HomeMy WebLinkAboutResolution - 2006-R0104 - Agreement-Crouch & Associates Ltd, & Community State Bank- Cause #2004-528,092 - 02/24/2006Resolution No. 2006-80104
February 24, 2006
Item No. 6.18
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to
execute for and on behalf of the City of Lubbock a Compromise and Settlement Agreement in
City of Lubbock v. Crouch & Associates, Ltd. and Community State Bank; Cause No. 2004-
528,042, pending in the 72"d District Court of Lubbock County, Texas. Said Agreement is
attached hereto and incorporated in this Resolution as if fully set forth herein and shall be
included in the minutes of this Council.
Passed by the City Council this 24th day of
ATTEST:
,Ip , 0 , , , , - , �� 'f--
Reb cca Garza, City Secretary
APPROVED AS TO CONTENT:
Quincy W , Assistant City Manager
APPROVED AS FORM:
M11cWe'll ;atterwFi#t'e, Assistanf City Attorney
as/ccdocs/Set.Agttnt.Crouch&Associates.
February 17, 2006
2006.
MARC MC60UGAL, MAYOR
NO. 2004-528,092
CITY OF LUBBOCK, TEXAS § IN THE 72na DISTRICT COURT
Plaintiff §
VS. § OF
CROUCH & ASSOCIATES, LTD. §
and COMMUNITY STATE BANK §
Defendants § LUBBOCK COUNTY, TEXAS
COMPROMISE SETTLEMENT AGREEMENT
AND RELEASE OF ALL CLAIMS
This Compromise Settlement Agreement and Release of All Claims
("Agreement") is entered into by, between, and among the City of Lubbock (the
"Cemetery") and Community State Bank, (the "Bank"). All claims and actions,
including cross-claims, pleaded and that could be pleaded against all other Defendants in
the Petition are excluded from this Agreement and Order, and expressly reserved by the
City of Lubbock and Community State Bank
RECITALS
WHEREAS, Cemetery is in the business of owning and operating a cemetery in
Lubbock County, Texas;
WHEREAS, a certain mausoleum was to be constructed pursuant to a Cemetery
Sales and Development Agreement dated December 3, 2001 (the "Crouch Cemetery
Agreement"), between Cemetery and Crouch & Associates, Inc., n/k/a Crouch &
Associates, Ltd. ("Crouch");
WHEREAS, in furtherance of the Crouch Cemetery Agreement, Crouch,
purportedly as an agent of the Cemetery, entered into a construction contract (the "Granit
Bronz Contract") with Granit Bronz, a division of Cold Spring Granite Company
Settlement Agreement,
City of Lubbock—Community State Bank Page 1 of 21
("Granit Bronz"), for the construction of an 1176 crypt mausoleum building. Crouch
sold on a pre -need basis approximately 138 mausoleum crypt spaces and 8 niches, said
numbers to be confirmed, to individual purchasers ("Consumers"); however, construction
of the 1176 crypt mausoleum building has not yet begun;
WHEREAS, Crouch defaulted on its obligations under the Granit Bronz Contract,
and Crouch also defaulted on its obligations under the Crouch Cemetery Agreement;
WHEREAS, under the terms of the Crouch Cemetery Agreement, Crouch,
purportedly acting as the exclusive sales agent for Cemetery, sold crypts and niches to
Consumers pursuant to retail installment sales contracts (the "Crouch Installment
Contracts");
WHEREAS, Crouch obtained loans from Bank, secured by a security interest in
Crouch's interest in the Crouch Installment Contracts (the "Pledged Contracts"). In
addition, Crouch sold and assigned some of the Crouch Installment Contracts to Bank
(the "Purchased Contracts"). Crouch defaulted on its obligations to Bank, and the unpaid
balance of the loans (the "Indebtedness") is now due and payable in full;
WHEREAS, City filed suit against Crouch on October 6, 2004, in Cause No.
2004-528,092 in the 72nd District Court of Lubbock County, Texas (the "Lawsuit"). On
November 24, 2004, the City added the Bank as an additional defendant in the Lawsuit;
WHEREAS, Cemetery and Bank recognize the need for the construction of a
mausoleum to meet the obligations to Consumers, and to preserve and protect the public
health and safety of the citizens of Lubbock;
Settlement Agreement,
City of Lubbock—Community State Sank Page 2 of 21
WHEREAS, Consumers by way of Crouch Installment Contracts purchased a
greater number crypts and niches than there is available space in the temporary
mausoleum erected pursuant to the Crouch Cemetery Agreement, and the remains of
several individuals having purchased crypt or niche space in the originally contemplated
mausoleum are, instead, presently interred in the temporary mausoleum;
WHEREAS, the construction of a single 588 crypt mausoleum ("Phase I"),
pursuant to an executed change order to the Granit Bronz Contract, will meet Consumer
obligations, and will preserve and protect the health and safety of residents of Lubbock;
WHEREAS, Cemetery and Bank wish to enter into this Agreement as settlement
of the Lawsuit between Cemetery and Bank, as well as to provide for the construction of
Phase I and the allocation of unsold crypts and niches in Phase I;
WHEREAS, the City and Bank deny any liability to one another for any claim or
cause of action associated with the above -referenced matter, but are together willing to
settle all claims to avoid the inconvenience, distractions, uncertainties, and expenses
attendant to litigation and trial, in exchange for the consideration and releases set forth
below.
I. CONSTRUCTION OF PHASE I
1.1 Contract with Mausoleum Contractor. Cemetery and Bank agree that
Cemetery shall negotiate in good faith with Granit Bronz, a change order to the Granit
Bronz Contract to provide for the construction of Phase I on such terms as Cemetery and
Bank may agree; provided, however, that the total contract price, unless mutually agreed
Settlement Agreement,
City of Lubbock — Community State Bank Page 3 of 21
by Cemetery and Bank, shall not exceed $510,000 for Phase 1, and further that the Granit
Bronz Contract, as modified, shall incorporate all material terms and conditions of a
certain public works contract, an exemplar of which is attached hereto and incorporated
herein by reference as set forth in Exhibit "A." Construction shall begin on Phase I as
soon thereafter as reasonably possible, and shall be determined to be substantially and
finally completed at the sole discretion of the Cemetery. Bank agrees to be bound by any
decisions made by Cemetery, as the owner's representative, during the construction
process of Phase I, provided that there is no decrease in the quality of Phase 1. Nothing in
this Agreement shall prevent the Cemetery from building or contracting to build an
additional mausoleum or additional crypts; however; such additional work shall be solely
at the Cemetery's expense and any additional crypts shall remain the sole property of the
Cemetery and shall not be part of this Agreement.
1.2 Site Selection; Fees; Change Orders. Cemetery shall select, in its
discretion, the land on which Phase I is to be constructed and shall allow Granit Bronz to
have access to the site of Phase I for the purpose of constructing Phase I and any
incidentally related activities. Cemetery shall supervise the placement and construction
of Phase I and shall inspect the progress of the construction. Bank shall pay to Cemetery
one-half (112.) of any site fee, permitting fee, or other fee required by law in connection
with this section, other than the law, ordinances or regulations of the City of Lubbock.
All change orders to the Granit Bronz Contract shall be made at the sole discretion of
Cemetery. If Cemetery shall have obtained, in advance, the written consent of Bank to
make said change order to the Granit Bronz Contract, all costs associated with the change
order shall be paid one-half (112) each by Cemetery and Bank.
Settlement Agreement,
City of Lubbock — Community State Bank Page 4 of 21
1.3 Ownership of Phase 1. Except as expressly set forth in this Agreement,
at all times during construction and upon the completion of construction of Phase I,
Cemetery shall be the sole owner of Phase 1, including, without limitation, the Phase I
building and all rights of sepulture in Phase 1. Subject to the provisions hereof, the
parties hereto agree that the completed Phase I shall be deemed a permanent fixture to the
real property thereupon placed, and, along with said real property, shall be owned in fee
simple by the Cemetery.
1.4 Maintenance of Mausoleums. Cemetery shall maintain Phase I in good
condition as so determined by Cemetery, including all crypts and niches in Phase I, and
keep them insured against casualty loss in the same manner as other Cemetery property
may be so insured.
1.5 Performance Bond. Cemetery and Bank agree that the Granit Bronz
Contract shall require that within ten (10) days of the date on which the Granit Bronz
Contract is executed, Granit Bronz shall provide to Cemetery, in a form and through a
surety acceptable to the Cemetery and further authorized by the laws of the State of
Texas to act as surety on bonds for principals for the limits and coverages so required, a
performance bond in an amount equal to the contract price for the construction of Phase I.
Cemetery shall be named as beneficiary on said bond, and the bond shall be conditioned
upon the faithful performance by Granit Bronz of the construction of Phase I in
accordance with the plans and specifications described on Exhibit "B" attached hereto
and incorporated herein by reference. The bond shall remain in effect at least until one
year after the date when final payment becomes due. The bond, if signed by an agent,
must be accompanied by a certified copy of such agent's authority to act. In the event the
Settlement Agreement,
City of Lubbock— Community State Bank Page 5 of 21
Granit Bronz Contract shall not require Granit Bronz to provide said performance bond,
Cemetery and Bank agree to purchase a performance bond meeting the minimum
coverages set forth in this Section 1.5, the cost for which shall be divided equally
between the Cemetery and Bank.
