the contrary herein, the OWNER shall only hold such sums following
Substantial Completion as are deemed reasonably necessary to protect the OWNER from the consequences
of defective work, incomplete work, and notice of unpaid claims from subcontractors, trade contractors,
and suppliers and/or the requirements of Texas law. If in the event an audit conducted by the OWNER
reveals that sums have been improperly paid to the CONTRACTOR, such sums shall be immediately
returned and/or repaid to the OWNER by the CONTRACTOR within ten (10) days of the demand by
OWNER.
7.2.4 If the OWNER'S accountants or auditor report the Cost of the Work as substantiated by the
CONTRACTOR'S final accounting to be less than claimed by the CONTRACTOR, the CONTRACTOR
shall be entitled to proceed in accordance with Section 9.1 "RESOLUTION OF CONTRACT DISPUTES",
without a further decision of the Architect. Pending a final resolution of the disputed amount, the OWNER
shall pay the CONTRACTOR the amount certified in the Architect's final Certificate for Payment.
7.2.5 When all of the Work is completed and is ready for a final inspection, the CONTRACTOR shall
notify the OWNER and the Architect thereof in writing. Thereupon, the Architect will make final inspection
of the Work and, if the Work is complete in full accordance with this Contract, the Architect will promptly
issue a final Certificate for Payment certifying to the OWNER that the Work is complete, and the
CONTRACTOR is entitled to the remainder of the unpaid Contract Price, less any amount withheld
pursuant to this Contract. A Final Requisition for the Disbursement of Work Costs accompanied by the
Architect's Certificate and Affidavit and Waivers of Lien required of the CONTRACTOR under paragraph
7.2.8 below shall accompany the Final Application for Payment. If the Architect is unable to issue its Final
Certificate for Payment, the specific reasons therefore shall be given in writing to the CONTRACTOR
along with the reasonable sum held for each such reason, and if the Architect is required to repeat its final
inspection of the Work, the CONTRACTOR shall bear the cost of such repeat final inspection(s) which
cost may be deducted by the OWNER from the CONTRACTOR'S final payment.
7.2.6 The CONTRACTOR shall not be entitled to final payment unless and until it submits to the
Architect (a) its affidavit that the payrolls, invoices for materials and equipment, and other liabilities
connected with the Work for which the OWNER, or the OWNERS property might be responsible for, have
been fully paid or otherwise satisfied; (b) releases and waivers of liens (excluding retainage) from first tier
Subcontractors of the CONTRACTOR and of any and all other parties required by the Architect or the
OWNER; and (c) consent of Surety, if any, to final payment. If any third party fails or refuses to provide
a release of claims or waiver of lien as required by OWNER, the CONTRACTOR shall furnish a bond
satisfactory to the OWNER to discharge any such lien or indemnify the OWNER from liability.
7.2.7 Acceptance of final payment shall constitute a waiver of all claims against the OWNER by the
CONTRACTOR except for those claims previously made in writing against the OWNER by the
CONTRACTOR, pending at the time of final payment, and identified in writing by the CONTRACTOR as
unsettled at the time of its request for final payment.
7.3 LIEN PRIORITIES
7.3.1 The CONTRACTOR shall keep OWNER and OWNER'S property free from all mechanic's and
materialman's liens and all other liens and claims, legal or equitable. In the event any such lien or claim is
timely filed by any one claiming by, through or under CONTRACTOR, the CONTRACTOR shall
discharge the same within a reasonable time, unless the lien or claim results from OWNER'S unreasonable
withholding or failure to make timely payment.
7.4 TIME OF COMPLETION AND LIQUIDATED DAMAGES
7.4.1 It is understood and mutually agreed by and between the Construction Manager and OWNER
that the date of beginning and the time for completion of the Work are essential conditions of this
Agreement. The CONTRACTOR agrees that the Work will be prosecuted regularly and diligently at such
rate of progress as will insure full completion thereof within the time frame set forth in Amendment No.
1.
7.4.2 CONTRACTOR agrees that the Contract Time, i.e. the period for Substantial Completion of the
Work shall be determined and agreed upon simultaneously with the agreement as to the GMP as provided
in Part 2.2. The Contract Time includes the number of days that Work is anticipated to be delayed due to
inclement weather and/or unworkable conditions.
7.4.3 For the purposes of this Agreement, a calendar day constitutes twenty-four (24) hours of time and
is any one of seven days of a week, including Saturday, Sunday, and Holidays, regardless of whether a
"working day" or not, weather conditions, or any condition or situation which may delay construction.
7.4.4 The Contract Time may be extended as provided in Attachment 1.
7.4.5 The basis for completion under this part 7.4 will be Substantial Completion as defined in
Attachment 1.
7.4.6 If, after execution of the Certificate of Substantial Completion, the CONTRACTOR fails to fully
complete items found incomplete or deficient during a final inspection within thirty (30) calendar days or
fails to provide specified Work close-out documents within thirty (30) calendar days, then the remaining
retainage - including allowances for incomplete work - may be retained by OWNER and at OWNER'S sole
discretion, may be applied toward completion of the Work by OWNER, or may be disbursed after all such
defective items are remedied and all close-out data is received, and such shall not be deemed a waiver of
any other right or remedy of OWNER under this Agreement, at law or in equity.
7.4.7 Liquidated Damages. CONTRACTOR agrees that shall CONTRACTOR neglect, fail, or refuse
to complete substantially or cause the failure of Substantial Completion of any part of the Work within the
Contract time or any proper extension thereof granted by the OWNER, then the CONTRACTOR does
hereby agree to pay the OWNER the sum of TWO THOUSAND FIVE HUNDRED AND NO/100
DOLLARS ($2,500.00) per day, not as a penalty but as liquidated delay damages for each and every
calendar day following the Contract Time or proper extension thereof that Substantial Completion of the
Work has not been achieved. OWNER and CONTRACTOR agree and stipulate that it is difficult to fix the
K!I
actual delay damage sustained by the OWNER in this scenario. However, the said amount is fixed and
agreed upon by CONTRACTOR and the OWNER as a reasonable estimate of the actual amount of delay
damages which the OWNER would sustain in such a case. The parties agree that liquidated delay damages
specified herein shall be the sole measure of delay damages if and in the event Substantial Completion is
not achieved as required by this Agreement.
ARTICLE 8
INSURANCE AND BONDS
8.1 INSURANCE REOUIRED OF THE CONTRACTOR
During both phases of the Work, the CONTRACTOR shall purchase and maintain insurance as set forth
herein. Such insurance shall be written for not less than the following limits as set forth below:
8.1.1 The CONTRACTOR must provide the OWNER with certificates of insurance prior to beginning
work on the Work. Each certificate of insurance must include the Work name. The certificates are to be
approved by OWNER and Architect before work commences. The certificates of coverage must be signed
by a person authorized by the insurer to bind coverage on its behalf. The certificates must contain enough
detail to allow the OWNER to confirm that the following requirements have been fulfilled by the OWNER's
insurance coverage. OWNER reserves the right to require complete, certified copies of insurance policies
at any time. CONTRACTOR shall name the OWNER and Architect as additional insureds on the
Commercial General Liability, Commercial Automobile Liability, and Commercial Umbrella Liability
policies and such insurance shall be primary to any other insurance. Approval of the certificates or policies
by the OWNER does not relieve the CONTRACTOR of its duty of indemnification.
If the coverage period shown on the current certificate of coverage ends during the duration of the Work,
the CONTRACTOR shall, prior to the end of the coverage period, provide a new certificate of coverage
showing extension of the coverage.
8.1.2 The required limits of insurance coverage may be satisfied by any combination of primary, excess,
or umbrella liability insurance coverage, provided the primary policy complies with the requirements
detailed below and the excess/umbrella policies are written on a "following form" basis. The
CONTRACTOR may maintain reasonable deductibles, subject to approval by the OWNER. The required
limits of insurance do not establish a limit on the CONTRACTOR'S liability.
8.1.2.1 Commercial General Liability insurance at minimum limits: $1,000,000.00 combined
single limit per occurrence for bodily injury, personal injury, and property damage.
The general aggregate limit shall apply separately to this Work or shall be equal to or
greater than $4,000,000.00. Coverage must be written on an occurrence form of policy
and must include coverage for premises liability, products liability, completed operations,
explosion, collapse, independent CONTRACTORS liability, fire, legal liability ($50,000
limit), and underground property damage. Coverage for products/completed operations
must be maintained for at least ten (10) years after the Work is completed. Contractual
liability must be maintained with respect to the CONTRACTOR'S obligations in this
agreement.
8.1.2.2 Workers' compensation insurance at statutory limits, including Employers Liability at
minimum limits of $1,000,000 bodily injury by accident, $500,000 by disease, aggregate.
Additional requirements are provided in Paragraph 8.1.5
8.1.2.3 Commercial Automobile Liability insurance at minimum combined single limits of
-30-
$1,000,000 per accident, as respects all owned, non -owned, and hired vehicles.
8.1.3 Each required insurance policy shall:
8.1.3.1 Waive all rights of subrogation against the OWNER for losses arising from Work
performed by the CONTRACTOR for the OWNER;
8.1.3.2 Require the insured to immediately notify the OWNER of any material change in the
insurance coverage;
8.1.3.3 Provide the OWNER with 30 day notice of cancellation, non -renewal, or termination of
insurance by return receipt mail (10 days as respects non-payment of premium);
8.1.3.4 Be written by an insurer that is licensed to do business in Texas, classified by the Texas
Department of Insurance as an "admitted" insurer, and maintains and A.M. Best rating of
A/VH or better throughout the Work until the OWNER has accepted the work;
8.1.3.5 Be written on forms that have been filed and approved by the Texas Department of
Insurance;
8.1.3.6 Be primary and non-contributory insurance as respects OWNER, its officers, elected
officials, employees, agents, and representatives. Any insurance maintained by OWNER
will be in excess of CONTRACTOR'S insurance and will not contribute to it;
8.1.3.7 Apply separate to each insured against whom a claim is made or suit brought, except with
respect to the limits of the insurer's liability;
8.1.3.8 Be maintained from the time Work commences until services are completed and accepted
by OWNER; and,
8.1.3.9 Must not contain any special limitations on the scope of coverage provided to the OWNER,
its officers, elected officials, employees, agents, and representatives.
8.1.4 The CONTRACTOR shall include all contractors, subcontractors and trade contractors as insureds
under its policies or furnish OWNER separate certificates for each contractor, subcontractor, and trade
contractor. All coverage required of contractors, subcontractors, and trade contractors shall be subject to
all of the insurance requirements detailed above except each contractor, subcontractor, and trade
contractor's general aggregate limit on Commercial General Liability shall be not less than $1,000,000.00.
The requirements of the Commercial Umbrella coverage do not apply to the contractors, subcontractors,
and trade contractors.
8.1.5 Builders Risk Insurance Requirement
The Contractor shall purchase and maintain Builders Risk Insurance with limits that are at all times
sufficient to cover the value of the exposure. The policy should be written to cover the interests of the
Owner, the Contractor, subcontractors, trade contractors, and all subcontractors. Further, the policy
shall:
8.1.5.1 Stipulate that the insurer will not seek recovery, through subrogation or otherwise, against
any insured (even if their negligence causes a covered loss), regardless of the extent of the
insured's insurable interest.
-31-
8.1.5.2 Be written on an "all-risk" basis, and shall provide coverage for fire, extended coverage and
physical loss or damage including theft, vandalism, malicious mischief, collapse, sewer
backup, seepage, hydrostatic testing, pneumatic testing, mechanical testing and normal
settling.
8.1.5.3 Apply to foundations, false work, temporary buildings, and debris removal including
demolition occasioned by enforcement of applicable legal requirements.
8.1.5.4 Provide coverage for consequential damage ensuing from faulty workmanship, material,
construction, or design (resulting damage only, not cost of making good the workmanship).
8.1.5.5 Be maintained until the Owner has accepted the Project as completed or until no one other
than the Owner has an insurable interest in the Project.
8.1.5.6 Cover portions of property stored off -site (after written approval of the Owner) at the value
established by the Owner and portions of the work in transit.
8.1.6 State Mandated Workers' Compensation Insurance Requirements
8.1.6.1 Definitions (applicable to Paragraph 8.1.5)
a. Certificate of Coverage ("certificate") - A copy of a certificate of insurance or a
certificate of authority to self -insure issued by the Texas Department of Insurance
Division of Workers' Compensation (Workers' Compensation) showing statutory
workers' compensation insurance coverage for the persons or entities' employees,
executives, officers, partners, and proprietors providing services on the Work, for
the duration of the Work.
b. Duration of the Work - Includes the time from the beginning of the Work on the
Work until the CONTRACTOR'S work on the Work has been completed and
accepted by OWNER.
C. Persons providing services on the Work ("subcontractor" in 406.096 of the Texas
Labor Code). Includes all persons or entities performing all or part of the services
the CONTRACTOR had undertaken to perform on the subject, regardless of
whether the person contracted directly with the CONTRACTOR and regardless
that person has employees. This includes, without limitation, independent
contractors, subcontractors, motor carriers, owner -operators, employees,
executives, officers, partners, and proprietors of any such entity, trade contractors,
or employees of any entity, which furnishes persons to provide services on the
Work.
d. Services - Include, without limitation, providing, hauling, or delivering equipment
or materials, or providing labor, transportation, or other service related to the
Work.
8.1.6.2 The CONTRACTOR shall provide workers' compensation insurance coverage, based on
proper reporting of classification codes and payroll amounts and filing of any coverage agreements,
which meet the statutory requirements of the Texas Labor Code (401.011 (44)) for all employees
of the CONTRACTOR providing services on the Work, for the duration of the Work.
-32-
8.1.6.3 The CONTRACTOR must provide a certificate of coverage to OWNER prior to execution
of this Agreement.
8.1.6.4 If the coverage period shown on the CONTRACTOR'S current certificate of coverage ends
during the duration of the Work, the CONTRACTOR must, prior to the end of the coverage period,
file a new certificate of coverage with OWNER showing that coverage has been extended.
8.1.6.5 The CONTRACTOR shall obtain from each providing services on the Work, and provide
to OWNER:
a. A certificate of coverage, prior to that person beginning performance on the Work,
so OWNER will have on file certificates of coverage showing coverage for all
persons providing services on the Work; and,
b. No later than seven days after receipt by the CONTRACTOR, a new certificate
showing extension of the coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the Work.
8.1.6.6 The CONTRACTOR shall retain all required certificates of coverage for the duration of
the Work and for three years thereafter.
8.1.6.7 The CONTRACTOR shall notify OWNER 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 the coverage of any person providing services on the Work.
8.1.6.8 The CONTRACTOR shall post on the Work site a notice, in the text, form and manner
prescribed by the Workers' Compensation, informing all persons providing services on the Work
that they are required to be covered, and stating how a person may verify coverage and report lack
of coverage.
8.1.6.9 The CONTRACTOR shall contractually require each person with whom it contracts to
provide services on the Work, to:
a. Provide coverage, based on proper reporting of classification codes and payroll
amounts and filing of any coverage agreements, which meet the statutory
requirements of the Texas Labor Code [401.011 (44)] for all employees of the
CONTRACTORS, Subcontractors, and Trade contractors providing services on
the Work, for the duration of the Work;
b. Provide to the CONTRACTOR, prior to that person beginning performance on the
Work, a certificate of coverage showing that coverage is being provided for all
employees of the person providing services on the Work, for the Duration of the
Work.
C. Provide the CONTRACTOR, prior to the end of the coverage period, a new
certificate of coverage showing extension of the coverage, if the coverage period
shown on the current certificate of coverage ends during the Duration of the Work.
d. Obtain from each other person with whom it contracts, and provide to the
OWNER:
-33-
(i) A certificate of coverage, prior to the other person beginning performance
on the Work;
(ii) A new certificate of coverage showing extension of the coverage, if the
coverage period shown on the current certificate of coverage ends during
the duration of the Work;
(iii) Retain all required certificates of coverage on file for the duration of the
Work and for three years thereafter;
(iv) Notify OWNER 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 the coverage of any person
providing services on the Work; and,
(v) Contractually require each person with whom it contracts to perform as
required by clauses (i)-(iv) of this subparagraph, with certificates of
coverage, to be provided to the person for whom they are providing
services.
e. The CONTRACTOR'S failure to comply with any of the provisions of Paragraph
8.1.5 is a breach of contract by the CONTRACTOR which entitles OWNER to
declare this Agreement void if the CONTRACTOR does not remedy the breach
within ten (10) days after notice of breach from OWNER.
8.2 PERFORMANCE BOND AND PAYMENT BOND
8.2.1 CONTRACTOR shall furnish bonds in accordance with Chapter 2253 of the Texas Government
Code. The Performance and Payment Bonds required by this Article may be in one or separate instruments
in accordance with local law. Surety companies must be licensed to do business in the State of Texas. All
Payment and Performance Bonds provided by CONTRACTOR or any subcontractor shall comply with the
requirements of Article 7.19-1 of the Texas Insurance code. The amount of each bond provide by
CONTRACTOR shall be equal to One Hundred Percent (100%) of the GMT. The CONTRACTOR has
provided or will provide Performance and Payment bonds and shall be delivered to OWNER when a GMP
is established through Amendment Number 1.
8.2.2 All bonds will be reviewed by the Architect for compliance with the Contract Documents prior to
execution of the contract and/or commencement of construction activities. In the event that the Architect
has any questions concerning the sufficiency of the bonds, the bonds will be referred to the OWNER or the
OWNER'S representative for review and decision.
8.2.3 All bonds shall be originals. The CONTRACTOR shall require the attorney -in -fact who executes
the required bonds on behalf of the surety to affix thereto a certified and current copy of the Power -of -
Attorney. The name, address, and telephone number of a contact person for the bonding company shall be
provided.
8.2.4 Upon the request in writing of any person or entity appearing to be a potential beneficiary of bonds
covering payment of obligations arising under this Agreement, the CONTRACTOR shall promptly furnish
a copy of the bonds or shall permit a copy to be made.
-34-
8.2.5 Bonds shall be signed by an agent resident in the State of Texas and the date of the bond shall be
the date of the execution of this Agreement and/or commencement of construction activities. If at any time
during the continuance of this Agreement the surety of the CONTRACTOR's bonds becomes insolvent,
OWNER shall have the right to require additional and sufficient sureties which the CONTRACTOR shall
furnish to the satisfaction of the OWNER within thirty (30) days after notice to do so. In default thereof,
the CONTRACTOR may be suspended and all payment or money due to the CONTRACTOR withheld.
8.2.6 The CONTRACTOR shall deliver the required bonds to the OWNER within 10 days of the
acceptance of this Agreement by OWNER.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 RESOLUTION OF CONTRACT DISPUTES.
CONTRACTOR understands and agrees that all disputes between CONTRACTOR and OWNER based
upon an alleged violation of the terms of this Agreement by the OWNER shall be submitted to the City
Manager for his resolution, prior to CONTRACTOR being entitled to seek judicial relief in connection
therewith. In the event that the amount of compensation in dispute hereunder exceeds $50,000.00, the City
Manager's decision shall be approved or disapproved by the City Council. CONTRACTOR shall not be
entitled to seek judicial relief unless: (i) CONTRACTOR has first received City Manager's written
decision, approved by the City Council if the amount of compensation hereunder exceeds $50,000.00; or
(ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the
dispute, accompanied by all supporting documentation (90 days if City Manager's decision is subject to
City Council approval); or (iii) OWNER has waived compliance with the procedure set forth in this section
by written instruments, signed by the City Manager.
9.2 LIABILITY
Before OWNER shall be liable to CONTRACTOR or any of its successors or assigns for any alleged breach
of this Agreement, notice must first be given OWNER within six (6) months of the date the breach is alleged
by CONTRACTOR to have occurred.
9.3 OTHER PROVISIONS
9.3.1 EQUAL OPPORTUNITY
During the performance of this contract, the CONTRACTOR agrees as follows:
(1) The CONTRACTOR will not discriminate against any employee or applicant for employment because
of race, color, religion, sex, or national origin. The CONTRACTOR will take affirmative action to ensure
that applicants are employed, and that employees are treated during employment without regard to their
race, color, religion, sex, sexual orientation, gender identify or national origin. Such action shall include,
but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection
for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places, available
to employees and applicants for employment, notices to be provided setting forth the provisions of this
nondiscrimination clause.
(2) The CONTRACTOR will, in all solicitations or advertisements for employees placed by or on behalf
of the CONTRACTOR, state that all qualified applicants will receive considerations for employment
without regard to race, color, religion, sex, or national origin.
-35-
(3) The CONTRACTOR will send to each labor union or representative of workers with which he has a
collective bargaining agreement or other contract or understanding, a notice to be provided advising the
said labor union or workers' representatives of the CONTRACTOR'S commitments under this section, and
shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(4) The CONTRACTOR will comply with all provisions of Executive Order 11246 of September 24, 1965,
and of the rules, regulations, and relevant orders of the Secretary of Labor.
(5) The CONTRACTOR will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto,
and will permit access to his books, records, and accounts by the administering agency and the Secretary
of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(6) In the event of the CONTRACTOR'S noncompliance with the nondiscrimination clauses of this contract
or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended
in whole or in part and the CONTRACTOR may be declared ineligible for further Government contracts
or federally assisted construction contracts in accordance with procedures authorized in Executive Order
11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided
in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor,
or as otherwise provided by law.
(7) The CONTRACTOR will include the portion of the sentence immediately preceding paragraph (1) and
the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by
rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order
11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor.
The CONTRACTOR will take such action with respect to any subcontract or purchase order as the
administering agency may direct as a means of enforcing such provisions, including sanctions for
noncompliance: Provided, however, That in the event a CONTRACTOR becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering
agency the CONTRACTOR may request the United States to enter into such litigation to protect the
interests of the United States.
9.3.2 STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION
CONTRACT SPECIFICATIONS
1. As used in these specifications:
a. "Covered area" means the geographical area described in the solicitation from which this contract
resulted;
b. "Director" means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.
Department of Labor, or any person to whom the Director delegates authority;
c. "Employer identification number" means the Federal social security number used on the
Employer's Quarterly Federal Tax Return, U.S. Treasury Department Form 941;
d. "Minority" includes:
(1) Black (all) persons having origins in any of the Black African racial groups not of
Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or
-36-
other Spanish culture or origin regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the original peoples of
the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and
(4) American Indian or Alaskan native (all persons having origins in any of the original
peoples of North America and maintaining identifiable tribal affiliations through
membership and participation or community identification).
2. Whenever the CONTRACTOR, or any subcontractor at any tier, subcontracts a portion of the work
involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the
provisions of these specifications and the Notice which contains the applicable goals for minority and
female participation and which is set forth in the solicitations from which this contract resulted.
3. If the CONTRACTOR is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by
the U.S. Department of Labor in the covered area either individually or through an association, its
affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in
accordance with that Plan for those trades which have unions participating in the Plan. CONTRACTORS
shall be able to demonstrate their participation in and compliance with the provisions of any such
Hometown Plan. Each CONTRACTOR or subcontractor participating in an approved plan is individually
required to comply with its obligations under the EEO clause and to make a good faith effort to achieve
each goal under the Plan in each trade in which it has employees. The overall good faith performance by
other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered
contractor's or subcontractor's failure to take good faith efforts to achieve the Plan goals and timetables.
4. The CONTRACTOR shall implement the specific affirmative action standards provided in paragraphs
7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted
are expressed as percentages of the total hours of employment and training of minority and female
utilization the CONTRACTOR should reasonably be able to achieve in each construction trade in which it
has employees in the covered area. Covered construction CONTRACTORS performing construction work
in a geographical area where they do not have a Federal or federally assisted construction contract shall
apply the minority and female goals established for the geographical area where the work is being
performed. Goals are published periodically in the Federal Register in notice form, and such notices may
be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement
contracting officers. The CONTRACTOR is expected to make substantially uniform progress in meeting
its goals in each craft during the period specified.
5. Neither the provisions of any collective bargaining agreement nor the failure by a union with whom
the CONTRACTOR has a collective bargaining agreement to refer either minorities or women shall excuse
the CONTRACTOR'S obligations under these specifications, Executive Order 11246 or the regulations
promulgated pursuant thereto.
6. In order for the non -working training hours of apprentices and trainees to be counted in meeting the
goals, such apprentices and trainees shall be employed by the CONTRACTOR during the training period
and the CONTRACTOR shall have made a commitment to employ the apprentices and trainees at the
completion of their training, subject to the availability of employment opportunities. Trainees shall be
trained pursuant to training programs approved by the U.S. Department of Labor.
7. The CONTRACTOR shall take specific affirmative actions to ensure equal employment opportunity.
The evaluation of the CONTRACTOR'S compliance with these specifications shall be based upon its effort
to achieve maximum results from its actions. The CONTRACTOR shall document these efforts fully and
shall implement affirmative action steps at least as extensive as the following:
-37-
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all
sites, and in all facilities at which the CONTRACTOR'S employees are assigned to work. The
CONTRACTOR, where possible, will assign two or more women to each construction project. The
CONTRACTOR shall specifically ensure that all foremen, superintendents, and other onsite
supervisory personnel are aware of and carry out the CONTRACTOR'S obligation to maintain such
a working environment, with specific attention to minority or female individuals working at such
sites or in such facilities.
b. Establish and maintain a current list of minority and female recruitment sources, provide written
notification to minority and female recruitment sources and to community organizations when the
CONTRACTOR or its unions have employment opportunities available, and maintain a record of
the organizations' responses.
c. Maintain a current file of the names, addresses, and telephone numbers of each minority and
female off -the -street applicant and minority or female referral from a union, a recruitment source,
or community organization and of what action was taken with respect to each such individual. If
such individual was sent to the union hiring hall for referral and was not referred back to the
CONTRACTOR by the union or, if referred, not employed by the CONTRACTOR, this shall be
documented in the file with the reason therefore along with whatever additional actions the
CONTRACTOR may have taken.
d. Provide immediate written notification to the Director when the union or unions with which the
CONTRACTOR has a collective bargaining agreement has not referred to the CONTRACTOR a
minority person or female sent by the CONTRACTOR, or when the CONTRACTOR has other
information that the union referral process has impeded the CONTRACTOR' efforts to meet its
obligations.
e. Develop on-the-job training opportunities and/or participate in training programs for the area
which expressly include minorities and women, including upgrading programs and apprenticeship
and trainee programs relevant to the CONTRACTOR'S employment needs, especially those
programs funded or approved by the Department of Labor. The CONTRACTOR shall provide
notice of these programs to the sources compiled under 7b above.
f. Disseminate the CONTRACTOR'S EEO policy by providing notice of the policy to unions and
training programs and requesting their cooperation in assisting the CONTRACTOR in meeting its
EEO obligations; by including it in any policy manual and collective bargaining agreement; by
publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with
all management personnel and with all minority and female employees at least once a year; and by
posting the company EEO policy on bulletin boards accessible to all employees at each location
where construction work is performed.
g. Review, at least annually, the company's EEO policy and affirmative action obligations under
these specifications with all employees having any responsibility for hiring, assignment, layoff,
termination, or other employment decisions including specific review of these items with onsite
supervisory personnel such a superintendents, general foremen, etc., prior to the initiation of
construction work at any job site. A written record shall be made and maintained identifying the
time and place of these meetings, persons attending, subject matter discussed, and disposition of
the subject matter.
h. Disseminate the CONTRACTOR'S EEO policy externally by including it in any advertising in
the news media, specifically including minority and female news media, and providing written
-38-
notification to and discussing the CONTRACTOR'S EEO policy with other contractors and
subcontractors with whom the CONTRACTOR does or anticipates doing business.
i. Direct its recruitment efforts, both oral and written, to minority, female, and community
organizations, to schools with minority and female students; and to minority and female recruitment
and training organizations serving the CONTRACTOR'S recruitment area and employment needs.
Not later than one month prior to the date for the acceptance of applications for apprenticeship or
other training by any recruitment source, the CONTRACTOR shall send written notification to
organizations, such as the above, describing the openings, screening procedures, and tests to be
used in the selection process.
j. Encourage present minority and female employees to recruit other minority persons and women
and, where reasonable, provide after school, summer, and vacation employment to minority and
female youth both on the site and in other areas of a CONTRACTOR'S workforce.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41
CFR Part 60-3.
1. Conduct, at least annually, an inventory and evaluation at least of all minority and female
personnel, for promotional opportunities and encourage these employees to seek or to prepare for,
through appropriate training, etc., such opportunities.
m. Ensure that seniority practices, job classifications, work assignments, and other personnel
practices do not have a discriminatory effect by continually monitoring all personnel and
employment related activities to ensure that the EEO policy and the CONTRACTOR'S obligations
under these specifications are being carried out.
n. Ensure that all facilities and company activities are non -segregated except that separate or single
user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and
female construction contractors and suppliers, including circulation of solicitations to minority and
female contractor associations and other business associations.
p. Conduct a review, at least annually, of all supervisor's adherence to and performance under the
CONTRACTORS EEO policies and affirmative action obligations.
8. CONTRACTORS are encouraged to participate in voluntary associations, which assist in fulfilling one
or more of their affirmative action obligations (7a through 7p). The efforts of a contractor association, joint
contractor union, contractor community, or other similar groups of which the CONTRACTOR is a member
and participant, may be asserted as fulfilling any one or more of its obligations under 7a through 7p of these
specifications provided that the CONTRACTOR actively participates in the group, makes every effort to
assure that the group has a positive impact on the employment of minorities and women in the industry,
ensures that the concrete benefits of the program are reflected in the CONTRACTOR'S minority and female
workforce participation, makes a good faith effort to meet its individual goals and timetables, and can
provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the
CONTRACTOR. The obligation to comply, however, is the CONTRACTOR'S and failure of such a group
to fulfill an obligation shall not be a defense for the CONTRACTOR'S noncompliance.
9. A single goal for minorities and a separate single goal for women have been established. The
CONTRACTOR, however, is required to provide equal employment opportunity and to take affirmative
action for all minority groups, both male and female, and all women, both minority and non -minority.
-39-
Consequently, if the particular group is employed in a substantially disparate manner (for example, even
though the CONTRACTOR has achieved its goals for women generally,) the CONTRACTOR may be in
violation of the Executive Order if a specific minority group of women is underutilized.
10. The CONTRACTOR shall not use the goals and timetables or affirmative action standards to
discriminate against any person because of race, color, religion, sex, or national origin.
11. The CONTRACTOR shall not enter into any subcontract with any person or firm debarred from
Government contracts pursuant to Executive Order 11246.
12. The CONTRACTOR shall carry out such sanctions and penalties for violation of these specifications
and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing
subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its
implementing regulations, by the Office of Federal Contract Compliance Programs. Any CONTRACTOR
who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive
Order 11246, as amended.
13. The CONTRACTOR, in fulfilling its obligations under these specifications, shall implement specific
affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these
specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity.
If the CONTRACTOR fails to comply with the requirements of the Executive Order, the implementing
regulations, or these specifications, the Director shall proceed in accordance with 41 CFR 60-4.8.
14. The CONTRACTOR shall designate a responsible official to monitor all employment related activity
to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions
hereof as may be required by the Government, and to keep records. Records shall at least include for each
employee, the name, address, telephone number, construction trade, union affiliation if any, employee
identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice,
trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of
pay, and locations at which the work was performed. Records shall be maintained in an easily
understandable and retrievable form; however, to the degree that existing records satisfy this requirement,
CONTRACTORS shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of other laws which
establish different standards of compliance or upon the application of requirements for the hiring of local
or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community
Development Block Grant Program).
9.3.3 DEFINITIONS
Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in
Attachment 1, General Conditions of the Contract for Construction.
9.3.4 EXTENT OF CONTRACT
This Contract, which includes this Agreement and the other documents incorporated herein by reference,
represents the entire and integrated agreement between the OWNER and CONTRACTOR and supersedes
all prior negotiations, representations, or agreements, either written or oral. This Agreement may be
amended only by written instrument signed by both the OWNER and CONTRACTOR. If anything in any
document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall
govern.
9.3.5 OWNERSMP AND USE OF DOCUMENTS
-40-
The Drawings, Specifications, and other documents prepared by the Architect, and copies thereof furnished
to the CONTRACTOR, are for use solely with respect to this Work. They are not to be used by the
CONTRACTOR, subcontractors, sub -subcontractors, trade contractors or suppliers on other projects, or
for additions to this Work outside the scope of the Work, without the specific written consent of the
OWNER. The CONTRACTOR, subcontractors, sub -subcontractors, trade contractors, and suppliers are
granted a limited license to use and reproduce applicable portions of the Drawings, Specifications, and other
documents prepared by the Architect appropriate to and for use in the execution of their Work under the
Contract Documents.
9.3.6 GOVERNING LAW
The Contract shall be governed by the law of the State of Texas.
9.3.7 ASSIGNMENT
The OWNER and CONTRACTOR respectively bind themselves, their partners, successors, assigns, and
legal representatives to the other party hereto and to partners, successors, assigns, and legal representatives
of such other party in respect to covenants, agreements, and obligations contained in the Contract
Documents. Neither party to the contract shall assign the Contract as a whole without written consent of
the other. If either party attempts to make such an assignment without such consent, that party shall
nevertheless remain legally responsible for all obligations under the Contract.
9.3.8 VENUE
Venue shall be in Lubbock County, Texas.
9.3.9 WARRANTY
The CONTRACTOR agrees to continue to serve as the point of contact for warranty purposes for a period
of time not less than one (1) year. This service will be at no additional fee. The CONTRACTOR'S duties
during this period will be to serve as the OWNER'S representative in contacting the appropriate contractors,
subcontractors, trade contractors, or suppliers for their warranty obligations and taking such steps as
necessary to ensure that the warranty obligations are complied with.
9.3.10 AMENDMENT
This Agreement, representing the entire Agreement between the parties may be amended or supplemented
by mutual agreement of the parties hereto in writing and executed by each party. The amendment or
supplementation shall be in writing attached and incorporated in this Agreement.
9.3.11 INVALID, ILLEGAL OR UNENFORCEABLE PROVISIONS
In the event that any one or more of the provisions contained in this Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall
not affect any other provisions, and the Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained in it. To the extent that any term or provision of this
Agreement is in conflict with or inconsistent with a provision of Subchapter F of Chapter 2269 of the Texas
Government Code, the provisions of said Subchapter F shall prevail and apply.
9.3.12 NOTICE
Unless otherwise specified herein, any notice required or permitted under this Agreement shall be deemed
sufficient if given in writing and personally delivered, sent by overnight express delivery service or
deposited in the United States mail, postage prepaid, by registered or certified mail (return receipt
requested) to the party to whom said notice is to be given. Notices delivered in person, or by overnight
express delivery service, shall be deemed to be served effective as of the date the notice is delivered.
Notices sent by registered or certified mail (return receipt requested) shall be deemed to be served by close
of business on the third business day after the date said notice is postmarked to the addressee, postage
prepaid.
-41-
Until changed by written notice given by one party to the other, the addresses of the parties for purposes
herein shall be as follows:
IF TO OWNER: Name:
Kelly Campbell
Title:
Executive Director of Aviation
Address:
5401 North MLK Boulevard, Unit 389
Lubbock, Texas 79403
Telephone:
806-775-3047
With a copy to:
Name:
Chad Weaver
Title:
City Attorney
Address:
City of Lubbock
1625 13th Street
Lubbock, Texas 79457
IF TO CONTRACTOR:
Name:
Hensel Phelps
Attention
Michael Orlowski
Title:
Operations Manager
Address:
8326 Cross Park Drive
Austin, TX 78754
9.3.13 RELATIONSHIP OF PARTIES
9.3.13.1 CONTRACTOR undertakes performance of the Work as an independent contractor.
Nothing herein shall create a relationship of employer and employee, joint venture, or
partnership between the OWNER and CONTRACTOR, its agents, representatives,
employees, engineers, consultants, contractors, or subcontractors, for any purpose
whatsoever. Nothing herein shall create a relationship of principal and agent between
OWNER and CONTRACTOR, its agents, employees, representatives, engineers,
consultants, contractors, or subcontractors. Neither party shall have the authority to bind
nor obligate the other in any manner as a result of the relationship created hereby.
9.3.13.2 OWNER shall not have the right to control the manner(s) or prescribe the method(s) by
which CONTRACTOR performs the Work. CONTRACTOR shall be wholly responsible
for the CONTRACTOR services. CONTRACTOR is responsible for its acts and the acts
of its agents, employees, representatives, engineers, consultants, contractors, and
subcontractors engaged in the performance of the Work.
9.3.13.3 CONTRACTOR's personnel shall be and remain solely the employees of
CONTRACTOR, and at no time or in any manner shall CONTRACTOR'S personnel,
employees, agents, representatives, engineers, consultants, contractors, or subcontractors
be considered as or deemed to be employees of OWNER.
9.3.14 FINANCIAL INTEREST PROHIBITED
CONTRACTOR covenants and represents that CONTRACTOR, its officers, employees, agents, engineers,
-42-
consultants, contractors, and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials, or equipment that will be recommended or required for the construction
of the Work.
9.3.15 TIME IS OF THE ESSENCE
CONTRACTOR understands and agrees that time is of the essence.
9.3.16 NO INDEMNIFICATION BY CITY
The parties expressly acknowledge that the OWNER'S authority to indemnify and/or hold harmless any
third party is governed by the Texas Constitution and any provision which purports to require
indemnification by the OWNER is invalid.
9.3.17 NON -APPROPRIATION
The Parties understand and acknowledge that the funding of this Agreement is contained in the OWNER'S
annual budget and is subject to the approval of the OWNER in each fiscal year. The Parties further agree
that should the governing body of the OWNER fail to approve a budget which includes sufficient funds for
the continuance of this Agreement, or should the governing body of the OWNER fail to certify funds for
any reason, then and upon the occurrence of such event, this Agreement shall terminate as to the OWNER
and the OWNER shall make payment for all completed work and demobilization costs then have no further
obligation to the CONTRACTOR. When the funds budgeted or certified during any fiscal year by the
OWNER to discharge its obligations under this Agreement are expended, any other Party's sole and
exclusive remedy following payment for all completed work and demobilization costs shall be to terminate
this Agreement.
9.3.18 RIGHTS AND REMEDIES RESERVED
The OWNER and CONTRACTOR reserve the right to exercise any right or remedy available to it by law,
contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a
court of competent jurisdiction. Further, the OWNER shall not be subject to any arbitration process prior
to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative
and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision
and another provision in, or related to, this Agreement, the former shall control.