1.6 Initial and Subsequent Payments. Upon Cemetery's securing the Granit
Bronz Contract and approval thereof by the Lubbock City Council, Cemetery shall notify
Bank of said approval, and Bank shall pay to Cemetery, for the account of the Granit
Bronz Contract, within two (2) business days of said notification, an amount equal to
one-half of the first payment due under the Granit Bronz Contract in cash, wire transfer,
or other readily available funds ("Bank's Initial Payment"). Cemetery shall remit the
initial payment due Granit Bronz under the Granit Bronz Contract, when said payment is
due. Thereafter, Cemetery shall notify Bank at least five (5) business days before each
subsequent payment is due under the Granit Bronz Contract. Within two (2) business
days of said notification, Bank shall pay to Cemetery, for the account of the Granit Bronz
Contract, an amount equal to one-half of such payment ("Bank's Subsequent Payments")
in cash or by wire transfer or by other readily available funds. Bank hereby appoints
Cemetery as its agent to make said payments under the Granit Bronz Contract. Bank
hereby releases Cemetery and holds Cemetery harmless from any and all loss or liability
resulting from or related to the exercise of Cemetery's powers hereunder, so long as such
losses or liabilities are not caused by Cemetery's gross negligence or willful misconduct.
Bank and Cemetery agree that Bank shall not be entitled to any portion of amounts
previously paid or credited by Crouch to Granit Bronz on behalf of the Cemetery, and
hereby disclaim any interest therein. If Bank shall not timely pay to Cemetery, in a form
Settlement Agreement,
City of Lubbock — Community State Bank Page 6 of 21
acceptable to the Cemetery, the full amount of the Bank's Initial Payment or any of
Bank's Subsequent Payments, Bank shall be in default hereunder, and Cemetery may
declare, in addition to all other remedies available to it by law, contract, equity, or
otherwise, this Agreement cancelled.
II. SALE OF CRYPTS AND NICHES
2.1 Allocation of Crypts and Niches. Allocation between the Cemetery and
Bank of all Unsold Inventory (as defined below) and crypts and niches covered by
Pledged Contracts and Purchased Contracts shall be governed by this section 2.1.
2.1.1 Allocation of Rights in and Title to Unsold Crypts and Niches.
"Unsold Inventory" means (a) all crypts and niches in Phase I other than (b) crypts and
niches covered by (i) Purchased Contracts, and (ii) Pledged Contracts, except Pledged
Contracts in default as of the date of this Agreement. Cemetery and Bank have identified
all Unsold Inventory. Upon the execution of this Agreement, Cemetery shall execute and
deliver to Bank a certificate for the exclusive right of sepulture in a number of crypts and
niches equal to one-half (112) the total Unsold Inventory (the `Bank's Allotment"),
subject to any rights or interests, if any, in the property held by Consumers pursuant to a
Crouch Installment Contract. Cemetery shall retain the exclusive right of sepulture in the
remaining one-half (112) of the Unsold Inventory (the "Cemetery's Allotment"). The
parties intend that the allocations of Unsold Inventory be equal in both number and value.
The parties hereto agree that the listing of crypt and niches as set forth in Exhibit "C"
fully and accurately represents the Unsold Inventory, and further agree to the crypt and
niche allocation as set forth in Exhibit "D" attached hereto. Until such time that
construction for Phase I is completed, Cemetery shall retain fee simple ownership in all
Settlement Agreement,
City of Lubbock — Community State Sank Page 7 of 21
crypt spaces and niches in Phase I, subject to any exclusive rights of sepulture conveyed
to Bank.
2.1.2 Transfer of Rights Concerning Other Crypts and Niches. Upon the
execution of this Agreement, Cemetery shall execute and deliver to Bank a certificate for
the exclusive right of sepulture in any crypt space or niche covered by the Pledged
Contracts and the Purchased Contracts, but not also constituting a part of the Unsold
Inventory. Such transfer shall be subject to the interest, if any, held in the property by
Consumers pursuant to a Crouch Installment Contract.
2.1.3 Transfer of Title to Crypts and Niches. Upon the completion of
construction for Phase I, Cemetery shall by Special Warranty Deed convey to Bank in fee
simple: 1) all crypt spaces and niches covered by the Pledged Contracts and the
Purchased Contracts, but not also constituting part of the Unsold Inventory; and 2) all
crypt spaces and niches in the Bank's Allotment.
2.2 Management. Cemetery shall be responsible for the day-to-day
management of Phase I for compliance with the rules and regulations of governmental
bodies governing cemeteries and mausoleums and the operations of cemeteries and
mausoleums. In satisfaction of such duties, Cemetery shall have authority to take all
reasonable actions which may be necessary or appropriate.
2.3 Omitted.
2.3.1 Exclusive Right to Sell. In order to facilitate the orderly sale of crypts
and niches and to accommodate the needs of the public, Bank hereby appoints Cemetery
as its exclusive agent, with the sole and exclusive right to sell crypts and niches, and the
exclusive rights of sepulture therein, from the Bank's Allotment. Cemetery shall be
Settlement Agreement,
City of Lubbock — Community State Bank Page 8 of 21
solely responsible for all costs and expenses of sale, if any, and shall determine, in its
sole discretion, the nature and extent of advertising and/or marketing of property from
Phase I. To the extent permitted by law, Cemetery agrees to indemnify Bank and
hold it harmless from and against all claims and liability of every type arising from
Cemetery's sale of crypts and niches. In the event Cemetery engages non -city
employees to perform sales services, Cemetery agrees that such non -city employees shall
be covered by a sufficient fidelity bond. Upon notice from Cemetery to Bank that
Cemetery has executed a contract for sale of a crypt or niche, or right of sepulture therein,
from the Bank's Allotment and receipt by Bank of payment of the amount set forth
below, Bank shall promptly convey to Cemetery in fee simple that crypt and/or niche
sold pursuant to said contract for sale, as well as all rights of sepulture therein, and
Cemetery agrees to convey said crypt or niche, and right of sepulture therein, to the
consumer pursuant to the executed contract for sale. Without Bank's prior written
consent, Cemetery shall not sell any crypts or niches from Bank's Allotment for less than
the prices reflected on Exhibit "E." Cemetery shall remit to Bank, in a form acceptable to
the Bank, an amount equal to 58.5% of the sale price, excluding any sales taxes, the price
for any opening and closing fees, and memorialization fees of the first crypt sold and for
every other crypt sold thereafter by Cemetery, and 58.5% of the sale price, excluding any
sales taxes, the price for any opening and closing fees, and memorialization fees of the
first niche space sold and for every other niche space sold thereafter by Cemetery. Bank
agrees that Cemetery shall be entitled to the remainder of any and all amounts received in
excess of said remittance.
Settlement Agreement,
City of Lubbock— Community State Bank Page 9 of 21
2.3.2 Exchange of Crypts and Niches. Cemetery and Bank understand that,
notwithstanding Cemetery's obligation to remit the amounts calculated pursuant to
Section 2.3.1 above, crypts and niches will be sold by Cemetery as selected by consumers
and that crypts and niches will not necessarily be sold from Bank's Allotment and
Cemetery's Allotment on an alternating basis. Accordingly, in the event that Cemetery
sells a crypt or niche from Cemetery's Allotment at a time when proceeds of the sale are
payable to Bank, or Cemetery sells a crypt or niche from Bank's Allotment at a time
when proceeds are to be retained by Cemetery, Bank and Cemetery shall exchange such
crypt or niche to be sold for a comparable crypt or niche of equal value from the other
party's allotment so that the effect is to sell crypts and niches from Bank's Allotment and
Cemetery's Allotment on an alternating basis. Bank and Cemetery shall execute and
deliver deeds as appropriate to effectuate the exchanges.
2.3.3 Periodic Reports. Cemetery shall furnish to Bank copies of all reports
prepared by Cemetery pertaining to Unsold Inventory and sales of crypts and niches.
Without limiting the generality of the foregoing, Cemetery agrees to furnish to Bank on a
monthly basis a report identifying all crypts and niches sold by Cemetery since the prior
month's report.
2.4 Omitted.
2.5 Omitted.
2.6 Opening and Closing Fees. Cemetery shall be entitled to all opening and
closing fees with respect to crypts and niches, or rights of sepulture therein, sold from
Phase I, and Bank disclaims any right to such opening and closing fees.
2.7 Memorializations. Cemetery shall be entitled to all proceeds from the
sale of all memorializations associated with crypts and niches, or rights of sepulture
therein, sold from Phase I, and Bank disclaims any right to such proceeds.
2.8 Purchased Contracts in Default. In the event Bank terminates a
Purchased Contract for nonpayment ("Terminated Purchased Contract"), the crypt or
Settlement Agreement,
City of Lubbock— Community State Bank Page 10 of 21
niche purchased under such Terminated Purchased Contract shall continue to be owned
by Bank. Sales of such crypts and niches shall be subject to Section 2.3.1 as if such
crypts and niches were part of Bank's Allotment.
2.9 Other Contracts in Default. Except as provided in Section 2.8 hereof,
and so long as Cemetery has remitted to Bank any amount due to Bank under Section
2.3.1 hereof, as applicable, Cemetery or Cemetery's assignees shall have exclusive rights
of foreclosure and resale of any crypt or niche space in Phase I, the payment for which
the purchaser has defaulted upon, regardless of whether said crypt or niche space
originated from the Cemetery's Allotment or Bank's Allotment. Bank agrees that it shall
not be entitled to any proceeds from, or commission on, the subsequent sale, if any, of
said property, and disclaims any ownership interest therein.