9.3.19 CERTIFICATION REGARDING LOBBYING
The bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her
knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the Bidder or Offeror,
to any person for influencing or attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with
the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal
contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-
LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents
for all sub -awards at all tiers (including subcontracts, sub -grants, and contracts under grants, loans, and
cooperative agreements) and that all sub -recipients shall certify and disclose accordingly.
-43-
This certification is a material representation of fact upon which reliance was placed when this transaction
was made or entered into. Submission of this certification is a prerequisite for making or entering into this
transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
9.3.20 PROHIBITION OF SEGREGATED FACILITIES
(a) The CONTRACTOR agrees that it does not and will not maintain or provide for its employees any
segregated facilities at any of its establishments, and that it does not and will not permit its employees to
perform their services at any location under its control where segregated facilities are maintained. The
CONTRACTOR agrees that a breach of this clause is a violation of the Equal Opportunity clause in this
contract.
(b) "Segregated facilities," as used in this clause, means any waiting rooms, work areas, rest rooms and
wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing
areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing
facilities provided for employees, that are segregated by explicit directive or are in fact segregated on the
basis of race, color, religion, sex, or national origin because of written or oral policies or employee custom.
The term does not include separate or single -user rest rooms or necessary dressing or sleeping areas
provided to assure privacy between the sexes.
(c) The CONTRACTOR shall include this clause in every subcontract and purchase order that is subject to
the Equal Opportunity clause of this contract.
9.3.21 PROCUREMENT OF RECOVERED MATERIALS
CONTRACTOR and subcontractor agree to comply with Section 6002 of the Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act, and the regulatory provisions of 40 CFR
Part 247. In the performance of this contract and to the extent practicable, the CONTRACTOR and
subcontractors are to use of products containing the highest percentage of recovered materials for items
designated by the Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:
a) The contract requires procurement of $10,000 or more of a designated item during the fiscal year; or,
b) The CONTRACTOR has procured $10,000 or more of a designated item using Federal funding during
the previous fiscal year.
The list of EPA -designated items is available at www.epa.gov/Uawaste/conserve/tools/ZgZproduct5/.
Section 6002(c) establishes exceptions to the preference for recovery of EPA -designated products if the
CONTRACTOR can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the contract performance
schedule;
b) Fails to meet reasonable contract performance requirements; or
c) Is only available at an unreasonable price.
9.3.22 SEISMIC SAFETY
The CONTRACTOR agrees to ensure that all work performed under this contract, including work
performed by subcontractors, conforms to a building code standard that provides a level of seismic safety
-44-
substantially equivalent to standards established by the National Earthquake Hazards Reduction Program
(NEHRP). Local building codes that model their code after the current version of the International
Building Code (IBC) meet the NEHRP equivalency level for seismic safety.
9.3.23 TRADE RESTRICTION CERTIFICATION
By submission of an offer, the Offeror certifies that with respect to this solicitation and any resultant
contract, the Offeror:
a) is not owned or controlled by one or more citizens of a foreign country included in the list of countries
that discriminate against U.S. firms as published by the Office of the United States Trade Representative
(U.S.T.R.);
b) has not knowingly entered into any contract or subcontract for this project with a person that is a citizen
or national of a foreign country included on the list of countries that discriminate against U.S. firms as
published by the U.S.T.R; and
c) has not entered into any subcontract for any product to be used on the Federal on the project that is
produced in a foreign country included on the list of countries that discriminate against U.S. firms published
by the U.S.T.R.
This certification concerns a matter within the jurisdiction of an agency of the United States of America
and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution
under Title 18, United States Code, Section 1001.
The Offeror/CONTRACTOR must provide immediate written notice to the OWNER if the
Offeror/CONTRACTOR learns that its certification or that of a subcontractor was erroneous when
submitted or has become erroneous by reason of changed circumstances. The CONTRACTOR must require
subcontractors provide immediate written notice to the CONTRACTOR if at any time it learns that its
certification was erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49
CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:
(1) Who is owned or controlled by one or more citizens or nationals of a foreign country included on the
list of countries that discriminate against U.S. firms published by the U.S.T.R. or
(2) Whose subcontractors are owned or controlled by one or more citizens or nationals of a foreign country
on such U.S.T.R. list or
(3) Who incorporates in the public works project any product of a foreign country on such U.S.T.R. list;
Nothing contained in the foregoing shall be construed to require establishment of a system of records in
order to render, in good faith, the certification required by this provision. The knowledge and information
of a CONTRACTOR is not required to exceed that which is normally possessed by a prudent person in the
ordinary course of business dealings.
The Offeror agrees that, if awarded a contract resulting from this solicitation, it will incorporate this
provision for certification without modification in in all lower tier subcontracts. The CONTRACTOR may
rely on the certification of a prospective subcontractor that it is not a firm from a foreign country included
on the list of countries that discriminate against U.S. firms as published by U.S.T.R, unless the Offeror has
knowledge that the certification is erroneous.
-45-
This certification is a material representation of fact upon which reliance was placed when making an
award. If it is later determined that the CONTRACTOR or subcontractor knowingly rendered an erroneous
certification, the Federal Aviation Administration may direct through the OWNER cancellation of the
contract or subcontract for default at no cost to the OWNER or the FAA.
9.3.24 VETERAN'S PREFERENCE
In the employment of labor (excluding executive, administrative, and supervisory positions), the
CONTRACTOR and all sub -tier contractors must give preference to covered veterans as defined within
Title 49 United States Code Section 47112. Covered veterans include Vietnam -era veterans, Persian Gulf
veterans, Afghanistan -Iraq war veterans, disabled veterans, and small business concerns (as defined by 15
U.S.C. 632) owned and controlled by disabled veterans. This preference only applies when there are
covered veterans readily available and qualified to perform the work to which the employment relates.
9.3.25 TEXTING WHILE DRIVING
In accordance with Executive Order 13513, "Federal Leadership on Reducing Text Messaging While
Driving", (10/1/2009) and DOT Order 3902.10, "Text Messaging While Driving", (12/30/2009), the
Federal Aviation Administration encourages recipients of Federal grant funds to adopt and enforce safety
policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving
when performing work related to a grant or subgrant.
In support of this initiative, the Owner encourages the CONTRACTOR to promote policies and initiatives
for its employees and other work personnel that decrease crashes by distracted drivers, including policies
that ban text messaging while driving motor vehicles while performing work activities associated with
the project. The CONTRACTOR must include the substance of this clause in all sub -tier contracts
exceeding $3,500 that involve driving a motor vehicle in performance of work activities associated with
the project.
9.3.26 CERTIFICATION OF OFFERER/BIDDER REGARDING TAX DELINQUENCY AND
FELONY CONVICTIONS
The applicant must complete the following two certification statements. The applicant must indicate its
current status as it relates to tax delinquency and felony conviction by inserting a checkmark (✓) in the
space following the applicable response. The applicant agrees that, if awarded a contract resulting from
this solicitation, it will incorporate this provision for certification in all lower tier subcontracts.
Certifications
1) The applicant represents that it is ( ) is not ( X ) a corporation that has any unpaid Federal tax
liability that has been assessed, for which all judicial and administrative remedies have been
exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement
with the authority responsible for collecting the tax liability.
2) The applicant represents that it is ( ) is not ( X ) is not a corporation that was convicted of a
criminal violation under any Federal law within the preceding 24 months.
Note
If an applicant responds in the affirmative to either of the above representations, the applicant is ineligible
to receive an award unless the sponsor has received notification from the agency suspension and
debarment official (SDO) that the SDO has considered suspension or debarment and determined that
further action is not required to protect the Government's interests. The applicant therefore must provide
information to the owner about its tax liability or conviction to the OWNER, who will then notify the
-46-
FAA Airports District Office, which will then notify the agency's SDO to facilitate completion of the
required considerations before award decisions are made.
Term Definitions
Felony conviction: Felony conviction means a conviction within the preceding twenty-
four (24) months of a felony criminal violation under any Federal law and includes
conviction of an offense defined in a section of the U.S. code that specifically classifies
the offense as a felony and conviction of an offense that is classified as a felony under 18
U.S.C. § 3559.
Tax Delinquency: A tax delinquency is any unpaid Federal tax liability that has been
assessed, for which all judicial and administrative remedies have been exhausted, or have
lapsed, and that is not being paid in a timely manner pursuant to an agreement with the
authority responsible for collecting the tax liability.
9.3.27 BUY AMERICAN PREFERENCE
The Contractor agrees to comply with 49 USC § 50 10 1, which provides that Federal funds may not be
obligated unless all steel and manufactured goods used in AIP funded projects are produced in the
United States, unless the Federal Aviation Administration has issued a waiver for the product; the
product is listed as an Excepted Article, Material Or Supply in Federal Acquisition Regulation subpart
25.108; or is included in the FAA Nationwide Buy American Waivers Issued list.
A bidder or offeror must complete and submit the Buy America certification included herein with their
bid or offer. The Owner will reject as nonresponsive any bid or offer that does not include a completed
Certificate of Buy American Compliance.
CERTIFICATE OF BUY AMERICAN COMPLIANCE FOR TOTAL FACILITY
As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and submit this
certification statement with its proposal. The bidder or offeror must indicate how it intends to comply
with 49 USC § 50101 by selecting one of the following certification statements. These statements are
mutually exclusive. Bidder must select one or the other (i.e. not both) by inserting a checkmark (✓) or
the letter "X".
❑ Bidder or offeror hereby certifies that it will comply with 49 USC § 50101 by:
a) Only installing steel and manufactured products produced in the United States; or
b) Installing manufactured products for which the Federal Aviation Administration (FAA)
has issued a waiver as indicated by inclusion on the current FAA Nationwide Buy
American Waivers Issued listing; or
c) Installing products listed as an Excepted Article, Material or Supply in Federal
Acquisition Regulation Subpart 25.108.
By selecting this certification statement, the bidder or offeror agrees:
• To provide to the Owner evidence that documents the source and origin of the steel and
manufactured product.
• To faithfully comply with providing U.S. domestic products.
• To refrain from seeking a waiver request after establishment of the contract, unless extenuating
circumstances emerge that the FAA determines justified.
-47-
❑ The bidder or offeror hereby certifies it cannot comply with the 100 percent Buy American
Preferences of 49 USC § 50101(a) but may qualify for either a Type 3 or Type 4 waiver under
49 USC § 50101(b). By selecting this certification statement, the apparent bidder or offeror with
the apparent low bid agrees:
a) To the submit to the Owner within 15 calendar days of the bid opening, a formal
waiver request and required documentation that supports the type of waiver being
requested.
b) That failure to submit the required documentation within the specified timeframe is
cause for a non -responsive determination that may result in rejection of the proposal.
c) To faithfully comply with providing U.S. domestic products at or above the approved
U.S. domestic content percentage as approved by the FAA.
d) To furnish U.S. domestic product for any waiver request that the FAA rejects.
e) To refrain from seeking a waiver request after establishment of the contract, unless
extenuating circumstances emerge that the FAA determines justified.
Required Documentation
Type 3 Waiver — The cost of components and subcomponents produced in the United States is more
than 60 percent of the cost of all components and subcomponents of the "facility". The required
documentation for a Type 3 waiver is:
a) Listing of all manufactured products that are not comprised of 100 percent U.S. domestic content
(excludes products listed on the FAA Nationwide Buy American Waivers Issued listing and
products excluded by Federal Acquisition Regulation Subpart 25.108; products of unknown
origin must be considered as non -domestic products in their entirety).
b) Cost of non -domestic components and subcomponents, excluding labor costs associated with
final assembly and installation at project location.
c) Percentage of non -domestic component and subcomponent cost as compared to total "facility"
component and subcomponent costs, excluding labor costs associated with final assembly and
installation at project location.
Type 4 Waiver — Total cost of project using U.S. domestic source product exceeds the total project cost
using non -domestic product by 25 percent. The required documentation for a Type 4 of waiver is:
a) Detailed cost information for total project using U.S. domestic product
b) Detailed cost information for total project using non -domestic product
False Statements: Per 49 USC § 47126, this certification concerns a matter within the jurisdiction of
the Federal Aviation Administration and the making of a false, fictitious or fraudulent certification may
render the maker subject to prosecution under Title 18, United States Cod,
Date
Hensel Phelps
go
Vice President
ARTICLE 10
TERMINATION OR SUSPENSION
10.1 TERMINATION DURING PRE -CONSTRUCTION PHASE
10.1.1 During the pre -construction phase, the OWNER may terminate this Contract at any time without
cause.
10.1.2 If the OWNER terminates this Contract pursuant to this part 10.1, the CONTRACTOR shall be
equitably compensated for costs incurred for Preconstruction Phase services performed prior to receipt of
notice of termination; provided, however, that the compensation for such services shall not exceed the
compensation set forth in Subparagraph 4.1.1 and that all expenses were approved by OWNER and
documentation to support the details of each expense are given to OWNER.
10.2 TERMINATION OR SUSPENSION DURING CONTSTRUCTION PHASE
10.2.1 TERMINATION BY OWNER FOR CONVENIENCE
The OWNER may terminate this contract in whole or in part at any time by providing written notice to the
CONTRACTOR. Such action may be without cause and without prejudice to any other right or remedy of
OWNER. Upon receipt of a written notice of termination, except as explicitly directed by the OWNER, the
CONTRACTOR shall immediately proceed with the following obligations regardless of any delay in
determining or adjusting amounts due under this clause:
1. CONTRACTOR must immediately discontinue work as specified in the written notice.
2. Terminate all subcontracts to the extent they relate to the work terminated under the notice.
3. Discontinue orders for materials and services except as directed by the written notice.
4. Deliver to the OWNER all fabricated and partially fabricated parts, completed and partially completed
work, supplies, equipment and materials acquired prior to termination of the work and as directed in the
written notice to the extent owner has made payment.
5. Complete performance of the work not terminated by the notice.
6. Take action as directed by the OWNER to protect and preserve property and work related to this contract
that OWNER will take possession.
OWNER agrees to pay CONTRACTOR for:
a) Completed and acceptable work executed in accordance with the contract documents prior to
the effective date of termination;
b) Documented expenses sustained prior to the effective date of termination in performing work
and furnishing labor, materials, or equipment as required by the contract documents in
connection with uncompleted work;
c) Reasonable and substantiated claims, costs and damages incurred in settlement of terminated
contracts with Subcontractors and Suppliers; and
-49-
d) Reasonable and substantiated expenses to the CONTRACTOR directly attributable to
OWNER'S termination action.
OWNER will not pay CONTRACTOR for loss of anticipated profits or revenue or other economic loss
arising out of or resulting from the OWNER'S termination action.
The rights and remedies this clause provides are in addition to any other rights and remedies provided by
law or under this contract.
10.2.2 TERNIINATION BY OWNER FOR CAUSE
Section 80-09 of FAA Advisory Circular 150/5370-10 establishes conditions, rights, and remedies
associated with OWNER termination of this contract due to default of the CONTRACTOR. Termination
under this section goes into effect ten (10) days after receipt of written notice from the OWNER, and
CONTRACTOR has not commenced to diligently cure or correct the subject matter of the notice
10.2.2.1 Upon the written notice, the CONTRACTOR shall:
Cease all operations and not enter into any further subcontracts or purchase
orders;
2. Take actions necessary for the preservation and protection of the Work; and
3. Terminate all existing subcontracts and purchase orders, unless otherwise
directed by OWNER in notice of termination.
10.2.2.2 The OWNER may terminate the contract for cause if the CONTRACTOR:
1. Repeatedly refuses or fails to:
a. Supply enough properly skilled workers or proper materials; or
b. Make full and timely payment of amount due and owing to
Subcontractors for materials or labor according to CONTRACTOR and
Subcontractor written agreements;
2. Repeatedly or knowingly disregards any applicable laws, statutes, ordinances,
codes, rules, regulations, or enforceable orders of a public authority;
Substantially breaches any provision of the Contract Documents;
4. Becomes insolvent, files a bankruptcy petition, has a receiver or trustee
appointed for all or a significant portion of the assets of the CONTRACTOR, or
performs any act of fraud;
5. Actually or constructively abandons, or puts OWNER on actual or constructive
notice that it intends to abandon the Work;
Fails to furnish OWNER with an unconditional release of lien or a statutory bond
in compliance with Subchapter H of the Texas Property Code within thirty (30)
days after an affidavit claiming a lien is recorded by a claimant claiming through
the CONTRACTOR; or
-50-
7. Shall not be able to achieve Substantial Completion within thirty (30) days
following the Date of Substantial Completion required by the Agreement,
according to the reasonable belief of the OWNER when CONTRACTOR fails to
achieve a critical milestone within thirty (30) days of the date for such critical
milestone set forth in the critical path schedule; or
8. Fails to maintain insurance as required in Article 8 of this Agreement.
10.2.3 TERNS NATION BY CONTRACTOR FOR CAUSE
Termination under this section go into effect ten (10) days after receipt of written notice from the
CONTRACTOR, and OWNER has not commenced to diligently cure or correct the subject matter of the
notice
10.2.3.1 The CONTRACTOR may terminate the contract for cause if the Work is stopped for a
period of 90 consecutive days through no act or fault of the CONTRACTOR or Subcontractor or
their agents or employees or any other persons or entities performing portions of the Work under
direct or indirect contract with the CONTRACTOR for any of the following reasons:
Issuance of an order of a court or other public authority having jurisdiction that
requires all Work to be stopped;
2. An act of government, such as a declaration of national emergency that requires
all Work to be stopped;
3. Because the OWNER has not made payment on a Certificate for Payment within
the time stated in the Contract Documents; or
4. The Work is stopped for a period of 60 consecutive days through no act or fault
of the CONTRACTOR or Subcontractor or their agents or employees or any
other persons performing portions of the Work under contract with the
CONTRACTOR, because:
a. The OWNER has repeatedly failed to fulfill the OWNER's obligations
under the Contract Documents with respect to matters necessary to the
progress of the Work;
b. The CONTRACTOR has provided an additional ten (10) days written
notice to the OWNER and the Architect of such failure; and
C. The Work is not allowed to commence by the expiration of said notice.
10.2.4 PAYMENT AFTER TERIVIINATION
In the event of termination under this article, and provided that such payment does not exceed amount to
be paid to the CONTRACTOR in the Contract Documents, the CONTRACTOR shall be paid for:
Work performed in accordance with the Contract Documents; and
Direct, actual, and unavoidable costs incurred by the CONTRACTOR prior to receipt of
written notice accompanied by written support explaining the costs to the OWNER.
-51-
10.2.5 SUSPENSION
The Work may be suspended by the Owner as in Attachment 1
10.2.6 ASSIGNMENT OF SUBCONTRACTS
In the event of termination by the OWNER, for convenience or for cause, and at the OWNER'S request to
assign Subcontractor Agreements, the CONTRACTOR shall assign Subcontractor Agreements to
OWNER. OWNER shall not be responsible for any obligations owed to Subcontractor by CONTRACTOR
prior to Assignment to OWNER to the extent OWNER has made payment. Upon assignment, the OWNER
assumes the CONTRACTOR'S rights and obligations under the Subcontract Agreement with regard to the
Work to be performed after the acceptance of the assignment by the OWNER.
10.3 BREACH OF CONTRACT TERMS
Any material violation or breach of terms of this contract on the part of the CONTRACTOR or its
subcontractors may result in the suspension or termination of this contract or such other action that may be
necessary to enforce the rights of the parties of this agreement.
OWNER will provide CONTRACTOR written notice that describes the nature of the material breach and
corrective actions the CONTRACTOR must undertake in order to avoid termination of the contract.
OWNER reserves the right to withhold payments to CONTRACTOR until such time the CONTRACTOR
corrects the breach or the OWNER elects to terminate the contract. The OWNER'S notice will identify a
specific date by which the CONTRACTOR must correct the breach. OWNER may proceed with
termination of the contract if the CONTRACTOR fails to correct the breach by deadline indicated in the
OWNER'S notice or, if the breach cannot be cured by the deadline, that CONTRACTOR is diligently
pursuing correction..
The duties and obligations imposed by the Contract Documents and the rights and remedies available
thereunder are in addition to, and not a limitation of, any duties, obligations, rights and remedies otherwise
imposed or available by law.
ARTICLE 11
OTHER CONDITIONS AND SERVICES
11.1 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall constitute an original
but all of which, when taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
respective officials thereunto duly authorized, this the day and year above written.
EXECUTED as of the Effective Date hereof.
CITY OF LUBBOCK
Daniel M. Pope, MAYOR
-52-
ATTEST:
Rebec a Garza, City Secretary
APPROVED AS TO CONTENT:
. JA4(r&mo�a�
Kelly Caftbell, Exe utive Director of Aviation
APPROVED AS TO FORM:
elli Leisure, Assistant i Attorney
CONSTRUCTION MANAGER AT RISK
Hensel Phelps
-53-
Winans, Vice President
Attachment 1
OWNER'S CONSTRUCTION GENERAL CONDITIONS
-54-
F1
CERTIFICATE OF INTERESTED PARTIES
FORM 1.295
1 -)t
Complete Nos. 1 - 4 and 6 it there are interested parties.
OFFICE USE ONLY
Complete Nos. 1.2, 3, 5, and 6 if there are no interested parties
CERTIFICATION OF FILING
Certificate Number
1 Name of business entity filing form, and the city, state and country of the business entity's place
of business.
1� iE
Hensel Phelps Construction Co
Austin, TX United States
Date Filed
11 .4
2 Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Lubbock
Date Acknowledged.
3 Provide the identification number used by the governmental entity or state agency to track or identify
description of the services, goods, or other property to be provided under the contract.
the contract, and provide a
18-13705-TF
5946 Construction Services
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling I
Intermediary
5 Check only if there is NO Interested Party. ❑
X
6 AFFIDAVIT I swear, or affirm, under penalt pgrjury, that the above disclosure is true and correct.
1,0 Brie Anne Ruttefford
y\uWr) 1'rblic.
.�r ,rare• 4 I'ma,
Expires 11-07-2018
- S, artnof autrorized agent of contracting business entity
AFFIX NOTARY STAMP I SEAL ABOVE
Sworn to and subscribed before me, by the said Bradley D. Winans _,this the 1 7th day of November
20 17 to certify which, witness my hand and seal of office.
Signature of officer ad roistering oath Printed name of officer administering oath Title of officer adrinistering oath
Forms provided by Texas Ethics Commission www ethics state Ix -us version vl u &iii
CERTIFICATE OF INTERESTED PARTIES
FORM 1.295
1of1
Complete Nos. 1- 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
CERTIFICATION OF FILING
Certificate Number:
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
2017-283842
Hensel Phelps Construction Co.
Austin, TX United States
Date Filed:
11/14/2017
2
Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Lubbock
Date Acknowledged:
04/12/2018
3
Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
18-13705-TF
5946 Construction Services
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
Intermediary
5
Check only if there is NO Interested Party.
X
6
UNSWORN DECLARATION
My name is and my date of birth is
My address is
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in County, State of on the day of , 20
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337
Attachment 1
CITY OF LUBBOCK. TEXAS
OWNER'S CONSTRUCTION GENERAL CONDITIONS
1. Definitions
2. General Conditions
2.1 Architect/Engineer Administration of the Contract
2.2 Notice to Proceed and the Preconstruction Conference
2.3 Ownership, Copies of Documents, and Record Documents
2.4 Cooperation between Contractors
2.5 Acceptance of Work by Others
2.6 Subcontracts
2.7 (Intentionally left blank)
2.8 Permits, Laws, Taxes, and Regulations
2.9 Availability of Lands
2.10 Use of Premises
2.11 Owner's Status During Construction
2.12 Owner's Interpretations Decisions
2.13 Shop Drawings and Samples
2.14 Contractor's Supervision and Superintendence
2/15 Safety and Protection
2.16 Access to the Work and Uncovering Finished Work
2.17 Changes in the Work
2.18 Changes of Contract Price
-1-
2.19 Extra Work
2.20 Unauthorized Work
2.21 Neglected Work
2.22 Conformity with Contract Documents
2.23 Change of Contract Time
2.24 Warranty and Guarantee Regarding Work
2.25 Waivers of Claims and Continuing Obligations
2.26 Owner's Right to Stop or Suspend Work
2.27 Owner's Right to Terminate
2.28 Contractor's Right to Stop Work or Terminate
2.29 Contractor's Management Personnel
2.30 Abandonment by Contractor
2.31 Abandonment by Owner
3. Insurance Requirements
3.1. Maintenance of Insurance
3.1.1 Certificates of Insurance
3.1.2 Required Limits of Insurance
3.1.3 Required Policy Terms
3.1.4 Subcontractors and Trade Contractors as Insureds
3.1.5 State mandated Workers' Compensation Insurance Requirements
3.2.1 Builders Risk Insurance
4 Contract Measurement and Payment
4.1. Quantities and Measurements
4.2. Estimated Quantities
-2-
4.3. Price of Work
4.4. Partial Payment Estimates
4.4.1. Deadline
4.4.2. Payment
4.4.3. Warranty of Title
4.4.4 Retainage
4.5. Approval of Payments
4.6. Substantial Completion
4.7. Partial Utilization
4.8. Final Payment
4.9. Guarantee
4.10. Payments Withheld
4.11. Delayed Payments
5. Project Requirements
5.1. Line and Grade
5.2. Working Day
5.3. Character of Employees
5.4. Physical and Subsurface Conditions
5.5. Reference Points
6. Materials
6.1. Materials and Equipment
6.2. Right of the Owner to Modify Equipment and/or Methods
6.3. Owner Furnished Materials
-3-
6.4. Material Storage
6.5. Sources of Supply and Quality of Materials
6.6. Samples and Tests
6.7. Defective Materials
7. Project Meetings
7.1. Pre -construction Meeting
7.2. Progress Meetings
8. Construction Administration
8.1. Notices to Owners and Authorities
8.2. Notification of Street Closing
8.3. Detours and Barricading
8.4. Convenience to Traffic
8.5. Unfavorable Construction Conditions
8.6. Cleaning Up
8.7. Site Administration
8.8. Load Restrictions
8.9. Applicable Codes
8.10. Owner Responsibilities
9. Employment Requirements
9.1 General
9.2 Records
9.3 Penalty
9.4 Hours of Labor
9.5 Veterans Preference
-4-
9.6 Prevailing Wage and Hour Decision
9.6.1 Attachment a-1, Prevailing Wage
10. Indemnification of Owner
10.1 Contractor Agreement to Indemnify and Hold Harmless Owner
10.2 Contractor Agreement to Indemnify Owner from Infringement of Intangible
Property Rights
10.3 No Rights Created in Third Parties
10.4 Contractor Notice of Claims to Owner
10.5 Survival of Indemnity and Hold Harmless Provisions
11. Bonds Applicable to "Public Work Contracts"
11.1 Construction Bonds
11.1.1 Bond Requirements
11.1.2 Security Bond
11.1.3 When Bonds Are Due
11.1.4 Power of Attorney
11.1.5 Bond Indemnification
11.1.6 Furnishing Bond Information
11.1.7 Claims on Payment Bonds
11.1.8 Payment Claims when Payment Bond not Required
11.1.9 Sureties
-5-
OWNER'S CONSTRUCTIONGENERAL CONDITIONS
The conditions contained herein are generally applicable to the Work described. Contractor and
Owner agree to interpret and enforce the terms and conditions contained within this section only
insofar as they are applicable to the Work.
1. Definitions
Wherever used in these General Conditions or in the other Contract Documents, the
following terms shall have the meanings indicated which shall be applicable to both the
singular and plural thereof:
Agreement
The written agreement between the Owner and the Contractor covering the Work to be
performed, including the Request for Qualification or Request for Proposal submission,
and the Bonds and all other documents described more fully in the executed agreement.
Architect
The Architect is the person lawfully licensed to practice architecture or any entity lawfully
practicing architecture identified as such in the Agreement and is referred to throughout
the Contract Documents as if singular in number. The term "Architect" means the Architect
or the Architect's authorized representative.
Bidder
Any individual, partnership, firm, or corporation, acting directly or through a duly
authorized representative, who submits a proposal or bid for the Work contemplated.
Bond(s)
The approved form(s)of security furnished by the Contractor and its surety in accordance
with the terms set forth in the Bid and as may otherwise be requested of the Contractor in
the Contract Documents.
Calendar Day
A "Calendar Day" is any calendar day of week, month or year, no days being excepted.
Change Order
A written order to the Contractor signed by the Owner and Architect, and Contractor
covering changes in the contract documents, plans, specifications, or proposal quantities
and establishing the basis of payment and contract time adjustment, if any, for the work
affected by such changes. The work, covered by a change order, shall be within the scope
of the contract.
Contract Documents
The Agreement, Plans, Specifications, Drawings, and Field Changes, change orders, or any
related addenda to the Agreement, Supplemental Agreement(s), Plans, Specifications, or
Field Changes.
-6-
Contract Price
The total monies payable to the Contractor under the Contract Documents.
Contract Time
The number of calendar days allowed for completion of the Work, or completion date
stated in the Contract Documents for the completion of the Work.
Contractor
The individual, partnership, firm, or corporation primarily liable for the acceptable
performance of the Work and for the payment of all legal debts pertaining to the Work who
act as directly or through lawful agents or employees to complete the Work. "Contractor
shall include "Construction Manager" and "Construction Manager at Risk".
Engineer
A person or entity licensed to engage in the practice of engineering in the State of Texas.
"Engineer" designates the licensed engineer duly authorized by the Owner to be responsible
for the engineering aspects of the Work.
Equipment
All machinery, together with the necessary supplies for upkeep and maintenance, and all
tools and apparatus necessary for the proper construction and acceptable completion of the
Work.
Extra Work
An item of work not provided for in the Contract Documents as previously modified by
Change Order or Supplemental Agreement, but which is found by the Owner to be
necessary to complete the Work within the intended scope of the Contract Documents as
previously modified.
Field Change
A Field Change may be issued in the form of:
(a) A written amendment of the Contract Documents signed by both parties,
(b) A Change Order,
(c) A written clarification or interpretation issued by the Owner in accordance
with Section 2.17, or
(d) A written order for a minor change or alteration in the Work issued by the
Owner pursuant to Section 2.17.
A Field Change may only be issued after execution of the Agreement.
Field Order
A written order issued by the Owner which clarifies or interprets the Contract Documents
or minor changes in the Work in accordance with Section 2.17.
Guaranteed Maximum Price (GMP)
A cost -type contract where the Contractor is compensated for actual costs incurred plus a
fixed fee subject to a not -to -exceed price. The contractor is responsible for cost overruns,
-7-
unless the GMP has been increased via authorization and approval by the Owner's
governing body. Savings resulting from cost under -runs are returned to the owner
Materials
Any substance or building product specified for use in the construction of the Work.
Owner
A public body or authority, corporation, association, partnership, or individual for whom
the Work is to be performed. For this Agreement, the "Owner" is the City of Lubbock,
located in Lubbock County, Texas.
Partial Payment Estimate
A form filled out and signed by the Contractor covering the work performed during the
period covered by the partial payment estimate and supported by such data as the Owner
or Owner's designated agent may require, detailing but not limited to previous payments
made to Contractor, retainage to date of estimate, materials delivered but not yet
incorporated into the construction, and other information relevant to establishing the work
performed and work remaining to be performed. Partial Payment Estimates are usually
issued monthly or on the same periodic basis that partial payments are to be made under
the Agreement.
Plans
The official drawings or exact reproductions which show the location, character,
dimensions and details of the Work to be done and which are to be considered as a part of
the Contract Documents, supplementary to the Specifications.
Project
The total construction of which the Work performed under the Contract Documents may
be the whole or part, to include all duties and Work to be performed as provided in the
Contract Documents.
Resident Project Representative
The "Resident Project Representative" shall be the Owner or any individual, partnership,
firm or corporation duly authorized by the Owner who is assigned to the Project, or any
part thereof, and who shall be responsible for observing the progress and quality of the
Work, or any portion of the Work, on the behalf of the Owner.
Shop Drawings
All drawings, diagrams, illustrations, brochures, schedules, and other data which are
prepared by the Contractor, a Subcontractor, manufacturer, supplier, or distributor which
illustrate the Equipment, Material, or some portion of the Work.
Specifications
A part of the Contract Documents containing the written directions and requirements for
completing the Work. Standards for specifying materials or testing which are cited in the
Contract Documents by reference shall have the same force and effect as if included in the
Contract Documents physically.
Subcontractor
An individual, firm, or corporation having a direct contract with the Contractor or with any
other Subcontractor for the performance of a part of the Work.
Substantial Completion
The date as certified by the Owner, when the construction of the Project or a specified part
thereof is sufficiently completed, in accordance with the Contract Documents, so that the
Project or specified part can be utilized for the purposes for which it was intended.
Supplemental Agreement
A written, agreement between the Contractor and the Owner covering (1) work that would
increase or decrease the total amount of the Agreement as awarded; or (2) work that is not
within the scope of the Contract Documents.
Work
Any and all obligations, duties, and responsibilities necessary to the successful completion
of the Project assigned to or undertaken by the Contractor under the Contract Documents,
including the furnishing of all labor, Materials, Equipment, and other incidentals necessary
to the Contractor's performance of all duties and obligations imposed by the Contract
Documents.
Work Day
A "Work Day" is defined as a calendar day excluding Saturdays, Sundays, and legal
holidays authorized in the list prepared for the City of Lubbock for use of its employees,
in which weather or other conditions not under the control of the Contractor will permit the
performance of the principal units of work underway for a continuous period of not less
than 7 hours between 8:00 a.m. and 5:00 p.m.
Work Week
The "Work Week" shall consist of a period of seven (7) successive calendar days to begin
and end as specified by the Contractor.
2. General Conditions
2.1. Architect/Engineer Administration of the Contract
The Architect or Engineer will provide administration of the Contract as described in the
Contract Documents and the RFQ or RFP, and will be an Owner's representative (1) during
construction, (2) until final payment is due and (3) with the Owner's concurrence, from
time to time during the one-year period for correction of Work described herein. The
Architect will have authority to act on behalf of the Owner only to the extent provided in
the Contract Documents, unless otherwise modified in writing in accordance with other
provisions of the Contract.
The Architect or Engineer, as a representative of the Owner, will visit the site at intervals
appropriate to the stage of the Contractor's operations (1) to become generally familiar
with, and to keep the Owner informed about, the progress and quality of the portion of the
Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in
the Work, and (3) to determine in general if the Work is being performed in a manner
W
indicating that the Work, when fully completed, will be in accordance with the Contract
Documents. The Architect or Engineer will neither have control over or charge of, nor be
responsible for, the construction means, methods, techniques, sequences or procedures, or
for the safety precautions and programs in connection with the Work, since these are the
Contractor's rights and responsibilities under the Contract Documents.
The Architect or Engineer will not be responsible for the Contractor's failure to perform
the Work in accordance with the requirements of the Contract Documents. The Architect
will not have control over or charge of, and will not be responsible for, acts or omissions
of the Contractor, Subcontractors, or their agents or employees, or any other persons or
entities performing portions of the Work.
Except as otherwise provided in the Contract Documents, or when direct communications
have been specially authorized, the Owner and Contractor shall endeavor to communicate
with each other through the Architect or Engineer about matters arising out of or relating
to the Contract. Communications by and with the Architect's or Engineer's consultants
shall be through the Architect. Communications by and with Subcontractors and material
suppliers shall be through the Contractor. Communications by and with separate
contractors shall be through the Owner.
The Architect or Engineer will have authority to reject Work that does not conform to the
Contract Documents. Whenever the Architect considers it necessary or advisable, the
Architect or Engineer will have authority to require inspection or testing of the Work,
whether or not such Work is fabricated, installed or completed. However, neither this
authority of the Architect, nor a decision made in good faith either to exercise or not to
exercise such authority shall give rise to a duty or responsibility of the Architect or
Engineer to the Contractor, Subcontractors, material and equipment suppliers, their agents
or employees, or other persons or entities performing portions of the Work.
The Architect or Engineer will review and approve or take other appropriate action upon
the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only
for the limited purpose of checking for conformance with information given and the design
concept expressed n the Contract Documents. The Architect or Engineer's action will be
taken with reasonable promptness as not to cause delay in the Work or in the activities of
the Owner, Contractor or separate contractors, while allowing sufficient time to permit
adequate review. Review of such submittals is not conducted for the purpose of
determining the accuracy and completeness of equipment or systems, all of which remain
the responsibility of the Contractor as required by the Contract Documents. The Architect's
or Engineer's review of the Contractor's submittals shall not relieve the Contractor of its
obligations within the Contract Documents, unless Contractor's shop drawings approved
by Architect or Engineer specifically reference change in the plans and specifications. The
Architect or Engineer's review shall not constitute approval of safety precautions or, unless
otherwise specifically stated by the Architect or Engineer, of any construction means,
methods, techniques, sequences or procedures. The Architect or Engineer's approval of a
specific item shall not indicate approval of an assembly of which the item is a component.
-10-
The Architect or Engineer will prepare Change Orders and Construction Change
Directives, and may authorize minor changes in the Work as provided herein.
The Architect or Engineer will interpret and decide matters concerning performance under
and requirements of the Contract Documents on written request of either the Owner or
Contractor. The Architect or Engineer's response to such requests will be made in writing
within any time limits agreed upon or otherwise with reasonable promptness. If no
agreement is made concerning the time within which interpretations required of the
Architect or Engineer shall be furnished in compliance with this Section, then delay shall
not be recognized on account of failure by the Architect or Engineer to furnish such
interpretations until 15 days after written request is made for them.
Interpretations and decisions of the Architect or Engineer will be consistent with the intent
of the Contract Documents and will be in writing or in the form of drawings..
The Architect or Engineer's decisions on matters relating to aesthetic effect will be final if
consistent with the intent expressed in the Contract Documents.
2.2. Notice to Proceed and the Preconstruction Conference
No work shall be performed until issuance of a written notice to proceed by the Owner.
The notice to proceed shall be issued only upon completion of the Preconstruction Meeting
and all related requirements as provided for in Section 7.1 of this document are complete.
2.3. Ownership, Copies of Documents, and Record Documents
All Specifications, Plans, and copies thereof furnished by the Owner shall remain the
property of the Owner. They shall not be used on another project.
The Contractor will keep one record copy of all Specifications, Plans, Field Changes, Shop
Drawings, and any addenda thereto at the site in good order and annotated to show all
changes made during the construction process. These shall be available to the Owner and
shall be delivered to the Owner upon completion of the Project.