III. PAYMENT OF EXPENSES AND
ALLOCATION OF PROCEEDS
3.1 Proceeds of Pledged Contracts. Bank is the owner of the Pledged
Contracts and shall have the right to retain all proceeds from Pledged Contracts received
by Bank prior to the effective date of this Agreement. On and after the effective date of
this Agreement, Bank shall have the right to retain all proceeds from Pledged Contracts
other than those included in Unsold Inventory. If Cemetery receives in the future any
proceeds of the Pledged Contracts (other than from those included in Unsold Inventory),
Cemetery will pay the amount of such proceeds to Bank within seven days of Cemetery's
receipt of such proceeds. Cemetery shall have no obligation to pay Bank any amounts
received by it from Crouch prior to the date of this Agreement.
3.2 Proceeds of Purchased Contracts. Bank is the owner of the Purchased
Contracts and shall have the right to retain all proceeds from Purchased Contracts
received by Bank prior to or after the effective date of this Agreement, free of any claim
Settlement Agreement,
City of Lubbock—Community State Bank Page 11 of 21
by Cemetery. If Cemetery receives in the future any proceeds of the Purchased Contracts
(other than from Terminated Purchased Contracts), Cemetery will pay the amount of such
proceeds to Bank within seven days of Cemetery's receipt of such proceeds. Cemetery
shall have no obligation to pay Bank any amounts received by it from Crouch prior to the
date of this Agreement.
IV. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties by Cemetery. Cemetery represents
and warrants to Bank the following:
(a) Cemetery has authority to enter into this Agreement;
(b) Cemetery is duly authorized to execute this Agreement;
(c) Cemetery owns indefeasible title to the real property on which
Phase I is to be located;
(d) Cemetery owns the claimed rights, interests, demands, actions, or
causes of action, obligations, or any other matter as so claimed in
this Agreement, and that it has not transferred, conveyed, pledged,
assigned, or made any other disposition of thereof.
4.2 Representations and Warranties by Bank. Bank represents and
warrants to Cemetery the following:
(a) Bank is a banking corporation duly organized and validly existing
under the laws of the State of Texas;
(b) Bank has authority to enter into this Agreement and to perform its
obligations under this Agreement;
Settlement Agreement,
City of Lubbock—Community State Bank Page 12 of 21
(c) The President or any Vice President of Bank is authorized to sign
this Agreement on behalf of Bank and to bind Bank;
(d) Bank acknowledges that it has been fully informed of all of the
risks associated with this Agreement, and acknowledges that it has
made independent inquiry relating to such risks and has satisfied
itself that it is willing to bear the associated risks.
(e) Bank owns the claimed rights, interests, demands, actions, or
causes of action, obligations, or any other matter as so claimed in
this Agreement, and that it has not transferred, conveyed, pledged,
assigned, or made any other disposition of thereof.
V. CONDITIONS PRECEDENT
5.1 Other Conditions Precedent. This Agreement shall become effective
only after it has been approved and entered by a court of competent jurisdiction as a
stipulated judgment in settlement of the Lawsuit as described in the Recitals of this
Agreement, and as exists between the parties hereto. If this Agreement does not become
effective for any reason, it shall be deemed negotiations for settlement purposes only and
will not be admissible in evidence or usable for any purposes whatsoever.
VI. GENERAL PROVISIONS
6.1 Amendments and Waivers. Any provision of this Agreement may be
amended or waived, but only if such amendment or waiver is in writing, duly authorized,
and signed by both parties, in the case of an amendment, or in the case of a waiver, by the
duly authorized person or official of the party waiving such provision.
Settlement Agreement,
City of Lubbock—Community State Sank Page 13 of 21
6.2 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in a planner so as to be effective and valid under applicable law, but if any
provision of this Agreement is determined to be invalid by a court of competent
jurisdiction, such provision shall be ineffective to the extent of such invalidity, but shall
not impair the validity of other provisions of this Agreement.
6.3 Successors and Assigns. This Agreement shall be binding upon
Cemetery and Bank and their respective successors and assigns, and shall inure to the
benefit of Cemetery and Bank and their respective successors and assigns. Except as
expressly set forth in this Agreement, this Agreement shall not be delegated or assigned
to a third party by the Cemetery or the Bank without the express written consent of the
other party to this Agreement.
6.4 Applicable Law. This Agreement shall be governed by the laws of the
State of Texas and, where applicable, by the laws of the United States. Exclusive venue
for any action brought with respect to this Agreement shall lie solely in Lubbock County,
Texas.
6.5 Findings of City. The City of Lubbock hereby finds that this Agreement
is entered into to settle ongoing litigation finally between the Cemetery and the Bank, and
that the best interests of the purchasers of crypts under the Crouch Installment Contracts
are served by providing, in substitution, Phase I. The City of Lubbock further fords that
the Granit Bronz Contract contemplated by the Agreement is entered into to preserve and
protect the public health and safety of the citizens of Lubbock, Texas, as there are
growing numbers of the public who purchased crypt or niche space by Crouch
Installment Contract who are and will be in need of said crypt or niche space to dispose
Settlement Agreement,
City of Lubbock— Community State Bank Page 14 of 21
of their loved ones' remains, and the number of said public will exceed the number of
available spaces in the temporary mausoleum. Further, the Granit Bronz Contract, as
approved, constitutes a change order of the original contract between Granit Bronz and
Crouch as purported agent of the City of Lubbock, and that Phase I, as contemplated in
the modified Granit Bronz Contract, fully satisfies and meets the interests of the
purchasers of crypt and niche space in Phase I as originally planned by the Crouch
Cemetery Agreement by providing to them a product comparable in all respects as that
which was marketed and sold to them under the Crouch Installment Contracts.
6.6 'Titles of Articles, Sections, and Subsections; Construction. All titles or
headings to articles, sections, subsections or other divisions of this Agreement or the
exhibits hereto are only for the convenience of the parties and shall not be construed to
have any effect or meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the agreement
between the parties hereto. This Agreement has been and shall be construed to have been
drafted by all parties to it so that the rule of construing ambiguities against the drafter
shall have no force or effect.
6.7 Notices. Except as otherwise provided herein, any notices which any
party is permitted or required to serve under this Agreement may be given by regular
U.S. mail, overnight delivery service, personal delivery, or facsimile transmission, and
such notice shall be effective upon the passage of three (3) days for regular U.S. mail,
upon receipt for overnight delivery service or personal delivery, or upon sending for
facsimile transmission.
Notice to Cemetery shall be given to:
Settlement Agreement,
City of Lubbock— Community State Bank Page 15 of 21
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Attn: Quincy White
Fax: (806) 775-2051
With copy to:
City Attorney
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Fax: (806) 775-3307
Notice to Bank shall be given to:
Community State Bank
12128 Ranch Road 620 North
Austin, Texas 78750
Attn: Shannon Durst
Fax: (512) 493-9625
6.8 Final Agreement. This Agreement represents the final agreement
between the parties concerning the subject matter hereof and may not be contradicted,
modified or amended by prior, contemporaneous, or subsequent oral agreement. This
Agreement may be pled as a full and complete defense to any action, suit, or other
proceeding, which may be instituted, prosecuted, or attempted for, upon, or in respect of
any of the claims released hereby. Cemetery and Bank agree that any such proceeding
would cause irreparable injury to the party against whom it is brought and that any court
of competent jurisdiction may enter an injunction restraining prosecution thereof.
6.9 Additional Acts. Each party to this Agreement covenants on behalf of
itself and its successors and assigns to execute promptly, with acknowledgment or
Settlement Agreement,
City of Lubbock — Community State Bank Page 16 of 21
affidavit if required, any and all documents and writings which may be necessary or
expedient in carrying out the purposes of this Agreement,
6.10 Joint Venture and Joint Enterprise. Nothing contained herein shall be
construed to imply a joint venture, joint enterprise, partnership or principal—agent
relationship between Cemetery and Bank.
6.11 Agreement Controlling. To the extent that the terms of this Agreement,
including all exhibits and attachments, are in conflict with any other agreement, including
but not limited to the agreements referenced in Article I and Section 1.1, the Purchased
Contracts, the Pledged Contracts, and the Crouch Cemetery Agreement, this Agreement
shall prevail. It is further understood that each and all of the provisions of this
Agreement are contractual and not mere recitals.
6.12 Releasees. Cemetery and Bank enter into this Agreement and do hereby
release, acquit, and forever discharge one another, their respective predecessors,
successors, assigns, owners, City Council, partners, members, managers, employees,
directors, legal representatives, insurers, independent contractors, agents, board members,
and attorneys (the "Releasees"), of and from any and all liability, claims, demands,
damages, attorneys' fees, costs, liens, expenses, services, actions, causes of action, or suit
in equity, of whatsoever kind or nature, whether heretofore or hereafter accruing, which
either party now has or may hereafter have, whether known or unknown, arising out of
the activities by either party, admitted or suffered as of, or related to, the subject matter of
this Agreement or associated claim, except insofar as said liability, claims, demands,
damages, attorneys' fees, costs, liens, expenses, services, actions, causes of action, or suit
in equity may arise from the breach of this Agreement by the Cemetery and/or Bank.
Settlement Agreement,
City of Lubbock— Community State Bank Page 17 of 21
6.13 Released Claims and Damages. This Agreement includes any
transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising
or occurring in connection with or related to the subject matter of this Agreement
including, but not limited to, all claims, demands, causes of actions of any nature,
whether in contract or in tort, or arising out of, under or by virtue of any statute or
regulation, that are recognized by law or that may be created or recognized in the future
by any manner, including, without limitation, by statute, regulation, or judicial decision,
for past, present and future damage or loss, or remedies of any kind that are now
recognized by law or that may be created or recognized in the future by any manner, and
including but not limited to the following: all actual damages, all exemplary and punitive
damages, all penalties of any kind, or statutory damages; provided, however, that nothing
herein shall operate, by definition or otherwise, to prevent either Cemetery or Bank from
pursuing any legal remedy against the other in connection with the breach of this
Agreement. Cemetery and Bank hereby declare that each fully understands the terms of
this Agreement, and voluntarily accept the above stated consideration and promises for
the purposes of making full and final settlement of any and all the injuries, damages,
expenses, and inconvenience above mentioned; provided, however, that Crouch &
Associates, Ltd. and Jay D. Crouch, and their predecessors, successors, personal
representatives, heirs, and assigns (the "Crouch Parties") are not included within the term
"Releasees," and Cemetery and Bank expressly reserve all rights and claims they may
have against the Crouch Parties, except to the extent that such claims would give rise to a
third party claim by the Crouch Parties and result in ultimate liability for Cemetery or
M
Settlement Agreement,
City of Lubbock—Community State Bank Page 18 of 21
6.14 Damages Resulting from Breach. Cemetery and Bank agree that the
damages suffered by the parties to this Agreement, or their successors and assigns as the
case may be, by reason of any breach of any provision of this Agreement shall include
not only the amount of any judgment that may be rendered against said City, persons,
firms, corporations, or other entities, or any of them, by reason of a breach of this
Agreement, but shall also include all damages suffered by them, including the cost of
reasonable attorneys' fees and other costs and expenses of instituting, preparing,
prosecuting, defending any action or suit resulting from a breach of this Agreement,
whether taxable or otherwise, and costs to them of reasonable attorneys' fees and all
other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit,
motion, or action to recover damages resulting from the breach of this Agreement,
whether taxable or otherwise.
6.15 Mistake. Each party assumes the risk of any mistake of fact or law with
regard to any aspect of this Agreement, the dispute described herein, or any asserted
rights released by this Agreement.
6.16 Dispute of Liability. Cemetery and Bank, by entering into this
Agreement, acknowledge that this settlement is a compromise of a disputed claim as to
the liability of the parties hereto for their injuries and damages, if any, in connection with
the subject matter of this Agreement, and the consideration and promises made herein are
not to be construed as an admission of liability on the part of either Cemetery or Bank. It
is understood that the existence of any liability or wrongdoing has been, and continues to
be, expressly denied by the Cemetery and Bank.
SIGNET) this, the ?4th day of FPh,,.,,grV , 2006.
Settlement Agreement,
City of Lubbock— Community State Bank Page 19 of 21
MARC MCD—OUGAL,
City of Lubbock
ATTEST:
BeAy Garza, City Secretary
City of Lubbock
Ej
Sherry G. 41liams, President
Community State Bank
Settlement Agreement,
City of Lubbock— Community State Bank Page 20 of 21
APPROVED AS TO CONTENT:
Quincy Whi Assistant City Manager
City of Lubbock
FIR-10fim
CiTy of LUBBOCK
P.O. Box 2000
Lubbock, Texas 79457
Telephone: (806) 775-2222
Facsimile: (806) 775-3307
Settlement Agreement,
City of Lubbock— Community State Bank
Richard Kelley, Attorney
State Bar No. 11203900
McGrNNis, LOCHRIDGE & KILGoRE, L.L.P.
919 Congress Avenue, Suite 1300
Austin, Texas 78701
Telephone: (512) 495-6068
Facsimile: (512) 505-6368
Page 21 of 21
Addendum "A"
Granit-Bronz, a division of the Cold Spring Granite Company ("Granit Bronz"), and the City of Lubbock, Texas
(the "City"), collectively referred to herein as the "Parties", hereto agree that the terms and conditions of this addendum
("Addendum `C"') shall be fully incorporated into that certain contract of even date between the Parties for the
construction of a community mausoleum (the "Contract"), and the Parties further agree that to the extent that this
Addendum "C" and the Contract conflict, the terms and conditions of this Addendum "C" shall control.
Granit-Bronz will be required to furnish a performance bond in accordance with Chapter 2253, Government
Code, in the amount of 100% of the total contract price in the event that said contract price exceeds $100,000 and Granit-
Bronz will further be required to furnish a payment bond in accordance with Chapter 2253, Government Code, in the
amount of 100% of the total contract price in the event that said contract price exceeds $25,000. Said statutory bonds
should be issued by a company carrying a current Best Rating of B or superior.
It shall be Granit-Bronz's sole responsibility to inspect the site of the work and to inform itself regarding all local
conditions under which the work is to be done. It shall be understood and agreed that all such factors have been
thoroughly investigated and considered at the date into which the Parties enter into the Contract.
Attention of Granit-Bronz is particularly called to the schedule of general prevailing rate of per diem wages
included in the contract documents on file in the office of the Purchasing & Contract Manager of the City of Lubbock,
which document is specifically referred to in this Addendum "C." Granit-Bronz's attention is further directed to
provision of Article 5159a, Vernon's Ann. Civil St., and the requirements contained therein concerning the above wage
scale and payment by the contractor of the prevailing rates of wages as heretofore established by owner in said wage
scale.
GENERAL TERMS AND CONDITIONS
1 ADDENDA & Modifications
1.1 All addenda, amendments, and interpretations of this solicitation shall be in writing. The City of Lubbock
shall not be legally bound by any amendment or interpretation that is not in writing. Only information
supplied by the City of Lubbock Purchasing & Contract Management Department in writing should be
used. All contacts that Granit-Bronz may have had before or after receipt of this Addendum "C" with
any individuals, employees, or representatives of the City and any information that may have been read in
any news media or seen or heard in any communication facility regarding this matter should be
disregarded.
2 TRADE SECRETS CONFIDENTIAL INFORMATION AND THE TEXAS PUBLIC INFORMATION ACT
2.1 If you consider any portion of the Contract or addenda thereto to be privileged or confidential by statute
or judicial decision, including trade secrets and commercial or financial information, clearly identify
those portions.
2.2 The City of Lubbock will honor your notations of trade secrets and confidential information and decline
to release such information initially, but please note that the final determination of whether a particular
portion of the Contract is in fact a trade secret or commercial or financial information that may be
withheld from public inspection will be made by the Texas Attorney General or a court of competent
jurisdiction. In the event a public information request is received for a portion of the Contract that you
have marked as being confidential information, you will be notified of such request and you will be
required to justify your legal position in writing to the Texas Attorney General pursuant to Section
552.305 of the Government Code. In the event that it is determined by opinion or order of the Texas
Attorney General or a court of competent jurisdiction that such information is in fact not privileged and
confidential under Section 552.110 of the Government Code and Section 252.049 of the Local
Government Code, then such information will be made available to the requester.
2.3 Marking the entire Contract CONFIDENTIAL/PROPRIETARY is not in conformance with the Texas
Open Records Act.
3 CONTRACT DOCUMENTS
3.1 All work covered by the Contract shall be done in accordance with contract documents described in the
General Conditions.
32 Granit-Bronz shall be thoroughly familiar with all of the requirements set forth in the Contract and
addenda thereto for the construction of this project and shall be responsible for the satisfactory
completion of all work contemplated by said documents.
4 TIME AND ORDER FOR COMPLETION
4.1 The construction covered by the Contract shall be substantially completed within 180 days of the
Contract's execution.
4.2 Granit-Bronz will be permitted to prosecute the work in the order of its own choosing, provided,
however, the City reserves the right to require Granit-Bronz to submit a progress schedule of the work
contemplated by the contract documents.
5 PAYMENT
All payments due Granit-Bronz shall be made in accordance with the provisions of the General Conditions of the
contract documents.
6 AFFIDAVITS OF BILLS PAID
The City of Lubbock reserves the right, prior to final acceptance of this project to require Granit-Bronz to
execute an affidavit that all bills for labor, materials and incidentals incurred in the construction of the
improvements contemplated by the contract documents have been paid in full and that there are no claims
pending, of which Granit-Bronz has been notified.
7 MATERIALS AND WORKMANSHIP
The intent of these contract documents is that only materials and workmanship of industry standard quality and
grade will be furnished. The fact that the specifications may fail to be sufficiently complete in some detail will
not relieve Granit-Bronz of full responsibility for providing materials of industry standard quality and for
protecting them adequately until incorporated into the project. The presence or absence of a representative of the
City on the site will not relieve Granit-Bronz of full responsibility of complying with this provision. The
specifications for materials and methods set forth in the contract documents provide minimum standards of
quality, which the City believes necessary to procure a satisfactory project.
8 GUARANTEES
8.1 All equipment and materials incorporated in the project and all construction shall be guaranteed against
defective materials and workmanship. Prior to final acceptance, Granit-Bronz shall furnish to the City, a
written general guarantee which shall provide that Granit-Bronz shall remedy any defects in the work,
and pay for any and all damages of any nature whatsoever resulting in such defects, when such defects
appear within ONE year from date of final acceptance of the work as a result of defective materials or
workmanship, at no cost to the City.
8.2 Omitted.
8.3 The obligations contained herein apply to products and services provided by Granit-Bronz, its sub-
contractor or any third party involved in the creation or development of the products and services to be
delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations
contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and
under this Contract including, but not limited to, its right pertaining to termination or default.
2
8.4 The warranties contained herein are separate and discrete from any other warranties specified in this
Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation to Granit-
Bronz's liability which may be specified in this Contract, -its appendices, its schedules, its annexes or any
document incorporated in this Contract by reference.
9 PROTECTION OF THE WORK
Granit -Bron shall be responsible for the care, preservation, conservation, and protection of all materials,
supplies, machinery, equipment, tools, apparatus, accessories, facilities, and all means of construction, and any
and all parts of the work whether Granit -Bran has been paid, partially paid, or not paid for such work, until the
date the City issues its certificate of completion to Granit-Bronz.