2.4. Cooperation between Contractors
When separate contracts are let within the limits of any one project, each Contractor shall
conduct the work so as not to interfere with, or hinder the progress or completion of, the
work being performed by other contractors. The Contractor will afford the other contractors
who are parties to such direct contracts (or the Owner, if Owner is performing the additional
work itself), reasonable opportunity for the introduction and storage of materials and
equipment and the execution of work, and shall properly connect and coordinate its Work
with theirs. If any part of the Contractor's Work depends upon the work of any such other
contractor or the Owner for proper execution or results, the Contractor will inspect such
work and promptly report any known defects or deficiencies in writing to the Owner.
Failure to make such a report shall constitute an acceptance of the
-11-
other work as fit and proper for the Work, except as to defects and deficiencies which may
appear in the other work after the execution of Contractor's Work.
The Contractor will do all cutting, fitting, and patching of its Work that may be required to
make its several parts come together properly and fit it to receive or be received by such
other work. The Contractor will not endanger any work of others by cutting, excavating,
or otherwise altering their work and will only cut or alter the work of others with the written
consent of the Owner.
If the performance of additional work by other contractors or the Owner
is not noted in the Contract Documents prior to the Award of the
Agreement, written notice thereof shall be given to the Contractor prior
to starting any such additional work. If the Contractor believes that the
performance of such additional work by the Owner or others causes
Contractor to incur additional expense or entitles Contractor to an
extension of the Contract Time, Contractor may make a request
therefore as provided for herein.
2.5. Acceptance of Work by Others
Each subcontractor shall examine work installed by others that would affect the final
appearance of the subcontractor's installation and notify the Architect and the Contractor
in writing of any known defects which would impair finished appearance of the Work.
Application of materials by subcontractor will constitute acceptance of work by others.
2.6. Subcontracts
The Contractor will not employ any Subcontractor (whether initially or as a substitute)
against whom the Owner may have objection, nor will the Contractor be required to employ
any Subcontractor against whom Contractor has objection. However, if the Contractor
reviews, evaluates and recommends the use of particular subcontractor or its bid or
proposal and the Owner requires that another subcontractor's bid or proposal be accepted,
Owner shall compensate the Contractor by a change in price, time or guaranteed maximum
price for any additional cost or risk the Contractor will incur because of Owner's
requirement to utilize another subcontractor and its bid or proposal rather than the one
recommended.
The Contractor will be responsible for all acts and omissions of its Subcontractors and of
persons directly or indirectly employed by Contractor's subcontractors and of persons for
whose acts any of them may be liable, to the same extent that Contractor is responsible for
the acts and omissions of persons directly employed by it. Nothing in the
-12-
Contract Documents shall create contractual relationship between any Subcontractor and
the Owner, or any obligation on the part of the Owner as payor responsible for payment of
any moneys due any Subcontractor, except as may otherwise be required by law. The
Owner may furnish to any Subcontractor, to the extent practicable, evidence of amounts
paid to the Contractor on account of specific work done.
2.7. (Intentionally left blank)
2.8. Permits, Laws, Taxes, and Regulations
The Contractor will secure and pay for all necessary construction permits and licenses and
will pay all governmental and public utility charges and inspection fees necessary for the
prosecution of the Work. The Contractor will give all notices and comply with all laws,
ordinances, rules, and regulations applicable to the Work. If the Contractor observes that
the Specifications or Plans are at variance therewith, Contractor will give prompt written
notice thereof to the Owner and any necessary changes shall be accomplished by an
appropriate Field Change. If the Contractor performs any Work when Contractor knows or
such work to be contrary to applicable laws, ordinances, rules, regulations, and without
such notice to the Owner, Contractor shall bear all costs, including penalties, relating to
compliance of the work.
The Contractor will pay all sales, consumer, and other similar taxes imposed by law of the
place where the Work is to be performed, or of the place from which any portion of the
Equipment or Materials are obtained.
2.9. Availability of Lands
The Owner will provide not later than the date when required by the Contractor, the lands
indicated in the Contract Documents upon which the Work is to be done, rights -of -way for
access thereto, and such other lands which are designated for the use of the Contractor.
Easements required for permanent structures or permanent changes in existing facilities
will be secured and paid for by the Owner, unless otherwise specified in the Contract
Documents. If the Contractor believes that any delay in the Owner's furnishing these lands
or providing such easements entitles it to an extension of the Contract Time, Contractor
may make a request therefore as provided herein. The Contractor will provide all additional
lands and access thereto that may be required for temporary construction facilities or
storage of Materials and Equipment.
2.10. Use of Premises
The Contractor will confine its equipment, the storage of materials and equipment, and the
operations of its workers to areas permitted by law, ordinances, permits, or the
requirements of the Contract Documents, and shall not unnecessarily encumber the
premises with materials or equipment.
2.11. Owner's Status During Construction
All instructions of the Owner, or its duly appointed representative, to the Contractor shall
be issued directly to the Contractor.
The Owner will make periodic visits to the site to observe the progress and quality of the
executed Work and to determine, in general, if the Work is proceeding in accordance
-13-
with the Contract Documents. The efforts of the Owner will be directed toward providing
assurance that the completed Project will conform to the requirements of the Contract
Documents, but Owner will not be responsible for the Contractor's failure to perform the
Work in accordance with the Contract Documents. Based on on -site observations, the
Owner, or its duly appointed representative, will keep informed of the progress of the Work
and will endeavor to guard it against defect and deficiencies.
The Owner will have authority to disapprove of or reject Work which is unsatisfactory,
faulty, or defective, or does not conform to the requirements of the Contract Documents or
does not meet the requirements of any inspection, test, or approval set forth herein. The
Owner will also have authority to require special inspection or testing of the Work as
provided herein, whether or not the Work is fabricated, installed, or completed. If such
special inspection or testing reveals that the work already performed by Contractor was in
accord with the contract documents the costs of such inspection and testing, if any, shall
be paid by owner via a change order.
Neither the Owner's authority to act under this subsection, nor any decision made by it in
good faith, either to exercise or not exercise such authority, shall give rise to any duty or
responsibility of the Owner to the Contractor, any Subcontractor, any of their agents or
employees, or any other person performing any of the Work.
2.12. Owner's Interpretations Decisions
The Owner will issue with reasonable promptness such clarifications or interpretations (in
the form of drawings or otherwise) as may be determined necessary for the proper
execution of the Work, such clarifications and interpretations to be consistent with or
reasonably inferable from the overall intent of the Contract Documents. If the Contractor
believes that a written clarification and interpretation entitles it to an increase in the
Contract Price, it may make a request therefore as provided herein.
2.13. Shop Drawings and Samples
After checking and verifying all field measurements, the Contractor shall submit five (5)
copies of all Shop Drawings to the Architect. The Shop Drawings shall have been checked
and stamped with the approval of the Contractor and otherwise identified as required by
the Architect. The data shown on the Shop Drawings will be complete with respect to
dimensions, design criteria, materials of construction, and the like. The Contractor will also
submit to the Architect for the Architect's file, all samples required by the Contract
Documents. All samples will have been checked and stamped with the approval of the
Contractor, identified clearly as to material, manufacturer, any pertinent catalog numbers,
and the use for which it is intended.
At the time of each submission, the Contractor will provide written notification to the
Architect concerning any deviations that the Shop Drawing or sample may have from the
requirements of the Contract Documents. The Architect will review the Shop Drawings
and samples, but this review shall be only for conformance with the design concept of the
Project and for compliance with the information given in the Contract Documents.
No Work requiring a Shop Drawing or sample submission shall be initiated until the
submission has been delivered to the Architect. The review of Shop Drawings or
-14-
samples by the Architect shall not relieve the Contractor from its responsibility for any
deviations at the time of submission unless the Architect has given written approval to the
specific deviation, nor shall any review or approval by the Architect, relieve the Contractor
from responsibility for errors or omissions in the Shop Drawings.
2.14. Contractor's Supervision and Superintendence
The Contractor will supervise and direct the Work efficiently and with its skill and
attention. The Contractor will be responsible for the means, methods, techniques, safety,
sequences, and procedures of construction. Before undertaking the Work, Contractor will
carefully study the Contract Documents and check and verify all figures shown thereon
and all field measurements. The Contractor will immediately file a written report to the
Owner concerning any conflict, error, or discrepancy which it discovers. The Contractor
will be responsible for seeing that the finished Work complies accurately with the Contract
Documents. The Contractor shall give constant attention to the Work to facilitate in every
way possible the progress thereof, and Contractor shall cooperate with the Owner and
Owner's authorized representatives, including, but not limited to, Engineers, Resident
Project Representatives, Inspectors, and other Contractors, although Contractor may
subcontract such responsibility to its subcontractors.
The Contractor shall have a competent superintendent on the Work at all times who is fully
authorized as the Contractor's agent on the Work. All communications given to the
superintendent shall be as binding as if given to the Contractor. The Contractor, or its
superintendent, shall be capable of reading and thoroughly understanding the Plans and
Specifications and shall receive and fulfill instructions from the Owner or its authorized
representative.
Knowledge of the Work, familiarity with all pertinent codes and ability to clearly
communicate with subcontractors at all times are required of Contractor on this project.
The Contractor will provide competent, suitably qualified personnel to plan and layout the
Work, and perform the Work and construction as required by the Contract Documents.
Contractor will at all times maintain good discipline and order among his employees at the
site.
2.15. Safety and Protection
The Contractor will be responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with the Work. Contractor will take all reasonably
necessary safety precautions and will provide the necessary protection to prevent damage,
injury, or loss to:
(a) all employees on the Work and other persons who may be affected thereby,
(b) all Work and all Materials or Equipment to be incorporated into the Work,
whether in storage on or off the site, and
-15-
(c) other property at the site or adjacent thereto, including but not limited to
shrubs, lawns, walks, pavements, roadways, structures, and utilities not designated
for removal, relocation, or replacement in the course of construction.
The Contractor will erect and maintain all reasonably necessary safeguards as required by
the conditions and progress of the Work, including posting danger signs and other
warnings against hazards and promulgating safety regulations. The Contractor will notify
in writing owners of adjacent utilities when prosecution of the Work may affect them.
When the use or storage of explosives or other hazardous materials is necessary for the
prosecution of the Work, the Contractor will exercise the reasonable care and will carry
on such activities under the supervision of properly qualified personnel and in compliance
with all applicable law. All damage, injury, or loss to any person or property caused, , in
whole or in part, by the Contractor, any subcontractor, or anyone employed by any of
them or anyone for whose acts any of them may be liable, will be remedied or paid for as
applicable by the Contractor. The Contractor shall at all times comply with the
requirements of the Occupational Safety Standards and any other applicable standards
that are set forth by federal, state, municipal, or any other governmental or regulatory
agency.
The Contractor will designate a responsible member of its organization at the site whose
duty shall be the prevention of accidents. This person shall be the Contractor's
superintendent unless otherwise designated in writing by the Contractor to the Owner.
In emergencies affecting the safety of persons or the Work or property at the site or
adjacent thereto, the Contractor, without special instruction or authorization from the
Owner, is obligated to act, at its discretion, to prevent threatened damage, injury, or loss.
The Contractor will give the Owner prompt, written notice of any significant changes in
the Work or deviations involved. If the Contractor believes additional emergency work
by it, which arose from causes beyond its control, entitles it to an increase in the Contract
Price or an extension of the Contract Time it may make a request therefore as provided
herein.
2.16. Access to the Work and Uncovering Finished Work
The Owner and its representatives will at all times have access to the Work. The
Contractor will facilitate such access and observation of the Work as well as any
inspection or testing thereof by others.
If any Work is covered contrary to the request of the Owner, it must be uncovered for
observation and replaced at the Contractor's expense, if requested by the Owner.
If any Work has been covered which the Owner has not specifically requested to observe
prior to its being covered, or if the Owner considers it necessary or advisable that covered
Work be inspected or tested by others, the Contractor, at the Owner's request, will
uncover, expose, or otherwise make available for observation, inspection or testing that
portion of the Work in question. The Contractor will furnish all necessary labor, material,
and equipment to comply.
If it is found that such Work is defective or does not meet the requirements of the Contract
-16-
Documents, the Contractor will bear all the expenses of such uncovering, exposure,
observation, inspection, testing, and professional services. If, however, such Work is
found not to be defective and meets the requirements of the Contract Documents, the
Contractor may request and may be granted an increase in the Contract Price and/or
extension of the Contract Time as compensation, but only for the amount or time directly
attributable to such uncovering, exposure, observation, inspection, testing, and
reconstruction.
2.17 Changes in the Work
Without invalidating the Agreement, the Owner may, at any time or from time to time,
order additions, deletions, or revisions in the Work as may be necessary or desirable to
complete the work originally intended in a manner acceptable to the Owner. The
alterations that are for work within the general scope of the Contract Documents shall be
authorized by Change Orders issued by the Owner. Upon receipt of a Change Order, the
Contractor will proceed with the Work involved. All such Work shall be executed under
the applicable conditions of the Contract Documents and as directed by the Owner. If any
Change Order causes an increase or decrease in the Contract Price or an extension or
shortening of the Contract Time, an equitable adjustment will be made pursuant to the
construction contract.
The Contractor shall include all documentation necessary to complete a Change Order or
change order request including, but not limited to, cost invoices for materials and labor,
and subcontractor invoices. Contractor's overhead and profit as set forth in the contract
shall be calculated and included in the Change Order.
For contracts based on Guarantee Maximum Price (GMP), the Construction Manager at
Risk or Design Builder shall NOT be entitled to a percentage mark-up on any change
order Work, unless the change order increases the GMP, and the GMP increase is
approved by the governing body of the Owner.
The Owner may authorize minor changes or alterations in the Work not involving extra
cost or delay and not inconsistent with the overall intent of the Contract Documents. These
may be accomplished by a Field Order.
Additional work performed by the Contractor without authorization of a Change Order
will not entitle Contractor to an increase in the Contract Price or an extension of the
Contract Time, except in the case of an emergency as provided herein.
Upon execution of a Change Order by Owner, Contractor and/or Architect or Engineer,
associated costs and time issues claimed by Contractor regarding that change are final and
not subject to increase.
2.18. Changes of Contract Price
The Contract Price constitutes the total compensation payable to the Contractor for
performing the Work. All duties, responsibilities, and obligations assigned to, or
undertaken by, the Contractor shall be at its expense without change in the Contract Price.
-17-
A change of Contract Price may only be authorized by a Change Order. If the Contractor
is entitled by the Contract Documents to make a request for an increase in the Contract
Price, the request shall be made in writing and delivered to the Owner within fifteen (15)
days of the occurrence of the event -giving rise to the request. The value of any Work
covered by a Change Order or of any request for an increase or decrease in the Contract
Price shall be determined in one of the following ways as determined by the Owner:
(a) Where the Work involved is covered by unit prices contained in the Contract
Documents, by application of unit prices to the quantities of items involved.
Approval of undisputed amounts shall be paid to contractor;
(b) By mutual acceptance of a lump sum; or,
(c) By cost and a mutually acceptable fixed amount for overhead and profit.
For such requests, the Contractor shall submit an itemized cost breakdown together with
supporting data.
The amount of credit to be allowed by the Contractor to the Owner for any such change
which results in a net decrease in cost will be the amount of the actual net decrease as
accepted by the Owner. When both additions and credits are involved in anyone change,
the approved overhead and profit shall be figured based on the net increase, if any.
City Manager may approve Change Orders for less than $50,000.00. City Council must
approve all change orders for $50,000.00, or more. Required approvals must be secured
prior to the commencement of any work associated with Change Orders. At no time may
the initial contract price approved by City Council be increased by Change Orders totaling
more than 25% of the initial contract price.
2.19. Extra Work.
Should acceptable completion of the Work require the Contractor to perform an item of
work for which no basis of payment has been provided in the original Contract Documents
or previously issued Change Orders or supplemental agreements, then same shall be
called "Extra Work". Extra Work that is within the general scope of the Contract shall be
covered by written Change Order. Change Orders for such Extra work shall contain
agreed unit prices for performing the Change Order work in accordance with the
requirements specified in the Change Order, and shall contain any adjustment to the
Contract Time that, in the Owner's opinion, is necessary for completion of such Extra
Work.
Extra Work that is necessary for acceptable completion of the Project, but is not within
the general scope of the Work covered by the original Contract Documents shall be
covered by a "Supplemental Agreement". Any claim for payment of Extra Work that is
not covered by written agreement (Change Order or Supplemental Agreement) shall be
rejected by the Owner. Pending an agreement on the Change Order for Extra Work and
subject to applicable provisions for retainage, undisputed quantities of work shall be paid
to the contractor
-18-
2.20. Unauthorized Work
WORK DONE CONTRARY TO THE INSTRUCTIONS OF THE OWNER, WORK
DONE BEYOND THE LINES SHOWN OR AS GIVEN IN THE CONTRACT
DOCUMENTS, OR ANY EXTRA WORK DONE WITHOUT AN OWNER -
APPROVED CHANGE ORDER WILL BE CONSIDERED AS UNAUTHORIZED,
AND IT WILL NOT BE PAID FOR UNDER THE PROVISIONS OF THE
AGREEMENT. WORK SO DONE MAY BE ORDERED REMOVED OR REPLACED
AT THE CONTRACTOR'S EXPENSE.
2.21. Neglected Work
If the Contractor should neglect to prosecute the Work in accordance with the Contract
Documents and progress schedule, the Owner, after seven (7) days written notice to the
Contractor and an opportunity to correct, may make good such deficiencies, and the cost
thereof including compensation for additional professional services shall be charged
against the Contractor. A Change Order shall be issued incorporating the necessary
revisions in the Contract Documents and including an appropriate reduction in the
Contract Price. If the payments then or thereafter due the Contractor are not sufficient to
cover such amount, the Contractor will pay the difference to the Owner within ten (10)
days of written demand setting forth the amount due accompanied with supporting
documentation.
2.22. Conformity with Contract Documents
All Work, Materials, and Equipment furnished shall be in reasonably close conformity
with the lines, grades, grading sections, cross sections, dimensions, material requirements,
and testing requirements that are specified (including specified tolerances) in the Contract
Documents.
If the Owner, after consultation with, and agreement by, the Architect, finds the Materials
or Equipment furnished, Work performed, or the finished product are not within
reasonably close conformity with the Contract Documents, but that the portion of the
Work affected will result in a finished product having an acceptable level of safety,
economy, durability, and workmanship, the affected Work will be accepted and remain
in place. The Owner and Architect will determine, subject to Contractor's right to dispute,
the basis of acceptance and will provide for an adjustment in the Contract Price for the
affected portion of the Work to the extent there is a diminution in value. Changes in the
Contract Price shall be covered by a Change Order or Supplemental Agreement as
applicable.
If the Architect finds the Materials and Equipment furnished, Work performed, or the
finished product are not in reasonably close conformity with the Contract Documents and
have resulted in an unacceptable finished product, the affected Work, Materials or
Equipment shall be removed and replaced, or otherwise corrected by and at the expense
of the Contractor, in accordance with the Owner's written orders.
2.23. Change of Contract Time
110
The Contract Time may only be changed by a Change Order. If the Contractor is entitled
by the Contract Documents to make a request for an extension in the Contract Time, the
request shall be in writing and delivered to the Owner within fifteen (15) days of the
occurrence of the event -giving rise to the request. All requests for adjustment in the
Contract Time shall be as determined, or approved by, the Owner. Any change in the
Contract Time resulting from any such request shall be incorporated into a Change Order.
The Contract Time will be extended in an amount equal to time lost due to delays beyond
the control of the Contractor. Such delays shall include, but not be restricted to, acts or
neglect by owner, architect, any separate Contractor employed by the Owner, fires, floods,
labor disputes, epidemics, abnormal weather conditions, or acts of God, unanticipated
subsurface conditions, inability to secure permits, or unsafe materials.
Time limits stated in the Contract Documents are the essence of the Agreement.
2.24. Warranty and Guarantee Regarding Work
The Contractor warrants and guarantees to the Owner that all Materials or Equipment will
be new unless otherwise specified, free from faults or defects, and that all Work will be
performed in a workmanlike manner, and in accordance with the specifications and
requirements of the Contract Documents as well as of any required or applicable
regulations, codes, inspections, test, or required approvals. All unsatisfactory, faulty or
un-workman like Work, and all Work not conforming to the requirements of the Contract
Documents or of such inspections, tests, or approvals shall be considered defective.
Prompt notice of all defective Work shall be given to the Contractor. All defective Work,
whether or not in place, maybe rejected.
If required by the Owner, prior to approval of final payment as set forth in paragraph 4.8,
the Contractor will promptly, without cost to the Owner, either correct any defective
Work, whether or not fabricated, installed, or completed, or remove it from the site and
replace it with non -defective Work. The Contractor will also bear the expenses of making
good all work of others destroyed or damaged by its correction, removal, or replacement
of Contractor's defective Work. If the Contractor does not diligently proceed to correct
such defective Work, or remove and replace such rejected Work within a reasonable time,
as required by written notice from the Owner, the Owner may have the deficiency
corrected or the rejected Work removed and replaced. All direct and indirect costs of such
correction or removal and replacement, including compensation for additional
professional services shall be charged to the Contractor, and an appropriate Change Order
shall be issued deducting all such costs from the Contract Price.
Prior to the expiration of one (1) year after the date of Final Completion (or such longer
period of time as may be prescribed by law or by the terms of any applicable special
guarantee or warranty required by the Contract Documents), if any Work is found to be
defective, the Contractor will, as set forth in this provision and in paragraph 4.9, promptly
and without cost to the Owner, and in accordance with the Owner's written instruction,
either correct such defective Work, or, if it has been rejected by the Owner, remove it
from the site and replace it with non -defective Work. Any such corrected or replaced
defective work shall be warranted by the Contractor for one year from, and after, such
-20-
correction or replacement of work.
If the Contractor does not promptly comply with the terms of such instructions, the Owner
may have the defective Work, corrected, or rejected Work removed and replaced, and all
direct and indirect costs of such removal and replacement, including compensation for
additional professional services, will be paid by the Contractor. In such case, a Change
Order shall be issued incorporating the necessary revisions in the Contract Documents,
including appropriate reduction in the Contract Price. Should the remaining contract
balance be insufficient to complete the works, Owner will seek reimbursement from the
Contractor and/or its surety for the damages in excess of the remaining contract balance.
If the acceptance occurs after approval of final payment, an appropriate amount shall be
paid by the Contractor within thirty (30) days of written demand for payment
accompanied by supporting documentation.
2.25. Waivers of Claims and Continuing Obligations
The Contractor's obligation to perform the Work in accordance with the Contract
Documents shall be absolute. Neither approval of any progress or final payment by the
Owner, nor the issuance of a certificate of Substantial Completion, nor any payment by
the Owner to the Contractor under the Contract Documents, nor any use or occupancy of
the Project or any part thereof by the Owner, nor any act of acceptance by the Owner nor
any failure to do so, nor any correction of faulty or defective Work by the Owner shall
constitute an acceptance of Work not in accordance with the Contract Documents.
The Acceptance of Final Payment by the Contractor shall constitute a waiver of all claims
by the Contractor against the Owner other than those previously made in writing and
unresolved at the time final payment is accepted.
2.26. Owner's Right to Stop or Suspend Work
The Owner may order the Contractor to stop the Work, or any portion thereof, if the
Contractor performs un-workmanlike or defective Work, fails to supply sufficient skilled
workmen or suitable Materials or Equipment, fails to provide adequate supervision, fails
to make prompt payment to Subcontractors, fails to make prompt payment for labor,
Materials or Equipment, or fails for any other similar cause jeopardizing the integrity of
the Work. The Owner may suspend the Work without liability to the Contractor or
subcontractors until the cause for the stop work order has been eliminated. No additional
Contract Time and no increase in Contract Price will be awarded in such cases.
The Owner may, at any time, and without fault of the Contractor, suspend the Work or
any portion thereof for a period of not more than ninety (90) days by notice in writing to
the Contractor and the Owner shall fix the date on which Work shall be resumed. The
Contractor will resume the Work on the date so fixed. The Contractor will be allowed an
increase in the Contract Price and/or an extension of the Contract Time directly
attributable to suspension without cause.
2.27. Owner's Right to Terminate
Owner may, by written notice, terminate this contract in whole or in part at any time,
either for the Owner's convenience or because of failure to fulfill the contract obligations.
-21-
Upon receipt of such notice, services shall be immediately discontinued (unless the notice
directs otherwise) and all materials as may have been accumulated in performing this
contract shall be delivered to the Owner.
(a) If the termination is for the convenience of the Owner, an equitable
adjustment in the contract price shall be made.
(b) If the termination is due to Contractor's failure to fulfill the Contractor's
obligations under the contract documents, the Owner may take over the
Work and prosecute the same to completion by contract with third parties
or otherwise. In such case, the Contractor shall be liable to the Owner for
any additional cost occasioned to the Owner thereby and an equitable
adjustment shall be made in the Contract Price.
(c) The rights and remedies of the Owner provided in this clause are in
addition to any other rights and remedies provided by law or under this
contract.
2.28. Contractor's Right to Stop Work or Terminate
If, through no act or fault of the Contractor, the Work is suspended for a period of more
than ninety (90) days or, after written notice and opportunity to cure within thirty (30)
days, and the Owner, without disputing the claim, fails to act as directed in the Contract
Documents or fails to pay the Contractor any authorized amount, then the Contractor may,
upon seven (7) days written notice to the Owner:
(a) Terminate the Agreement and recover from the Owner payment for all Work
executed, reasonable expenses and agreed profit margin of work performed,
completed, and accepted by the Owner, if any; or
(b) Stop the Work until Contractor has been paid all amounts then past due under
the Agreement.
2.29. Contractor's Management Personnel
Contractor shall employ a competent person, or persons, who will be present at the Project
Site during the progress of the Work to supervise or oversee the Work. Contractor shall
advise Owner, in writing, of the names and contact information for Contractor's
superintendents or management personnel for the Work. The competent persons are
subject to the approval of Owner or Owner's designee (Architect/Engineer). Contractor
shall not change approved staff during the course of the Project without the written
approval of Owner, which will not be unreasonably withheld.
2.30. Abandonment by Contractor
In case the Contractor should abandon the Work and fail or refuse to resume the Work
within twenty (20) days after written notification from the Owner, or if the Contractor
refuses or fails to comply with the orders of the Owner, when such orders are consistent
with the Contract Documents, then, where performance and payment bonds exist, the
Surety on the Bonds shall be notified in writing and directed to complete the Work, and a
copy of said notice shall be delivered to the Contractor.
-22-
After receiving notice of abandonment, the Contractor shall not remove from the Work
any machinery, Equipment, tools, Materials, or supplies then on the job, but the same,
together with any Materials and Equipment under contract for the Work, may be held for
use on the Work by the Owner or the Surety on the performance and payment bonds, or
another Contractor in completion of the Work, and the Contractor shall not receive any
rental or credit therefore (except when used in connection with Extra Work, where credit
shall be allowed as provided in this Agreement), it being understood that the use of such
Equipment and Materials will ultimately reduce the cost to complete the Work and be
reflected in the final settlement. Where there is no performance and payment bond
provided or in case the Surety should fail to commence compliance with the notice for
completion provided for, within ten (10) days after service of such notice, the Owner may
provide for completion of the Work in either of the following elected manners:
(a) The Owner may employ such labor and use such Equipment, tools, Materials,
and supplies as the Owner deems necessary to complete the Work and charge the
expense of such labor, machinery, Equipment, tools, Materials and supplies to the
Contractor. The expense(s) so charged shall be deducted and paid by the Owner
out of such moneys as may be due, or that may thereafter become due by virtue of
this Agreement. In case such expense is less than the sum which would have been
due had the Work been completed by the Contractor, then said Contractor shall
receive the difference. In case such expense is greater than the sum which would
have been payable under this Agreement, then the Contractor, or its Surety, shall
pay the amount of such excess to the Owner; or
(b) The Owner may contract with a third party or third parties for the completion
of the Work under substantially the same terms and conditions provided for in this
Agreement. In case of any increase in cost to the Owner under the new agreement,
such increase shall be charged to the Contractor and the Surety. However, should
the cost to complete the Work be less, the Contractor and its Surety shall be
credited with the difference. When the Work shall have been Substantially
Completed a complete itemized statement of the contract amounts certified to by
the Owner, shall be prepared, and delivered to the Contractor and its Surety,
whereupon the Contractor or its Surety shall pay the balance due if any within
fifteen (15) days of the date of such Certificate of Completion.
In the event the statement of accounts shows that the cost to complete the Work is
less than the Contract Price; or when the Contractor or its Surety shall pay the balance
shown to be due by them to the Owner, then all machinery, Equipment, tools,
Materials or supplies left on the site of the Work shall be turned over to the Contractor
or its Surety. Should the cost to complete the Work exceed the Contract Price, and
the Contractor or its Surety fail to pay the amount due the Owner within the time
designated hereinabove, and there remains any machinery, equipment, tools,
materials, or supplies on the site of the Work, notice, together with an itemized list of
such equipment and materials, shall be mailed to the Contractor and its Surety. Such
property shall be held at the risk of the Contractor and its Surety. After fifteen (15)
days from the date of said notice, the Owner may sell such machinery, equipment,
-23-
tools, materials, or supplies and apply the net sum derived from such sale to the credit
of the Contractor and its Surety. Such sale may be made at either public or private
sale, with or without notice, as the Owner may elect. The Owner shall release any
machinery, equipment, tools, materials, or supplies, which remain on the Work and
belong to persons other than the Contractor or its Surety, to their proper owners.
3. Insurance Requirements
3.1 Maintenance of Insurance
During all phases of the Project, the Contractor shall purchase and maintain insurance as set
forth herein. Such insurance shall be written for not less than the following limits as set forth
below:
3.1.1 Certificates of Insurance
The Contractor must provide the Owner with certificates of insurance prior to
beginning the Work. Each certificate of insurance must include the description of the
Work being covered. The certificates are to be approved by Owner before work
commences. The certificates of coverage must be signed by a person authorized by
the insurer to bind coverage on its behalf. The certificates must contain enough detail
to allow the Owner to confirm that the following requirements have been fulfilled by
the Owner's insurance coverage. Owner reserves the right to require complete,
certified copies of insurance policies at any time. Contractor shall name the Owner
and Architect or Engineer as additional insureds on the Commercial General Liability,
Commercial Automobile Liability, and Commercial Umbrella Liability policies, and
such insurance shall be primary to any other insurance. Approval of the certificates
or policies by the Owner does not relieve the Contractor of its duty of indemnification.
If the coverage period shown on the current certificate of coverage ends during the
duration of the Work, the Contractor shall, prior to the end of the coverage period,
provide a new certificate of coverage showing extension of the coverage.
3.1.2 Required Limits of Insurance
The required limits of insurance coverage may be satisfied by any combination of
primary, excess, or umbrella liability insurance coverage, provided the primary policy
complies with the requirements detailed in the contract Agreement and the
excess/umbrella policies are written on a "following form" basis. The Contractor may
maintain reasonable deductibles, subject to approval by the Owner. The required limits
of insurance do not establish a limit on the Contractor's liability.
3.1.3 Required Policy Terms
Each required insurance policy shall:
-24-
3.1.3.1 Waive all rights of subrogation against the Owner for losses arising
from Work performed by the Contractor for the Owner;
3.1.3.2 Require the insured to immediately notify the Owner of any
material change in the insurance coverage;
3.1.3.3 Provide the Owner with 30 day notice of cancellation, non -
renewal, or termination of insurance by return receipt mail (10 days as
respects non-payment of premium);
3.1.3.4 Be written by an insurer that is licensed to do business in Texas,
classified by the Texas Department of Insurance as an "admitted" insurer,
and maintains and A.M. Best rating of ANII or better throughout the
Project until the Owner has accepted the work;
3.1.3.5 Be written on forms that have been filed and approved by the Texas
Department of Insurance;
3.1.3.6 Be primary insurance as respects Owner, its officers, elected
officials, employees, agents and representatives. Any insurance
maintained by Owner will be in excess of Contractor's insurance and will
not contribute to it;
3.1.3.7 Apply separate to each insured against whom a claim is made or
suit brought, except with respect to the limits of the insurer's liability;
3.1.3.8 Be maintained from the time Work commences until services are
completed and accepted by Owner; and,
3.1.3.9 Must not contain any special limitations on the scope of coverage
provided to the Owner, its officers, elected officials, employees, agents
and representatives.
3.1.4Subcontractors and Trade Contractors as Insureds
The Contractor shall include all contractors, subcontractors and trade contractors as
insureds under its policies or furnish Owner separate certificates for each contractor,
subcontractor and trade contractor. All coverage required of contractors, subcontractors
and trade contractors shall be subject to all of the insurance requirements detailed above
except each contractor, subcontractor and trade contractor's general aggregate limit on
Commercial General Liability shall be not less than $1,000,000.00. The requirements of
the Commercial Umbrella coverage do not apply to the contractors, subcontractors and
trade contractors.
3.1.5 State Mandated Workers' Compensation Insurance Requirements
-25-
The Contractor shall provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any coverage agreements, meeting the
statutory requirements of Texas Workers' Compensation Act, Title 5 Subchapter A of
the Texas Labor Code (Texas Labor Code Chapter 406) for all employees of the
Contractor providing services on the Project, for the duration of the Project
3.1.5.1 Definitions (applicable to Part3.1.5)
a. Certificate of Coverage ("certificate") - A copy of a certificate of
insurance or a certificate of authority to self -insure issued by the
Texas Department of Insurance Division of Workers'
Compensation (Workers' Compensation) showing statutory
workers' compensation insurance coverage for the persons or
entities' employees, executives, officers, partners and proprietors
providing services on the Project, for the duration of the Project.
b. Duration of the Project - Includes the time from the beginning of
the Work on the Project until the Contractor's work on the Project
has been completed and accepted by Owner.
C. Persons providing services on the Project ("subcontractor" in
Section 406.096 of the Texas Labor Code). Includes all persons or
entities performing all or part of the services the Contractor had
undertaken to perform on the subject, regardless of whether the
person contracted directly with the Contractor and regardless that
person has employees. This includes, without limitation,
independent contractors, subcontractors, sub -contractors, motor
carriers, Owner -operators, employees, executives, officers,
partners and proprietors of any such entity, trade contractors, or
employees of any entity which furnishes persons to provide
services on the Project.
d. Services - Include, without limitation, providing, hauling, or
delivering equipment or materials, or providing labor,
transportation, or other service related to the Project.
3.1.5.2 The Contractor shall provide workers' compensation insurance coverage,
based on proper reporting of classification codes and payroll amounts and
filing of any coverage agreements, which meet the statutory requirements
of the Texas Labor Code (401.011 (44)) for all employees of the
Contractor providing services on the Project, for the duration of the
Project.
3.1.5.3 The Contractor must provide a certificate of coverage to Owner prior to
execution of this Agreement.
3.1.5.4 If the coverage period shown on the Contractor's current certificate of
-26-
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
Owner showing that coverage has been extended.
3.1.5.5 The Contractor shall obtain from each providing services on the Project,
and provide to Owner:
a. A certificate of coverage, prior to that person beginning Work on
the Project, so Owner will have on file certificates of coverage
showing coverage for all persons providing services on the project;
and,
b. No later than seven days after receipt by the Contractor, a new
certificate showing extension of the coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the Project.
3.1.5.6 The Contractor shall retain all required certificates of coverage for the
duration of the Project and for three years thereafter.
3.1.5.7 The Contractor shall notify Owner 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 the coverage of any
person providing services on the Project.
3.1.5.8 The Contractor shall post on the Project site a notice, in the text, form and
manner prescribed by the Workers' Compensation, 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.
3.1.5.9 The Contractor shall contractually require each person with whom it
contracts to provide services on the Project, to:
a. Provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any coverage agreements, which
meet the statutory requirements of the Texas Labor Code [401.011 (44)]
for all employees of the Contractors, Subcontractors and Trade
Contractors providing services on the Project, for the duration of the
Project;
b. Provide to the Contractor, prior to that person beginning work
on the Project, a certificate of coverage showing that coverage is
being provided for all employees of the person providing services
on the Project, for the Duration of the Project.
c. Provide the Contractor, prior to the end of the coverage period,
a new certificate of coverage showing extension of the coverage, if
the coverage period shown on the current certificate of coverage
-27-
ends during the Duration of the Project.
d.Obtain from each other person with whom it contracts, and
provide to the Owner:
(i) A certificate of coverage, prior to the other person
beginning work on the project;
(ii) A new certificate of coverage showing extension of
the coverage, if the coverage period shown on the current
certificate of coverage ends during the duration of the
Project;
(iii) Retain all required certificates of coverage on file
for the duration of the Project and for three years thereafter;
(iv) Notify Owner 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 the coverage of any person providing
services on the Project; and,
(v) Contractually require each person with whom it
contracts to perform as required by clauses (i) - (iv) of this
subparagraph, with certificates of coverage, to be provided
to the person for whom they are providing services.
e. The Contractor's failure to comply with any of the
provisions of Paragraph 8.1.5 is a breach of contract by the
Contractor which entitles Owner to declare this Agreement void if
the Contractor does not remedy the breach within ten (10) days
after notice of breach from Owner.
3.1.5.10 In the event that Contractor has workers (Whether employees, volunteers
or contract labor) present on the job site and working in any manner on the Project who
are not covered at all times by the required coverages for workers' compensation,
Contractor shall be deemed in default of the construction contract and Owner shall be
entitled to declare the contract void if Contractor does not remedy the breach within ten
days after receipt of notice of breach from the Owner. Contractor shall further
immediately remove from the work site any such workers not covered by the required
coverages for workers' compensation from the job site.
3.2.1 Builders Risk Insurance
The Contractor shall purchase and maintain Builders Risk Insurance with limits that are
at all times sufficient to cover the value of the exposure. The policy should be written to
cover the interests of the Owner, the Contractor, subcontractors, trade contractors, and
-28-
all subcontractors. Further, the policy shall:
3.2.1.1 Stipulate that the insurer will not seek recovery, through
subrogation or otherwise, against any insured (even if their negligence
causes a covered loss), regardless of the extent of the insured's
insurable interest.
3.2.1.2 Be written on an "all-risk" basis, and shall provide coverage
for fire, extended coverage and physical loss or damage including
theft, vandalism, malicious mischief, collapse, sewer backup,
seepage, hydrostatic testing, pneumatic testing, mechanical testing
and normal settling.