10 TEXAS STATE SALES TAX
10.1 This Contract is issued by an organization which qualifies for exemption provisions pursuant to
provisions of Article 20.04 of the Texas Limited Sales, Excise and Use Tax Act.
10.2 The City of Lubbock must obtain a limited sales, excise and use tax permit which shall enable Granit-
Bronz and Cold Spring Granite Companyto buy the materials to be incorporated into the work without
paying the tax at the time of purchase.
11 PROTECTION OF SUBSURFACE LINES AND STRUCTURES
It shall be Granit-Bronz's responsibility to prosecute the work contemplated by the contract documents in such a
way as to exercise due care to locate and prevent damage to all underground pipelines, utility lines, conduits or
other underground structures which might or could be damaged by Granit-Bronz during the construction of the
project contemplated by these contract documents. The City of Lubbock agrees that it will furnish Granit-Bronz
the location of all such underground lines and utilities of which it has knowledge. All such underground lines or
structures cut or damaged by Granit-Bronz during the prosecution of the work contemplated by this contract shall
be repaired immediately by Granit-Bronz to the satisfaction of the City of Lubbock, Texas, at Granit-Bronz's
expense.
12 BARRICADES AND SAFETY MEASURES
Granit-Bronz shall, at its own expense, furnish and erect such barricades, fences, lights and danger signals, and
shall take such other precautionary measures for the protection of persons, property and the work as may be
necessary. Granit-Bronz will be held responsible for all damage to the work due to failure of barricades, signs,
and lights to protect it, and when damage is incurred, the damaged portion shall be immediately removed and
replaced by Granit-Bronz at its own cost and expense. Granit-Bronz's responsibility for maintenance of
barricades, signs, and lights shall not cease until the date of issuance to Granit -Bron of City's certificate of
acceptance of the project.
13 EXPLOSIVES
13.1 The use of explosives will not be permitted unless written permission to do so is obtained by Granit-
Bronz from the City. In all cases where written permission is obtained for the use of explosives, Granit-
Bronz shall assume full responsibility for all damage, which may occur as a direct or indirect result of the
blasting. In addition, in all cases where explosives are authorized to be used, Granit-Bronz shall use
utmost care so as not to endanger life or property and Granit-Bronz shall further use only such methods
as are currently utilized by persons, firms, or corporations engaged in similar type of construction
activity.
13.2 Explosive materials shall not be stored or kept at the construction site by Granit-Bronz.
13.3 In all cases where explosives are to be used during the construction of the project contemplated by this
contract, it shall be the duty of Granit-Bronz to notify each utility company having structures (above or
below the ground) in proximity to the site of the work of Granit-Bronz's intention to use explosives, and
such notice shall be given sufficiently in advance to enable the companies to take such steps as they may
deem necessary to protect their property from injury. Such notice, however, shall not relieve Granit-
Bronz of responsibility for any damage resulting from its blasting operations.
14 GRANIT-BRONZ'S REPRESENTATIVE
Granit -Bron shall be required to have a responsible representative available at all times while the work is in
progress under this contract. Granit-Bronz shall be required to furnish the name, address and telephone number
where such representative may be reached during the time that the work contemplated by this contract is in
progress.
15 INSURANCE
15.1 Granit-Bronz shall not commence work under this contract until it has obtained all insurance as required
in the General Conditions of the contract documents, from an underwriter authorized to do business in
the State of Texas and satisfactory to the City. Proof of coverage shall be furnished to the City and
written notice of cancellation or any material change will be provided ten (10) days in advance of
cancellation or change. All policies shall contain an agreement on the part of the insurer waiving the
right to subrogation. Granit-Bronz shall procure and carry at its sole cost and expense through the life of
this contract, insurance protection as hereinafter specified. Coverage in excess of that specified herein
also shall be acceptable. Such insurance shall be carried with an insurance company authorized to
transact business in the State of Texas and shall cover all operations in connection with this Contract,
whether performed by Granit-Bronz or a subcontractor, or separate policies shall be provided covering
the operation of each subcontractor. A certificate of insurance specifying each and all coverages shall be
submitted before contract execution.
15.2 PROOF OF COVERAGE SHALL BE FURNISHED TO THE CITY OF LUBBOCK IN THE
FORM OF A CERTIFICATE OF INSURANCE. THE INSURANCE CERTIFICATES
FURNISHED SHALL NAME THE CITY OF LUBBOCK AS A PRIMARY ADDITIONAL
INSURED AND PROVIDE A WAIVER OF SUBROGATION IN FAVOR OF THE CITY OF
LUBBOCK AS REQUIRED BELOW, OR IN THE ALTERNATIVE, SHALL BE
ACCOMPANIED BY A STATEMENT FROM GRANIT-BRONZ TO THE EFFECT THAT NO
WORK ON THIS PARTICULAR PROJECT SHALL BE SUBCONTRACTED. IT SHALL BE
GRANIT-BRONZ'S RESPONSIBILITY TO PROVIDE TO CITY ALL PROOF OF COVERAGE
INSURANCE DOCUMENTS INCLUDING WORKERS COMPENSATION COVERAGE FOR
EACH SUBCONTRACTOR
16 LABOR AND WORKING HOURS
16.1 Attention of Granit-Bronz is particularly called to the schedule of general prevailing rate of per diem
wages included in these contract documents. The wage rate that must be paid on this project shall not be
less than specified in the schedule of general prevailing rates of per diem wages as above mentioned.
Granit-Bronz's attention is further directed to the requirements of Article 5159x, Vernon's Annotated
Civil Statutes providing for the payment of the wage schedules above mentioned and Granit-Bronz's
obligations thereunder. The inclusion of the schedule of general prevailing rate of per diem wages in
these contract documents does not release Granit-Bronz from compliance with any wage law that may be
applicable. Construction work under this contract requiring an inspector will not be performed on
weekends or holidays unless the following conditions exist:
16.1.1 The project being constructed is essential to the City of Lubbock's ability to provide the
necessary service to its citizens.
16.1.2 Belays in construction are due to factors outside the control of Granit-Bronz. Granit-Bronz is
approaching the penalty provisions of the Contract and Granit-Bronz can show it has made a
diligent effort to complete the Contract within the allotted time.
16.2 Before construction work requiring an inspector is to be performed on weekends or holidays, Granit-
Bronz must notify City's Representative not less than three full working days prior to the weekend or
4
holiday it desires to do work and obtain written permission from the City's Representative to do such
work. The final decision on whether to allow construction work requiring an inspector on weekends or
holidays will be made by the City's Representative.
16.3 In any event, if a condition should occur or arise at the site of this project or from the work being done
under this Contract which is hazardous or dangerous to property or life, Granit -Bron shall immediately
commence work, regardless of the day of the week or the time of day, to correct or alleviate such
condition so that it is no longer dangerous to property or life.
17 PAYMENT OF EMPLOYEES AND FILING OF PAYROLLS
Granit -Bron and each of its subcontractors shall pay each of its employees engaged in work on the project under
this contract in full (less mandatory legal deductions) in cash, or by check readily cashable without discount, not
less often than once each week. Granit -Bronx and each of its subcontractors engaged at the site of the work shall
not later than the seventh day following the payment of wages, file with the City's Representative, or Engineer, a
certified, sworn, legible copy of such payroll. This shall contain the name of each employee, his classification,
the number of hours worked on each day, rate of pay, and net pay. The affidavit shall state that the copy is a true
and correct copy of such payroll, that no rebates or deductions (except as shown) have been made, or will in the
future be made from the wages paid as shown thereon. Granit-Bronz must classify employees according to one
of the classifications set forth in the schedule of general prevailing rate of per diem wages, which schedule is
included in the contract documents. Granit -Bron shall forfeit as a penalty to the City of Lubbock on whose
behalf this contract is made, ten dollars for each laborer, workman, or mechanic employed for each calendar day,
or portion thereof, such laborer, workman or mechanic is paid less than the wages assigned to his particular
classification as set forth in the schedule of general prevailing rate of per diem wages included in these contract
documents.
18 Granit-Bronz hereby agrees to commence the work on the above project on or before a date to be specified in a
written "Notice to Proceed" of the City and to substantially complete the project on or before 180 days from the
date of the Contract's executional stipulated in the specifications and other contract documents. Granit-Bronz
hereby further agrees to pay to City as liquidated damages the sum of TWENTY-FIVE DOLLARS ($25.00) for
each consecutive calendar day in excess of the time set forth herein above for completion of this project, all as
more fully set forth in the general conditions of the contract documents.
19 Granit-Bronz hereby declares that a Granit-Bronz representative has visited the site of the work and has carefully
examined the plans, specifications and contract documents pertaining to the work covered by this Contract, and it
further agrees to commence work on or before the date specified in the written notice to proceed, and to
substantially complete the work for which it has contracted, as provided in the contract documents.
ATTEST:
Secretary
Date:
Authorized Signature
(Printed or Typed Name)
Company
Address
City, County
State
�-
Zip Code
Granit-Bronx acknowledges receipt of the following addenda:
Addenda No.
Date
Addenda No.
Date
Addenda No.
Date
Addenda No.
Date
4.
5.
8.
4.
10
LIST OF SUBCONTRACTORS
Minority Owned
Yes No
THIS FORM SHALL BE COMPLETED AND RETURNED ALONG WITH
INSURANCE CERTIFICATES FOR EACH SUB -CONTRACTOR PURSUANT TO
SECTION 28G OF THE GENERAL CONDITIONS.