3.2.1.3 Apply to foundations, false work, temporary buildings, and
debris removal including demolition occasioned by enforcement of
applicable legal requirements.
3.2.1.4 Provide coverage for consequential damage ensuing from
faulty workmanship, material, construction, or design (resulting
damage only, not cost of making good the workmanship).
3.2.1.5 Be maintained until the Owner has accepted the Project as
completed or until no one other than the Owner has an insurable interest
in the Project.
3.2.1.6 Cover portions of property stored off -site (after written approval of
the Owner) at the value established by the Owner and portions of the work
in transit.
4. Contract Measurement and Payment
4.1. Quantities and Measurements
No extra or customary measurements of any kind will be allowed, but only the actual
measured or computed length, area, solid contents, number, and weight shall be
considered, unless otherwise specifically provided.
4.2. Estimated Quantities
The Contract Documents are intended to show clearly all Work to be done and
Material and Equipment to be furnished hereunder. Where the evaluation quantities
are shown for the various classes of the Work, they are to be used only as a basis for
comparing the proposals offered for the Work. It is understood and agreed that the
actual amount of the Work to be done and Material and Equipment to be furnished
under the Project Agreement will not be reflected by these evaluation quantities. The
basis for payment shall be for the actual amount of the Work done and the Material
and Equipment furnished under the terms contained within the Project Agreement.
Where payment is based on the unit price method, the Contractor agrees that it will
make no claim for damages, or anticipated profits on account of any differences which
-29-
may be found between the quantities of the Work actually done, the Material and
Equipment actually furnished under the Project Agreement and the evaluation
quantities provided.
4.3. Price of Work
In consideration of the furnishing of all the necessary labor, Equipment, and Material,
and the completion of all Work by the Contractor, and on the completion of all Work
and of the delivery of all Material and Equipment embraced in this Agreement in full
conformity with the Specifications and stipulations contained within the Contract
Documents, the Owner agrees to pay the Contractor the Contract Price. The
Contractor hereby agrees to receive such prices in full for furnishing all Material,
Equipment and all labor required for the aforesaid Work, also for all expense incurred
by it, and for well and truly performing the same and the whole thereof in the manner
and according to this Agreement and the Contract Documents. The unit prices
provided in the Bid shall be the actual unit price for each item when considering the
cost of providing all labor, material, equipment, resources, and profit to be recovered
by the Contractor for such Work and without consideration of association with any
other item of Work.
4.4. Partial Payment Estimates
The Contractor shall subdivide the Work into component parts in sufficient detail to
serve as the basis for progress payments during construction.
4.4.1. Deadline
The Contractor shall prepare a statement showing as completely as practicable
the total value of the Work done by the Contractor. The statement shall be
deemed complete and received once all corrections to the Work required by
Owner, if any, have been made. The Owner's representative shall submit a
recommendation for approval upon completion of all corrections. Failure by
the Owner to note corrections prior to payment does not constitute acceptance
of the Work nor waive any remedy provided for in the Contract Documents
or under law.
4.4.2. Payment
The Owner shall pay the total amount of the Contractor's statement to the
Contractor as due under the contract documents, less all previous payments and
all further sums that may be retained or withheld by the Owner under
the terms of this Agreement.
4.4.3. Warranty of Title
The Contractor warrants and guarantees that clear ownership title to all Work,
Materials, and Equipment covered by a Partial Payment Estimate, whether
incorporated in the Project or not, will have passed to the Owner at the time of
making the Partial Payment Estimate free and clear of all liens, claims, security
interests, and encumbrances (hereinafter in these General Conditions referred to
as it Liens"); and that no Work, Materials, or Equipment covered by a Partial
Payment Estimate will have been acquired by the Contractor or by any other
-30-
person performing the Work at the site or furnishing materials and equipment
for the Project subject to an agreement under which an interest therein, or
encumbrance thereon, is retained by the seller, or otherwise imposed by the
Contractor or such other person.
4.4.4 Retainage
Partial payment retainage by the Owner shall be at the maximum rate
prescribed by the laws, rules, or regulations established by the State of
Texas and shall in no case exceed five percent (5%). See this Part 4,
"Contract Measurement and Payment" for specific payment methods.
4.5. Approval of Payments
The Partial Pay Estimate shall be based on on -site observations of the Work in progress,
and shall verify that the Work has progressed to the point indicated; that the quality of the
Work is in accordance with the Contract Documents (subject to an evaluation of the Work
as a functioning Project upon Substantial Completion, to the results of any subsequent
test called for in the Contract Documents and any qualifications stated in the approval);
and that the Contractor is entitled to payment of the amount approved. However, by such
payment, the Owner shall not thereby be deemed to have represented that it has made
exhaustive or continuous on -site inspections to check the quality or the quantity of the
Work, or that it has reviewed the means, methods, techniques, sequences, and procedures
of construction, or that it has made any examination to ascertain how, or for what purpose,
the Contractor has used the moneys paid, or to be paid, to it on account of the Contract
Price.
The Owner may nullify any such payment previously requested to such extent as may be
necessary to provide protection from loss because:
(a) The Work is defective, neglected, or omitted;
(b) Claims relating to the work have been filed or there is reasonable, confirmed
evidence indicating the probable filing thereof; that are uninsured or not
secured by bond.
(c) The Contract Price has been reduced because of Change Orders or Field
Changes;
(d) The Owner has been required to correct defective Work or complete
neglected Work;
(e) Unsatisfactory prosecution of the Work, including failure to clean up as
required herein; or
(f) Material installation has not been tested as required by the terms of the
Contract Documents.
4.6. Substantial Completion
-31-
Substantial Completion is the stage in the progress of the Work when the Work, or
designated portion thereof, is sufficiently complete in accordance with the Contract
Documents so that the Owner can occupy or utilize the Work for its intended use.
(a) When the Contractor considers that the Work or a portion thereof which the
Owner agrees to accept separately is substantially complete, the Contractor shall
prepare and submit to the Owner's representative (Architect, Engineer or Project
Manager, as appropriate) a comprehensive list (punch list) of items to be
completed or corrected prior to final payment. Failure to include an item on such
list does not alter the responsibility of the Contractor to complete all Work in
accordance with the Contract Documents. In addition, the Owner's
representatives will prepare a punch list of items that need to be completed,
corrected, or repaired prior to final payment.
1. Contractor shall make certain that the project is substantially
complete
and ready for inspection and punch list completion.
2. Contractor shall provide its punch list to the Owner's representative
prior to Substantial Completion inspection.
3. Contractor shall assist the Owner and Owner's Architect, Engineer, or
other involved professionals in establishing a date and time agreeable to
the parties for such punch list and inspection. If, during the inspection the
Owner, Owner's Architect, or other involved professional should
determine that the work is not substantially complete, the inspection will
end, and the Contractor will be given time to Substantially Complete as
determined by the Owner. If the Owner does not consider the Project
substantially complete, the Contractor will be notified in writing of the
reasons as soon as possible thereafter.
4. Should partial acceptance of a specific area of the work be necessary,
then this may be accomplished and the area approved separately from the
remainder of the work. Such acceptance shall be described fully in writing,
accepted by all interested parties, and meet all of the requirements of the
Contract Documents and Specifications at the time of acceptance.
5. Upon receipt of the latest punch list or other items called to the attention
of the Contractor, the Contractor shall respond with a date reasonable and
acceptable to all parties to fully complete the work. Any action in this
regard will not waive the Contractor's obligation to complete the project
on time as it relates to liquidated damages.
6. Upon Substantial Completion of the work, or designated portion
thereof, and upon application by the Contractor and certification by the
Owner's Architect, if applicable, the Owner shall make payment, reflecting
adjustment in retainage, for such work or portion thereof as provided in
the Contract Documents.
-32-
(b) When the Work, or designated portion thereof, is substantially complete, the
Owner's representative will prepare a Certificate of Substantial Completion which
shall establish the date of Substantial Completion, shall establish responsibilities
of the Owner and Contractor for security, maintenance, heat, utilities, damage to
the Work and insurance, and shall fix the time within which the Contractor shall
finish all items on the list accompanying the Certificate. Warranties required by
the Contract Documents shall commence on the date of Substantial Completion of
the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.
(c) The Certificate of Substantial Completion shall be submitted to the Owner and
Contractor for their written acceptance of responsibilities assigned to them in such
Certificate. Upon such acceptance and consent of surety, if any, the Owner shall
make payment of retainage applying to such Work or designated portion thereof.
Such payment shall be adjusted for Work that is incomplete or not in accordance
with the requirements of the Contract Documents pursuant to this Section 4.6.
4.7. Partial Utilization
Prior to final payment, the Owner shall have the right to take possession of, and use, any
completed or partially completed portions of the Work, notwithstanding the time for
completing the entire Work of such portions may not have expired, but such taking
possession and use shall not be deemed an acceptance of any Work not completed in
accordance with the Contract Documents. If such prior use increases the cost or delays
the Work, the Contractor may request in writing, in accordance with the process set forth
in these General Conditions, an increase in the Contract Price or extension of the Contract
Time, or both, as the Owner may determine to be reasonable.
4.8. Final Payment
Upon written notice from the Contractor that the Project is substantially complete, the
Owner and the Contractor will make a final inspection, and the Owner will notify the
Contractor in writing of any particulars in which this inspection reveals that the Work is
defective or incomplete. Owner may utilize a punch list of contract items requiring
completion to identify defective or incomplete work. The Contractor shall promptly make
such corrections or complete such work as are necessary to remedy such defects.
After the Contractor has completed any such corrections to the satisfaction of the Owner
and delivered all maintenance and operating instructions, schedules, guarantees, stock
materials bonds, certificates of inspection and other documents, Contractor may request
final payment. The final estimate shall be accompanied by such supporting data as the
labor and services performed and the material and equipment furnished. In lieu thereof
and as approved by the Owner, the Contractor may furnish receipts or releases in full,
including an affidavit of the Contractor showing that releases and receipts for all labor,
services, Material, and Equipment for which a Lien could be connected with the Work
have been paid or otherwise satisfied; and showing consent of the surety, if any, to final
payment. If any Subcontractor or supplier fails to furnish a release or receipt in full, the
-33-
Contractor may furnish a bond satisfactory to the Owner in an amount sufficient to cover
any Lien.
Contractor shall prepare and submit all required documents and provide, including but
not limited to:
a) Project Warranties/Guarantees;
b) Maintenance manuals and data;
c) Required Inspection Reports and Certifications;
d) As -built drawing on a set of blue -line prints (marked in red or otherwise
obvious) of all significant changes in the plans and/or utilities services; and
e) Stock materials for Owner use as directed in the construction documents.
If, on the basis of observation and review of the Work during construction and the final
inspection, the Owner is satisfied that the Work has been completed and the Contractor
has fulfilled all of its obligations under the Contract Documents the Owner will issue
written approval and the final estimate will be processed for payment. Otherwise, the
Owner will indicate in writing its reasons for refusing to issue payment of the final
estimate.
If, after Substantial Completion of the Work, final completion thereof is materially
delayed through no fault of the Contractor, the Owner shall make payment of the balance
due for that portion of the Work fully completed and accepted if the remaining balance
for Work not fully completed or corrected is less than the retainage, and, if Bonds have
been furnished in accordance with the Contract Documents, the written consent of the
surety to the payment of the balance due shall be submitted to the Owner. Such payment
shall be made under the terms and conditions governing final payment, except that it shall
not constitute a waiver of claims.
4.9. Guarantee
Upon Final Completion of Contractor's work, which includes acceptance of all punch list
items, the Contractor shall furnish to the Owner a written statement guaranteeing all
materials, equipment, workmanship, and operation for a period of one (1) year from the
date of final completion and acceptance by the Owner. This does not waive requirements
specified elsewhere for guarantees in excess of one (1) year, or warranties furnished by
manufacturers for period in excess of one (1) year.. Subcontractors shall guarantee their
work to the General Contractor and the Owner.
Contractor shall also furnish to the Owner all certificates of Guarantee and Warranty
provided by the manufactures of the equipment and materials.
Whenever, within one (1) year from the date of final completion, the Contractor is notified
by the owner of defects in work, equipment, or materials, the Contractor shall promptly
-34-
correct such defects without cost to Owner, either in materials or labor. Repairs,
corrections and/or replacement of work shall be handled in accordance with the provisions
of this paragraph and paragraph 2.24. Any such corrected or replaced defective work shall
be warranted by the Contractor for one year from, and after, such correction or
replacement of work.
4.10. Payments Withheld
The Owner may, because of subsequently discovered evidence, withhold or nullify
payment to such extent as may be deemed reasonably necessary by Owner because of:
(a) Defective Work not remedied;
(b) Claims filed or reasonable, confirmed evidence that the filing of a claim is
likely; that are uninsured or not secured by a bond.
(c) Failure of the Contractor to make payments properly to sub -contractors for
Material, Equipment or labor; or failure of Contractor to certify to Owner or
Owner's representative that all such payments are complete;
(d) Damage to or claimed by another Contractor; or
(e) Failure to carry out testing of material installation, if required.
When the above grounds are removed, or the Contractor provides a Surety bond
satisfactory to the Owner, which will protect the Owner in the amount withheld, payment
shall be made.
5. Project Requirements
5.1 Line and Grade
Lines and grades for construction are as directed in the Contract Documents. Any
questions, alterations, or adjustments must be directed through the Owner.
5.2 Working Day
Work on the Project site shall be done only during the Work Day, except for
emergencies or as otherwise approved by the Owner.
5.3 Character of Employees
The Contractor agrees to employ only orderly and competent employees, skillful in
the performance of the type of Work required under this Agreement, to do the Work;
and agrees that whenever the Owner shall inform the Contractor in writing that any
employee or employees are, in its opinion, incompetent or disorderly, such employee
or employees shall be discharged from the Work and shall not again be employed on
the Work without the written consent of the Owner.
5.4 Physical and Subsurface Conditions
If a condition encountered at the Worksite is (a) a subsurface or other physical condition
materially different from those indicated in the Contract Documents, or (b) an unusual and
unknown physical condition materially different from conditions ordinarily encountered and
-35-
generally recognized as inherent in Work provided for in the Contract Documents, Contractor
shall stop affected Work after the condition is first observed and give prompt written notice of
the condition to Owner. Owner shall investigate and specify the extent to which Owner agrees
that a concealed or unknown condition exists and directing how Contractor is to proceed.
Contractor shall not be required to perform any Work relating to the condition without the
written mutual agreement of the Parties. Any change in the GNU or Contract Time, and, if
appropriate, the Compensation for Preconstruction Services as a result of the condition,
including any dispute about its existence or nature, shall be determined as provided herein.
5.5 Reference Points
The Owner will establish such general reference points as will enable the Contractor
to proceed with the Work. The Contractor will be responsible for the layout of the
Work, will protect and preserve the established reference points, and will make no
changes or relocations without the prior written approval of the Owner. The
Contractor will report to the Owner whenever any reference point is lost or destroyed
or requires relocation because of necessary changes in grades or locations. The
Contractor will replace and accurately relocate all reference points so lost, destroyed,
or moved. All utilities shown on drawings are schematic only. The Contractor is
responsible for verification of existence and location of all utilities within the Project
site prior to construction.
6. Materials
6.1 Materials and Equipment
The Contractor shall furnish and pay for all labor, Materials, Equipment, tools,
transportation, construction equipment, fuel, , light, heat, telephone, , sanitary
facilities, and all other incidentals required to complete the Work in accordance with
the Contract Documents. All Materials and Equipment used in the construction of the
Work shall conform fully to the Contract Documents and be approved by the Owner.
Any Materials or Equipment placed before approval of the Owner shall be removed,
if directed by the Owner, and replaced with approved Materials or Equipment, at the
expense of the Contractor.
If required the Contractor will furnish satisfactory evidence as to the kind and quality
of Materials and Equipment to be used. If authorized by Owner, the Contractor may
use a substitute that is equal to any Material or Equipment specified. No substitute
shall be ordered or installed without the written approval of the Owner.
All Materials and Equipment shall be applied, installed, connected, erected, used,
cleaned, and conditioned in accordance with the instructions of the applicable
manufacturer, fabricator, or processors, except as otherwise specifically provided in
the Contract Documents. The Contractor shall provide start-up services for all major
equipment.
6.2 Right of the Owner to Modify Equipment and/or Methods
Construction Manager will agree that if the Owner, in the exercise of its reasonable
discretion and after written notice, determines that the Contractor is behind schedule
for reasons which do not warrant a time extension hereunder, Construction manager
-36-
will, at its expense implement a recovery plan until such time that the work is back
on schedule. At the Owners request the Contractor shall have the opportunity to
initiate a Schedule Recovery Plan to get the project back on schedule. Such authority
of the Owner, however, is for the sole benefit of the Owner in order to secure
completion in conformity with this Agreement. It shall remain the responsibility of
the Contractor to take adequate precautions in its operation for the safety of persons
and property.
6.3 Owner Furnished Materials
The Contractor shall furnish all Materials required to complete the Work, except those
specified herein (if any) to be furnished by the Owner. Owner -furnished Materials
shall be made available to the Contractor at the location specified in the Contract
Documents. All costs of handling, transportation from the specified location to the
site of Work, storage, and installing Owner furnished Materials shall be included in
the unit price bid for the contract item in which such Owner -furnished Material is
used.
After any Owner furnished Material has been delivered to the location specified, the
Contractor shall be responsible for any demurrage, damage, loss, or other deficiencies
that may occur during the Contractor's handling, storage, or use of such Owner -
furnished Material. The Owner will deduct from any monies due, or to become due,
to the Contractor any cost incurred by the Owner in making good such loss due to the
Contractor's handling, storage, or use of Owner -furnished Materials.
6.4 Material Storage
Materials shall be so stored as to assure the preservation of their quality and fitness for
the Work. When considered necessary by the Owner, Materials shall be placed on
wooden platforms or other hard, clean, and dry surfaces and not in contact with the
ground, and shall be placed under cover. Stored materials, even though approved
before storage, may again be inspected prior to their use in the Work. Stored materials
shall be located to facilitate their prompt inspection. The Contractor shall arrange for
the storage of all materials with the Owner or its Resident Project Representative.
Materials to be stored on the site of the Work shall not create an obstruction to the
public, nor shall they interfere with the free and unobstructed movement of vehicular
traffic associated with the site. The storage of the Materials and the location of the
Contractor's plant and parked equipment or vehicles shall be as directed by the Owner
or its representative. Private property shall not be used for storage purposes without
written permission of the Owner. The Contractor shall make all arrangements and bear
all expenses for the storage of Materials on private property.
All storage sites shall be restored to their original condition by the Contractor at its
entire expense, except as otherwise agreed to by the Owner.
6.5 Sources of Supply and Quality of Materials
The source of supply of each of the Materials shall be approved by the Owner before
delivery is started and may be sampled and tested to determine compliance with the
specifications before delivery is started. If it is found that sources of supply previously
-37-
approved do not produce uniform and satisfactory products, or if the product from any
source proves unacceptable at any time, the Contractor shall furnish Materials from
other approved sources. Only Materials conforming to the requirements of the Contract
Documents and approved by the Owner shall be used in the Work. No material which
after approval has in any way become unfit for use shall be incorporated in the Work.
Throughout the specifications where reference is made to ASTM (American Society
for Testing and Materials), AASHTO (American Association of State Highway and
Transportation Officials), or bulletins of the Texas Department of Transportation for
the quality of Materials or sampling and testing, the latest standard, tentative standard,
or bulletin issued prior to the date of the proposal shall govern.
6.6 Samples and Tests
All Materials shall be inspected, tested, and approved by the Owner, and any Work in
which Materials are used without prior test and approval without first being excepted
from testing and approval by Owner, may be ordered removed and replaced at the
Contractor's expense. The Contractor shall furnish a complete written statement of the
origin, composition, and manufacture of any or all Materials that are to be used in the
Work.
6.7 Defective Materials
All Materials not conforming to the requirements of the Contract Documents will be
rejected and shall be removed immediately from the site of the Work. Rejected
Materials in which the defects have been subsequently corrected, shall have the status
of new Material. Upon failure on the part of the Contractor to comply with the
provisions of this item, the Owner will have authority to remove and replace defective
Material and to deduct the cost of removal and replacement from any payment due,
or to become due, to the Contractor.
7 Project Meetings
7.1 Pre -construction Meeting
Prior to the commencement of Work at the site, a pre -construction conference will be
held with the Owner and Architect at a mutually agreed upon time and location. The
conference shall be attended by:
• Contractor and its superintendent;
• Principal Subcontractors;
• Representatives of principal suppliers and manufacturers
as appropriate;
• Representatives of Owner; and
• Others as requested by the Contractor or the Owner
Unless previously submitted to the Owner, the Contractor shall bring to the
conference each of the following:
A list of all subcontractors, including addresses and contact information;
-38-
• Completed Debarment and Suspension forms for all contractors and
subcontractors;
• Completed Certification for a Drug -Free Workplace for all contractors and
subcontractors (Form Number: HUD-50070);
• Completed Conflict of Interest Forms for all contractors;
• Approved certificates of insurance for all subcontractors;
• Material Sources;
• Materials Test Results and Certification;
• List of Equipment to be utilized;
• Description of Procedures and Work Crews; and
• Any other documentation or information requested by the Owner prior to the
conference.
The agenda will include:
• Contractor's tentative schedules;
• Critical Work sequencing;
• Transmittal, review, and distribution of Contactor's submittals;
• Field decisions and Change Orders;
• Use of premises, office and storage areas, security, housekeeping, and
Owner's needs;
• Major equipment deliveries and priorities;
• Maintaining record documents;
• Processing applications for payment, and
• Contractor's assignments for safety and first aid.
The sequence of operations to be followed shall be prepared by the Contractor for
approval by the Owner. The sequence shall meet the job requirements for Completion
Time and shall conform to the requirements set forth in the Contract Documents.
7.2 Progress Meetings
The Contractor shall schedule and hold regular progress meetings at least monthly
and at other times as requested by the Architect or Owner, or required by progress of
the Work. The Contractor, the Owner, and the architect on the site shall be presented
at each meeting. The Contractor may, at its discretion, request attendance by
representatives of Contractor's subcontractors, suppliers, manufacturers, and other
Subcontractors.
The Contractor shall preside at the meetings, provide for keeping of the minutes, and
provide the Owner with a copy of the minutes. The purpose of the meetings will be
to prepare statements of payment, review the progress of the Work, maintain
coordination of efforts, discuss changes in procedures and personnel, and resolve
problems.
8 Construction Administration
-39-
8.1 Notices to Owners and Authorities
The Contractor shall notify owners of adjacent property and utilities in writing and
sufficiently in advance when prosecution of the Work may affect them. When it is
necessary to temporarily deny access by owners or tenants to their property, or when
any utility service connection must be interrupted, the Contractor shall give notices in
writing and sufficiently in advance to enable the affected persons to provide for their
needs. Notices will conform to any applicable local ordinance, shall be provided in
writing, and will include appropriate information concerning the interruption and
instructions on how to limit their inconvenience.
8.2 Notification of Street Closing
Where the Contractor has cause to close a street or thoroughfare for purposes of
construction, the Owner shall be provided reasonable advance notice, in writing, prior
to such actions for approval and coordination with appropriate agencies.
8.3 Detours and Barricading
The Contractor shall be responsible for providing barricading for all work areas
during the construction of this Project. Unless provided by Owner in the Technical
Specifications contained within the contract documents, the Contractor shall prepare
and submit a barricading plan to the Owner for Owner's approval. Owner's approval
shall be for routing and for length of time of barricading only. Plans shall be prepared
by a Professional Engineer, Registered in the State of Texas, and show all necessary
barricades, signs, etc., required to provide a safe work site. Plans shall be based on
the recommendations in the Manual of Uniform Traffic Control Devices for control
of traffic in a construction area. It shall be the total responsibility of Contractor to
maintain the barricades, lights, signs, and all other items involved in the detouring of
traffic.
Contractor shall provide appropriate barricades for use at night, and shall maintain all
lighted barricades for the duration of the project. Contractor shall designate an
employee who will be responsible for the maintenance of the barricades and lighting
system on a twenty four (24) hour basis, and shall provide a phone number where the
responsible party can be reached on a twenty four (24) hour basis.
8.4 Convenience to Traffic
When the Agreement requires the maintenance of vehicular traffic on an existing road,
street, or highway during the Contractor's performance of the Work, the Contractor
shall keep such road, street, or highway open to all traffic as provided herein and shall
provide such maintenance as may be required to accommodate traffic. The Contractor
shall furnish, erect, and maintain barricades, warning signs, flag persons, and other
traffic control devices in reasonable conformity with the manual of Uniform Traffic
Control Devices for Streets and Highways (published by the United States Government
Printing Office), unless otherwise specified herein. The Contractor shall also construct
and maintain in a safe condition any temporary connections necessary for ingress to
and egress from abutting property or intersecting roads, streets, or highway.
The Contractor shall make its own estimate of all labor, Materials, Equipment, and
incidentals necessary for providing the maintenance of vehicular traffic as specified in
-40-
this subsection. The cost of maintaining vehicular traffic specified in this subsection
shall not be measured or paid for directly, but shall be included in the various contract
items.
One-half of the traveled portions of the road must be open to traffic at all times unless
otherwise approved by the Owner. Work that will require less than one day to
completeshall not be performed on major or collector streets between 7:00 a.m. to 9:00
a.m., 4:00 p.m. to 6:00 p.m., or other peak congestion periods as determined by the
Owner.
8.5 Unfavorable Construction Conditions
During unfavorable weather, wet ground, or other unsuitable construction conditions,
the Contractor shall confine its operations to Work which will not be affected adversely
by such conditions. No portion of the Work shall be constructed under conditions
which would affect adversely the quality or efficiency thereof unless special means or
precautions are taken by the Contractor to perform the work in a proper and satisfactory
manner.
8.6 Cleaning Up
The Contractor shall keep the premises free at all times from accumulations of waste
materials, rubbish, and other debris resulting from the Work. The Contractor will
restore to their original or better condition those portions of the site not designated for
alteration by the Contract Documents.
The Contractor shall provide adequate trash receptacles about the work site, and shall
promptly empty the containers when filled. Construction materials, such as concrete
forms and scaffolding shall be neatly stacked by the Contractor when not in use. The
Contractor shall promptly remove splattered concrete, asphalt, oil, paint, corrosive
liquids, and cleaning solutions from surfaces to prevent marring or other damage.
Volatile wastes shall be properly stored in approved containers and removed daily.
Wastes shall not be buried or burned on the site or disposed of into storm drains,
sanitary sewers, streams, or waterways. All wastes shall be removed from the site and
disposed of in a manner complying with local, state, and federal laws. Adequate
cleanup will be condition for recommendation of progress payment applications.
Upon completion of the Work and before acceptance and final payment will be made,
the Contractor shall remove from and about the site all machinery, equipment, tools,
surplus and discarded and waste materials, debris, rubbish, temporary structures, and
stumps or portions of trees. The Contractor shall cut all brush and woods within the
limits indicated and shall leave the site in a neat and presentable condition, ready for
occupancy by the Owner.
8.7 Site Administration
The Contractor shall be responsible for all areas of the work site, and all Subcontractors
in the performance of the Work. The Contractor will exert full control over the actions
of all employees and other persons with respect to the use and reservation of property
-41-
and existing facilities, except such controls as may be specifically reserved to Owner
or others. The Contractor has the right to exclude from the site all persons who have
no purpose related to the Work or its inspection, and may require all persons on the
site to observe the same regulations as Contractor requires of its employees.
8.8 Load Restrictions
The Contractor shall comply with all legal load restrictions in the hauling of materials
on public roads beyond the limits of the Work. A special permit will not relieve the
Contractor of liability for damage that may result from the moving of material or
equipment. The operation of equipment of such weight or so loaded as to cause damage
to structures or to any other type of construction will not be permitted. Hauling of
materials over the base course or surface course under construction shall be limited as
directed. No loads will be permitted on a concrete pavement, base, or structure before
the expiration of the initial curing period. The Contractor shall be responsible for all
damage done by its hauling equipment and shall correct such damage at its own
expense.
8.9 Applicable Codes
References in the Contract Documents to local codes mean codes used, referenced,
required, or adopted by the City of Lubbock, Texas, the State of Texas or the federal
government.
8.10 Other Responsibilities
Contractor shall be responsible for securing all required construction and other related
permits, local, state or federal.
9. Employment Requirements
9.1 General
The award of this contract shall be based in part upon payment by the Contractor and
its Subcontractors of wage rates not less than the general prevailing rate of per diem
wages for work of a similar character in the locality in which the Work is performed,
and not less than the general prevailing rate of per diem wages for legal holiday and
overtime work.
The Contractor shall comply with all requirements of the prevailing wage law of the
State of Texas, Texas Government Code, Chapter 2258, including the latest
amendments thereto.
The prevailing wage law does not prohibit payment of more than the general
prevailing rate of wages.
9.2 Records
The Contractor and each Subcontractor shall keep an accurate record showing the
names and occupations of all laborers, workers, and mechanics employed, together
with the actual wages paid to each worker. At all reasonable hours, such records shall
be open to inspection by the representatives of Owner.
-42-
9.3 Penalty
If the Contractor or any Subcontractor fails to comply with the prevailing wage law,
it shall forfeit to Owner sixty dollars ($60.00) per day for each laborer, workman, or
mechanic who is paid less than the specified rate, pursuant to
§2258.023 of the Texas Government Code.
9.4 Hours of Labor
The Contractor shall comply with all requirements of the hours of work on public
works defined by Texas Government Code §650.001, including the latest
amendments thereto, as an eight (8) hour work day. Violation of this provision is
punishable by fine and imprisonment pursuant to §650.003 of the Texas Government
Code.
9.5 Veterans Preference
Pursuant to Texas Government Code, §657.004, the Contractor shall give preference
in employment to honorably discharged veterans who were engaged in the services
of the United States in time of war or conflict and who are and have been citizens of
Texas for not less than five (5) years.
9.6 Prevailing Wage and Hour Decision
Chapter 2258 of the Texas Government Code requires contractors and subcontractors
performing work on public works contracts to pay wages at a rate consistent with the
rate prevailing in the area. Under federal law, the United State Department of Labor
is required to maintain a prevailing Wage and Hour decision for each geographical
area.
Compliance with the published decision meets the requirements of the Texas
Government Code.
1. If the Wage Decision lists fringe benefits, you must either provide the
benefits or pay the hourly equivalent in cash in addition to the predetermined
wage.
2. Labor classifications not appearing on the Wage Decision will be deferred to
the
U.S. Department of Labor (DOL) for approval.
9.7 Prevailing Wage and Benefit Attachment
The Prevailing Wage and Benefit Attachment to these Owner Construction General
Conditions is the Prevailing Wage and Hour Decision applicable to construction
contract. The Contractor shall be solely responsible for compliance with the
applicable portions of Davis -Bacon and Related Acts, and any Prevailing Wage
and Hour Decision that is applicable or may become applicable at the timework is
performed.
10.INDEMNIFICATION OF OWNER
-43-
10.1 CONTRACTOR AGREEMENT TO INDEMNIFY AND
HOLD HARMLESS OWNER
By the execution of a contract pursuant to which these "Owner's
Construction General Conditions" apply, Contractor covenants
and agrees to FULLY INDEMNIFY DEFEND AND
HOLD
HARMLESS, OWNER and the elected and appointed officials,
employees, officers, directors, volunteers, and representatives of
Owner, individually or collectively, from and against any and all
costs, claims, liens, damages, losses, judgments, expenses, fees,
fines, penalties, proceedings, actions, demands, causes of action,
liability and suits of any kind and nature, including but not limited
to, personal or bodily injury, death or property damage, made
upon Owner directly or indirectly arising out of, resulting from or
related to Contractor's activities under this Contract, including
any acts or omissions of Contractor, or any agent, officer,
director, representative, employee, consultant or subcontractor of
Contractor, and their respective officers, agents, employees,
directors and representativesincluding Owner, while in the
exercise of performance of the rights or duties under this
Contract, or sustained in or upon the Project premises, or as a
result of anything claimed to be done or admitted to be done by
the Contractor hereunder. Nothing herein shall require
Contractor to indemnify, defend or hold harmless any
indemnified party for the indemnified party's negligence or
willful misconduct.CONTRACTOR AGREEMENT TO
INDEMNIFY OWNER FROM INFRINGEMENT OF
INTANGIBLE PROPERTY RIGHTS
Contractor shall protect and indemnify the Owner from and
against all claims, damages, judgments and losses arising from
infringement or alleged infringement of any United States patent,
or copyright that arise out of any of the work performed by the
Contractor or the use by Contractor, or by Owner at the direction
of Contractor, of any article or material unless such alleged
infringement was specified in the contract documents. Upon
becoming aware of a suit or threat of suit for patent or copyright
infringement, Owner shall promptly notify Contractor and
Contractor shall be given full opportunity to negotiate a
-44-
settlement. Contractor does not warrant against infringement by
reason of Owner's or Project Architect's design of articles or their
use in combination with other materials or in the operation of any
process. In the event of litigation, Owner agrees to cooperate
reasonably with Contractor and parties shall be entitled, in
connection with any such litigation, to be represented by counsel
at their own expense.
10.2 No Rights Created in Third Parties
The provisions of this indemnification 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.
10.3 Contractor Notice of Claims to Owner
The Contractor shall promptly advise the Owner in writing of any claim or demand
against the Owner or against the Contractor which involves the Owner, and known to
the Contractor, and related to or arising out of the Contractor's activities under this
Contract.
10.4 Survival of Indemnity and Hold Harmless Provisions
These indemnity and hold harmless provisions of this Part 10 "Indemnification
of the Owner", shall survive the expiration or termination this Agreement
regardless of the reason for termination.
11. Bonds Applicable to "Public Work Contracts"
"Public work contract" means a contract for constructing, altering, or repairing a public
building or carrying out or completing any public work pursuant to which the Public
Work Performance and Payment Bond provisions of Chapter 2253 of the Texas
Government Code apply.
11.1 Construction Bonds
The Contractor is required to tender to the Owner, prior to commencing the Work,
performance and payment bonds in the amount of the contract, as required by Texas
Government Code, Chapter 2253 "Public Work Performance and Payment Bonds". On
Construction Manager -at -Risk and Design -Build Projects the Owner shall require a
security bond, as described in Subsection 11.1.2 below.
11.1.1 Bond Requirements
Each bond shall be executed by a corporate surety or sureties authorized to do
-45-
business in the State of Texas and acceptable to the Owner, on the Owner's form,
and in compliance with the relevant provisions of the Texas Insurance Code. If
any bond is for more than ten (10) percent of the surety's capital and surplus, the
Owner may require certification that the company has reinsured the excess portion
with one or more reinsurers authorized to do business in the State. A reinsurer may
not reinsure for more than ten (10) percent of its capital and surplus. If a surety
upon a bond loses its authority to do business in the State of Texas, the Contractor
shall, within thirty (30) days after such loss, furnish a replacement bond at no
added cost to the Owner.
11.1.1 (a) A Performance bond is required if the Contract Sum is in excess
of $100,000. The performance bond is solely for the protection of
the Owner. The performance bond is to be for the Contract Sum to
guarantee the faithful performance of the Work in accordance with
the Contract Documents. The form of the bond shall be approved
by the Office of the Attorney General of Texas. The performance
bond shall be effective through Contractor's warranty period.
11.1.1 (b) A Payment bond is required if the Contract price is in excess of
$50,000. The payment bond is to be for the Contract Sum and is
payable to the Owner solely for the protection and use of payment
bond beneficiaries. The form of the bond shall be approved by the
Office of the Attorney General of Texas.
11.1.2 Security Bond
The security bond provides protection to the Owner if the Contractor presents an
acceptable Guaranteed Maximum Price ("GUT") to the Owner but is unable to
deliver the required payment and performance bonds within the time period stated
below.
11.13 When Bonds Are Due
11.1.3 (a) Security bonds are due before execution of a
Construction Manager -at -Risk or Design -Build Contract.
11.1.3 (b) Payment and performance bonds are due before execution of a
contract on competitively bid or competitively sealed proposal projects or
before execution of a Guaranteed Maximum Price (GMP) proposal on
Construction Manager -at -Risk projects or Design -Build projects.
11.1.4 Power of Attorney
Each bond shall be accompanied by a valid power of attorney (issued by the surety
company and attached, signed and sealed with the corporate embossed seal, to the
bond) authorizing the attorney -in -fact who signs the bond to commit the company
to the terms of the bond, and stating any limit in the amount for which the attorney
Em
can issue a single bond.
11.1.5 Bond Indemnification
The process of requiring and accepting bonds and making claims thereunder shall
be conducted in compliance with Tex. Gov't Code, Chapter 2253. IF FOR ANY
REASON A STATUTORY PAYMENT OR PERFORMANCE BOND IS NOT
HONORED BY THE SURETY, THE CONTRACTOR SHALL FULLY
INDEMNIFY AND HOLD THE OWNER HARMLESS OF AND FROM ANY
COSTS, LOSSES, OBLIGATIONS OR LIABILITIES IT INCURS AS A
RESULT THEREOF.
11.1.6 Furnishing Bond Information
Owner shall furnish certified copies of the payment bond and the related Contract
to any qualified person seeking copies who complies with Tex. Gov't Code §
2253.026.
11.2 Claims on Payment Bonds
Claims on payment bonds must be sent directly to the Contractor and its surety in
accordance with Texas Government Code § 2253.041. All payment bond claimants are
cautioned that no lien exists on the funds unpaid to the Contractor on such Contract, and
that reliance on notices sent to the Owner may result in loss of their rights against the
Contractor and/or its surety. The Owner is not responsible in any manner to a claimant
for collection of unpaid bills, and accepts no such responsibility because of any
representation by any agent or employee.
11.3 Payment Claims when Payment Bond not Required
The rights of Subcontractors regarding payment are governed by Texas Property Code,
Subchapter J, § § 53.231— 53.239, when the value of the Contract between the Owner and
the Contractor is less than $25,000.00. These provisions set out the requirements for filing
a valid lien on funds unpaid to the Contractor as of the time of filing the claim, actions
necessary to release the lien and satisfaction of such claim.
11.4 Sureties
A surety shall be listed on the US Department of the Treasury's Listing of Approved
Sureties maintained by the Bureau of Financial Management Service (FMS),
www.fins.treas.gov/c570, stating companies holding Certificates of Authority as
acceptable sureties on federal bonds and acceptable reinsuring companies (FMS Circular
570).
-47-