CITY OF LUBBOCK
INSURANCE REQUIREMENT AFFIDAVIT
To Be Completed by Granit-Bronz
and attached hereto
I, the undersigned representative of Granit-Bronz, certify that the insurance requirements contained in this document have
been reviewed by me with the below identified Insurance Agent/Broker. I will be able to, within ten (10) business days
after being requested to do so by the City of Lubbock, furnish a valid insurance certificate to the City meeting all of the
requirements defined in this Contract.
Contractor (Signature) Contractor (Print)
CONTRACTOR'S FIRM NAME: Granit-Bronz, a division of the Cold Spring Granite Company
CONTRACTOR'S FIRM ADDRESS: 202 South 3`d Avenue
Cold Spring, Minnesota 56320
Name of Agent/Broker:
Address of Agent/Broker:
City/State/Zip:
Agent/Broker Telephone Number:
Date:
SUSPENSION AND DEBARMENT CERTIFICATION
Federal Law (A-102 Common Rule and OMB Circular A-110) prohibits non -Federal entities from contracting with or
making sub -awards under covered transactions to parties that are suspended or debarred or whose principals are
suspended or debarred. Covered transactions include procurement contracts for goods or services equal to or in excess of
$25,000 and all non -procurement transactions (e.g., sub -awards to sub -recipients).
Contractors receiving individual awards of $25,000 or more and all sub -recipients must certify that their organization and
its principals are not suspended or debarred by a Federal agency.
Before an award of $25,000 or more can be made to your firm, you must certify that your organization and its principals
are not suspended or debarred by a Federal agency.
I, the undersigned agent for the firm named below, certify that neither this firm nor its principals are suspended
or debarred by a Federal agency.
COMPANY NAME: Granit-Bronz, a division of the Cold Spring Granite Company
Signature of Company
Date Signed:
Printed name of company official signing above:
STATUTORY PAYMENT BOND PURSUANT TO SECTION 2253.021(a)
OF THE TEXAS GOVERNMENT CODE
(CONTRACTS MORE THAN $25,000)
KNOW ALL MEN BY THESE PRESENTS, that
as
Principal(s), and
(hereinafter called the Principal(s),
(hereinafter called the Surety(s), as Surety(s), are held and firmly bound unto the City of Lubbock (hereinafter called the
Obligee), in the amount of Dollars ($ ) lawful money of the
United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators,
executors, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written contract with the Obligee, dated the day of
20 , to
and said Principal under the law is required before commencing the work provided for in said contract to execute a bond
in the amount of said contract which contract is hereby referred to and made a part hereof as fully and to the same extent
as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall pay
all claimants supplying labor and material to him or a subcontractor in the prosecution of the work provided for in said
contract, then, this obligation shall be void; otherwise to remain in full force and effect;
PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Section 2253.021(a) of the
Texas Government Code, and all liabilities on this bond shall be determined in accordance with the provisions of said
Article to the same extent as if it were copied at length herein.
IN WITNESS WHEREOF, the said Principal (s) and Surety (s) have signed and sealed this instrument this
_ day of 20
Surety
*By.
(Title)
10
(Company Name)
By:
(Printed Name)
(Signature)
(Title)
The undersigned surety company represents that it is duly qualified to do business in Texas, and hereby
designates an agent resident in Lubbock County to whom any requisite notices may be delivered
and on whom service of process may be had in matters arising out of such suretyship.
Surety
* By:
Approved as to form:
City of Lubbock
By:
City Attorney
(Title)
* Note: If signed by an officer of the Surety Company there must be on file a certified extract from the by-laws showing
that this person has authority to sign such obligation. If signed by an Attorney in Fact, we must have copy of power of
attorney for our files.
11
STATUTORY PERFORMANCE BOND PURSUANT TO SECTION 2253.021(a)
OF THE TEXAS GOVERNMENT CODE
(CONTRACTS MORE THAN $100,000)
KNOW ALL MEN BY THESE PRESENTS, that (hereinafter called the Principal(s), as Principal(s), and
(hereinafter called the Surety(s), as Surety(s), are held and firmly bound unto the City of Lubbock (hereinafter called the
Obligee), in the amount of Dollars ($ ) lawful money of the
United States for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators,
executors, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written contract with the Obligee, dated the _ day of
20--, to
and said principal under the law is required before commencing the work provided for in said contract to execute a bond
in the amount of said contract which contract is hereby referred to and made a part hereof as fully and to the same extent
as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall
faithfully perform the work in accordance with the plans, specifications and contract documents, then this obligation shall
be void; otherwise to remain in full force and effect.
PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Section 2253.021(a) of the
Texas Government Code, and all liabilities on this bond shall be determined in accordance with the provisions of said
article to the same extent as if it were copied at length herein.
IN WITNESS WHEREOF, the said Principal (s) and Surety (s) have signed and sealed this instrument this
day of , 20
Surety
By:
(Title)
(Company Name)
By:
(Printed Name)
(Signature)
(Title)
The undersigned surety company represents that it is duly qualified to do business in Texas, and hereby
designates an agent resident in Lubbock County to whom any requisite notices may be delivered and on
whom service of process may be had in matters arising out of such suretyship.
Surety
*By.
(Title)
Approved as to Form
City of Lubbock
By:
City Attorney
* Note: If signed by an officer of the Surety Company, there must be on file a certified extract from the by-laws showing
that this person has authority to sign such obligation. If signed by an Attorney in Fact, we must have copy of power of
attorney for our files.
TO: CITY OF LUBBOCK
P.O. BOX 2000
LUBBOCK, TX 79457
CERTIFICATE OF INSURANCE
DATE:
TYPE OF PROJECT:
THIS IS TO CERTIFY THAT _Granit-Bronz, a division of the Cold Spring Granite Company, 202 South 3'" Avenue,
Cold Spring, Minnesota 56320 is, at the date of this certificate, insured by this Company with respect to the business
operations hereinafter described, for the typed of insurance and in accordance with the provisions of the standard policies
used by this company, the further hereinafter described. Exceptions to standard policy noted hereon.
TYPE OF INSURANCE
POLICY NUMBER
EFFECTIVE
EFFECTIVE
LIMITS
DATE
DATE
GENERAL LIABILITY
❑ Commercial General Liability
General Aggregate $
❑ Claims Made
Products-Comp/Op AGG $
❑ Occurrence
Personal & Adv. Injury $
❑ Owner's & Contractors Protective
Each Occurrence $
❑
Fire Damage (Any one Fire) $
$
Med Exp (Any one Person)
AUTOMOTIVE LIABILITY
❑ Any Auto
Combined Single Limit $
❑ All Owned Autos
Bodily Injury (Per Person) $
❑ Scheduled Autos
Bodily Injury (Per Accident) $
❑ Hired Autos
Property Damage $
❑ Non -Owned Autos
❑
GARAGE LIABILITY
❑ Any Auto
Auto Only - Each Accident $
❑
Other than Auto Only:
Each Accident $
Aggregate $
❑ BUILDER S'RISK
❑ 100% of the Total Contract Price
$
❑ INSTALLATION FLOATER
$
EXCESS LIABILITY
❑ Umbrella Form
Each occurrence $
Aggregate $
Ll Other Than Umbrella Form
$
WORKERS COMPENSA TION A ND
EMPLOYERS' LIABILITY
The Proprietor/ ❑ Included
Statutory Limits
Partners/Executive ❑ Excluded
Each Accident $
Officers are:
Disease Policy Limit $
Disease -Each Employee $
OTHER
The above policies either in the body thereof or by appropriate endorsement provide that they may not be changed or
canceled by the insurer in less than the legal time required after the insured has received written notice of such change or
cancellation, or in case there is no legal requirement, in less than five days in advance of cancellation.
FIVE COPIES OF THE CERTIFICATE OF INSURANCE
(Name of Insurer)
MUST BE SENT TO THE CITY OF LUBBOCK
By:
Title:
The Insurance Certificates Furnished shall (lame the City of Lubbock as a Primary Additional Insured on
General Liability and Automobile Liability and provide a Waiver of Subrogation in favor of the City of Lubbock.
CONTRACTOR CHECKLIST
GRANIT-BRONZ agrees that it shall:
(1) provide coverage for its employees providing services on a project, for the duration of the project based
on proper reporting of classification codes and payroll amounts and filling of any coverage agreements;
(2) provide a certificate of coverage showing workers' compensation coverage to the City prior to beginning
work on the project;
(3) provide the City, prior to the end of the coverage period, a new certificate of coverage showing extension
of coverage, if the coverage period shown on the contractor's current certificate of coverage ends during
the duration of the project;
(4) obtain from each person providing services on a project, and provide to the City:
(A) a certificate of coverage, prior to that person beginning work on the project, so the City 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 Granit-Bronz, a new certificate of coverage showing
extension of coverage, if the coverage period shown on the current certificate of coverage ends
during the duration of the project;
(5) retain all required certificates of coverage on file for the duration of the project and for one year
thereafter;
(6) notify the City in writing by certified mail or personal delivery, within ten (10) days after Granit-Bronz
knew or should have known, of any change that materially affects the provision of coverage of any
person providing services on the project;
(7) post a notice on each project site informing all persons providing services on the project that they are
required to be covered, and stating how a person may verify current coverage and report failure to
provide coverage. This notice does not satisfy other posting requirements imposed by the Act or other
commission rules. This notice must be printed in at least 19 -point normal type, and shall be in both
English and Spanish and any other language common to the worker population. The text for the notices
shall be the following text provided by the commission on the sample notice, without any additional
words or changes:
PROOF OF COVERAGE SHALL BE FURNISHED TO THE CITY OF LUBBOCK IN THE FORM OF A
CERTIFICATE OF INSURANCE. THE INSURANCE CERTIFICATES FURNISHED SHALL NAME THE
CITY OF LUBBOCK AS A PRIMARY ADDITIONAL INSURED AND PROVIDE A WAIVER OF
SUBROGATION IN FAVOR OF THE CITY OF LUBBOCK, OR IN THE ALTERNATIVE, SHALL BE
ACCOMPANIED BY A STATEMENT FROM THE CONTRACTOR TO THE EFFECT THAT NO WORK ON
THIS PARTICULAR PROJECT SHALL BE SUBCONTRACTED. IT SHALL BE THE CONTRACTOR'S
RESPONSIBILITY TO PROVIDE TO THE OWNER ALL PROOF OF COVERAGE INSURANCE
DOCUMENTS INCLUDING WORKERS COMPENSATION COVERAGE FOR EACH SUBCONTRACTOR
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REQUIRED WORKERS' COMPENSATION COVERAGE
"The law requires that each person working on this site or providing services related to this construction project must (see
reverse) be covered by workers' compensation insurance. This includes persons providing, hauling, or delivering
equipment and materials, or providing labor or transportation or other service related to the project, regardless of the
identity of their employer or status as an employee."
"Call the Texas Workers' Compensation Commission at (512)440-3789 to receive information on the
legal requirement for coverage, to verify whether your employer has provided the required coverage, or
to report an employer's failure to provide coverage." and
(8) contractually require each person with whom it contracts to provide services on a project, to:
(A) provide coverage based on proper reporting of classification codes and payroll amounts and
filing of any coverage agreements for all of its employees providing services on the project, for
the duration of the project;
(B) provide a certificate of coverage to the contractor prior to that person beginning work on the
project;
(C) include in all contracts to provide services on the project the language in subsection (e) (3) of
this rule;
(D) provide the contractor, prior to the end of the coverage period, a new certificate of coverage
showing extension of coverage, if the coverage period shown on the current certificate of
coverage ends during the duration of the project;
(E) obtain from each other person with whom it contracts, and provide to the contractor:
(i) a certificate of coverage, prior to the other person beginning work on the project; and
(ii) prior to the end of the coverage period, a new certificate of coverage showing extension of
the coverage period, if the coverage period shown on the current certificate of coverage ends
during the duration of the project;
(F) retain all required certificates of coverage on file for the duration of the project and for one year
thereafter;
(G) notify the governmental entity in writing by certified mail or personal delivery, within ten (10)
days after the person knew or should have known, of any change that materially affects the
provision of coverage of any person providing services on the project; and
(H) contractually require each other person with whom it contracts, to perform as required by
paragraphs (A) - (H), with the certificate of coverage to be provided to the person for whom they
are providing services.
ADDITIONAL PROVISIONS
STATE OF TEXAS
COUNTY OF LUBBOCK
THIS AGREEMENT, made and entered into this day of , 2006 by and between
the City of Lubbock, County of Lubbock, State of Texas, acting by and through the Mayor, City of Lubbock, thereunto
authorized to do so, hereinafter referred to as OWNER, and Granit-Bronz, a division of the Cold Spring Granite
Company of the City of Cold Spring, County of Stearns, and the State of Minnesota, hereinafter termed CONTRACTOR.
WITNESSETH: That for and in consideration of the payments and agreements hereinafter mentioned, to be made and
performed by the OWNER and under the conditions expressed in the bond bearing even date herewith (if any) the
CONTRACTOR hereby agrees with OWNER to commence and complete the construction of certain improvements
generally described as follows:
One (1) 588 -crypt, 100 -niche mausoleum at the City of Lubbock Cemetery
and all extra work in connection therewith, under the terms as stated in the contract documents and at his (or their) own
proper cost and expense to furnish all materials, supplies, machinery, equipment, tools, superintendence, labor, insurance
and other accessories and services necessary to complete the said construction in accordance with the contract
documents as defined in the General Condition of Agreement.
The CONTRACTOR hereby agrees to commence work within ten days after the date written notice to do so shall have
been given to him and to substantially complete same within the time specified in the contract documents.
The OWNER agrees to pay the CONTRACTOR in current funds for the performance of the contract in accordance
with the terms therein, subject to additions and deductions, as provided in the contract documents and to make payment
on account thereof as provided therein.
IN WITNESS WHEREOF, the parties to these presents have executed this agreement in Lubbock, Lubbock County,
Texas in the year and day first above written.
CITY OF LUBBOCK, TEXAS (OWNER): CONTRACTOR:
By:
MAYOR
ATTEST:
City Secretary
APPROVED AS TO CONTENT:
Owner's Representative
Director
APPROVED AS TO FORM:
City Attorney
By:
PRINTED NAME:
TITLE:
COMPLETE ADDRESS:
Company
Address
City, State, Zip
ATTEST:
Corporate Secretary
GENERAL CONDITIONS OF THE AGREEMENT
OWNER
Whenever the word Owner, or First Party, are used in this contract, it shall be understood as referring to the City
of Lubbock, Texas.
CONTRACTOR
Whenever the word Contractor, or Second Party, is used, it shall be understood to mean the person, persons, co-
partnership or corporation, to wit Granit-Bronz, a division of the Cold Spring Granite Company who has agreed
to perform the work embraced in this contract, or their legal representative.
3. OWNER'S REPRESENTATIVE
Whenever the word Owner's Representative or representative is used in this contract, it shall be understood as
referring to City of Lubbock or its representative so designated who will inspect constructions; or to such other
representatives, supervisors, architects, engineers, or inspectors as may be authorized by said Owner to act in any
particular under this agreement. Engineers, supervisors or inspectors will act for the Owner under the direction
of Owner's Representative, but shall not directly supervise the Contractor or persons acting on behalf of the
Contractor.
4. CONTRACT DOCUMENTS
The contract's documents shall consist of the Signed Agreement, Statutory Bonds (if required), General
Conditions of the Agreement, Special Conditions of the Agreement (if any), Specifications, Pians, insurance
Certificates, and all other documents. The above described materials are sometimes referred to herein as the
"contract" or "contract documents".
INTERPRETATION OF PHRASES
Whenever the words "Directed," "Permitted," "Designated," "Required," "Considered Necessary," "Prescribed,"
or words of like import are used, it shall be understood that the direction, requirement, permission, order,
designation or prescription of the Owner's Representative is intended; and similarly, the words "Approved,"
"Acceptable," "Satisfactory," or words of like import shall mean approved by or acceptable or satisfactory to the
Owner's Representative.
6. SUBCONTRACTOR
The term Subcontractor, as employed herein, includes only those having a direct contract with the Contractor for
performance of work on the project contemplated by these contract documents. Owner shall have no
responsibility to any Subcontractor employed by Contractor for performance of work on the project contemplated
by these contract documents, but said Subcontractors will look exclusively to Contractor for any payments due
Subcontractor.
7. WRITTEN NOTICE
Written notice shall be deemed to have been duly served if delivered in person to the individual or to a member
of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent certified mail to
the last business address known to the party who gives the notice.
8. CONTRACTOR'S RESPONSIBILITIES
Unless otherwise stipulated, the Contractor shall provide and pay for all materials, supplies, machinery,
equipment, tools, superintendence, labor, insurance, and all water, light, power, fuel, transportation and all other
facilities necessary for the execution and completion of the work covered by the contract documents. Unless
otherwise specified, all materials shall be new and both workmanship and materials shall be of a good quality.
The Contractor shall, if required, furnish satisfactory evidence as to the kind and quality of materials. Materials
or work described in words which so applied have well known, technical or trade meaning shall be held to refer
such recognized standards.
All work shall be done and all materials furnished in strict conformity with the contract documents.
9. SUBSTANTIALLY COMPLETED
The term "Substantially Completed" is meant that the structure or project contemplated by the contract
documents has been made suitable for use or occupancy or the facility is in a condition to serve its intended
purpose, but still may require minor miscellaneous work and adjustment.
10. LAYOUT
Except as specifically provided herein, the Contractor shall be responsible for laying out all work and shall
accomplish this work in a manner acceptable to the Owner's Representative. The Owner's Representative will
check the Contractor's layout of all major structures and any other layout work done by the Contractor at
Contractor's request, but this check does not relieve the Contractor of the responsibility of correctly locating all
work in accordance with the Plans and Specifications.
11. KEEPING OF PLANS AND SPECIFICATIONS ACCESSIBLE
The Contractor shall be furnished copies of all Plans and Specifications without expense to Contractor and
Contractor shall keep one copy of same consistently accessible on the job site.
12. RIGHT OF ENTRY
The Owner's Representative may make periodic visits to the site to observe the progress or quality of the
executed work and to determine, in general, if the work is proceeding in accordance with the contract documents.
Owner's Representative will not be required to make exhaustive or continuous onsite inspections to check the
quality or quantity of the work, nor will Owner's Representative be responsible for the construction means,
methods, techniques, sequences or procedures, or the safety precautions incident thereto. Notwithstanding the
Owner's Representative's rights of entry hereunder, the Owner's Representative will not be responsible for the
Contractor's failure to perform the work in accordance with the Contract Documents.
13. LINES AND GRADES
All lines and grades shall be furnished by the Owner's Representative whenever Owner's Representative deems
said lines and grades are necessary for the commencement of the work contemplated by these contract documents
or the completion of the work contemplated by these contract documents. Whenever necessary, Contractor shall
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suspend its work in order to permit Owner's Representative to comply with this requirement, but such suspension
will be as brief as practical and Contractor shall be allowed no extra compensation therefore. The Contractor
shall give the Owner's Representative ample notice of the time and place where lines and grades will be needed.
All stakes, marks, etc., shall be carefully preserved by the Contractor, and in case of careless destruction or
removal by Contractor, its Subcontractors, or its employees, such stakes, marks, etc., shall be replaced by the
Owner's Representative at Contractor's expense.
14. OWNER'S REPRESENTATIVE'S AUTHORITY AND DUTY
Unless otherwise specified, it is mutually agreed between the parties to this Agreement that the Owner's
Representative has the authority to review all work included herein. The Owner's Representative has the
authority to stop the work whenever such stoppage may be necessary to ensure the proper execution of the
contract. The Owner's Representative shall, in all cases, determine the amounts and quantities of the several kinds
of work which are to be paid for under the contract documents, and shall determine all questions in relation to
said work and the construction thereof, and shall, in all cases, decide every question which may arise relative to
the execution of this contract on the part of said Contractor. The decision of the Owner's Representative shall be
conclusive in the absence of written objection to same delivered to Owner's Representative within fifteen (15)
calendar days of any decision or direction by Owner's Representative. In the absence of timely written objection
by Contractor, as provided herein, any and all objection or objections shall be deemed waived.
15. SUPERINTENDENCE AND INSPECTION
It is agreed by the Contractor that the Owner's Representative shall be and is hereby authorized to appoint from
time to time such subordinate engineers, supervisors, or inspectors as the said Owner's Representative may deem
proper to inspect the materials furnished and the work done under this Agreement, and to see that said material is
furnished and said work is done in accordance with the specifications therefore. The Contractor shall furnish all
reasonable aid and assistance required by the subordinate engineers, supervisors or inspectors for the proper
inspection and examination of the work. The Contractor shall regard and obey the directions and instructions of
any subordinate engineers, supervisors or inspectors so appointed, when such directions and instructions are
consistent with the obligations of this Agreement and accompanying plans and specifications provided, however,
should the Contractor object to any orders by any subordinate engineer, supervisor or inspector, the Contractor
may within fifteen (15) calendar days make written appeal to the Owner's Representative for its decision. In the
absence of timely written objection by Contractor, as provided herein, any and all objection or objections shall be
deemed waived.
16. CONTRACTOR'S DUTY AND SUPERINTENDENCE
The Contractor shall give personal attention to the faithful prosecution and completion of this contract and shall
keep on the work, during its progress, a competent project managerand any necessary assistants, all satisfactory
to Owner's Representative. The project managershall represent the Contractor in its absence and all directions
given to project managershall be binding as if given to the Contractor. It is expressly agreed that adequate
supervision by competent and reasonable representatives of the Contractor is essential to the proper performance
of the. work and lack of such supervision shall be grounds for suspending operations of the Contractor.
The work, from its commencement to completion, shall be under the exclusive charge and control of the
Contractor and all risk in connection therewith shall be borne by the Contractor.
The Owner or Owner's Representatives shall not be responsible for the acts or omissions of the Contractor, or any
subcontractors, or any of Contractor's agents or employees, or any other persons performing any of the work.
17. CONTRACTOR'S UNDERSTANDING
It is understood and agreed that the Contractor has, by careful examination, satisfied itself as to the nature and
location of the work, the confirmation of the ground, the character, quality and quantity of materials to be
encountered, the character of equipment and facilities needed preliminary to and during the prosecution of the
work, and the general and local conditions, and all other matters which in any way affect the work under the
contract documents. No oral agreement or conversation with any officer, agent, or employee of the Owner, or
Owner's Representative either before or after the execution of this contract, shall affect or modify any of the
terms or obligations herein contained. Subject to the rights of Owner as set forth in Paragraph 23 hereof, all
modifications and/or amendments to the contract documents, shall be in writing, and executed by Owner's
Representative and Contractor.
Unless otherwise specified herein, all loss, expense or damage to Contractor arising out of the nature of the work
to be done, or from the action of the elements, or from any unforeseen circumstance and the prosecution of the
work, shall be sustained and borne by the Contractor at its own cost and expense.
18. CHARACTER OF WORKERS
The Contractor agrees to employ only orderly and competent workers, skillful in the performance in the type of
work required under this contract, to do the work; and agrees that whenever the Owner's Representative shall
inform Contractor in writing that any man or men on the work, are, in Owner's Representative's sole opinion,
incompetent, unfaithful, disorderly, or otherwise unacceptable to Owner or Owner's Representative, such man or
men shall be discharged from the work and shall not again be employed on the work without the Owner's
Representative's written consent.
19. CONSTRUCTION PLANT
The Contractor shall provide all labor, tools, equipment, machinery and materials necessary in the prosecution
and completion of this contract where it is not otherwise specifically provided that Owner shall furnish same, and
it is also understood that Owner shall not be held responsible for the care, preservation, conservation, or
protection of any materials, tools, equipment or machinery or any part of the work until it is finally completed
and accepted.
The building of structures for the housing of men or equipment will be permitted only at such places as the
Owner`s Representative shall consent or direct, and the sanitary conditions of the grounds in or about such
structure shall at all times be maintained in a manner satisfactory to the Owner's Representative.
20. SANITATION
Necessary sanitary conveniences for the use of laborers on the work site, properly secluded from public
observation, shall be constructed and maintained by the Contractor in such manner and at such points as shall be
approved by the Owner's Representative and their use shall be strictly enforced.
21. OBSERVATION AND TESTING
The Owner or Owner's Representative shall have the right at all times to observe and test the work. Contractor
shall make necessary arrangements and provide proper facilities and access for such observation and testing at
any location wherever such work is in preparation or progress. Contractor shall ascertain the scope of any
observation that may be contemplated by Owner or Owner's Representative and shall give ample notice as to the
time each part of the work will be ready for such observation. Owner or Owner's Representative may reject any
such work found to be defective or not in accordance with the contract documents, regardless of the stage of its
completion or the time or place of discovery of such errors and regardless of whether Owner's Representative has
4
previously accepted the work through oversight or otherwise. If any such work should be covered without
approval or consent of the Owner, it must, if requested by Owner or Owner's Representative, be uncovered for
examination at Contractor's expense. In the event that any part of the work is being fabricated or manufactured at
a location where it is not convenient for Owner or Owner's Representative to make observations of such work or
require testing of said work, then in such event Owner or Owner's Representative may require Contractor to
furnish Owner or Owner's Representative certificates of inspection, testing or approval made by persons
competent to perform such tasks at the location where that part of the work is being manufactured or fabricated.
All such tests will be in accordance with the methods prescribed by the American Society for Testing and
Materials or such other applicable organization as may be required by law or the contract documents.
If any such work which is required to be inspected, tested, or approved is covered up without written approval or
consent of the Owner or Owner's Representative, it must, if requested by the Owner or Owner's Representative,
be uncovered for observation and testing at the Contractor's expense. The cost of all such inspections, tests and
approvals shall be borne by the Contractor unless otherwise provided herein. Any work which fails to meet the
requirements of any such tests, inspections or approvals, and any work which meets the requirements of any such
tests or approvals but does not meet the requirements of the contract documents shall be considered defective,
and shall be corrected at the Contractor's expense.
Neither observations by the Owner or Owner's Representative, nor inspections, tests, or approvals made by
Owner, Owner's Representative, or other persons authorized under the contract documents to make such
inspections, tests, or approvals shall relieve the Contractor from its obligation to perform the work in accordance
with the requirements of the contract documents.
22. DEFECTS AND THEIR REMEDIES
It is expressly agreed that if the work or any part thereof, or any material brought on the site of the work for use
in the work or selected for the same, shall be deemed by the Owner or Owner's Representative as unsuitable or
not in conformity with plans, specifications and/or contract documents, the Contractor shall, after receipt of
written notice thereof from the Owner's Representative, forthwith remove such material and rebuild or otherwise
remedy such work so that it shall be in full accordance with the contract documents. It is further agreed that any
remedial action contemplated as hereinabove set forth shall be at Contractor's expense.
23. CHANGES AND ALTERATIONS
The Contractor further agrees that the Owner may make such changes and alterations as the Owner may see fit, in
the line, grade, form dimensions, plans or materials for the work herein contemplated, or any part thereof, before
the beginning of the drafting for construction, without affecting the validity of this contract and the
accompanying bond.
If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for
a claim for damages, or anticipated profits on the work that may be dispensed with. If they increase the amount
of work, and the increased work can fairly be classified under the specifications, such increase shall be paid
according to the quantity actually done and at the unit price established for such work under this contract;
otherwise such additional work shall be paid for as provided under Extra Work. In case the Owner shall make
such changes or alterations as shall make useless any work already done or material already furnished or used in
said work, then the Owner shall recompense the Contractor for any material or labor so used, and for actual
expenses incurred in preparation for the work as originally planned.
24. EXTRA WORK
The term "extra work" as used in this contract shall be understood to mean and include all work that may be
required by the Owner or Owner's Representative to be done by the Contractor to accomplish any change,
alteration or addition to the work as shown on the pians and specifications or contract documents and not covered
by the contract, except as provided under Changes and Alterations herein.
It is agreed that the Contractor shall perform all extra work under the direction of the Owner's Representative
when presented with a written work order signed by the Owner's Representative; subject, however, to the right of
the Contractor to require written confirmation of such extra work order by the Owner. It is also agreed that the
compensation to be paid to the Contractor for performing said extra work shall be determined by the following
methods:
Method (A) - By agreed unit prices; or
Method (B) - By agreed lump sum; or
Method (C) - If neither Method (A) or Method (B) be agreed upon before the extra work is
commenced, then the Contractor shall be paid the lesser of the following: (1) actual field
cost of the extra work, plus fifteen percent (15%); or (2) the amount that would have
been charged by a reasonable and prudent Contractor as a reasonable and necessary cost
for performance of the extra work.
In the event said extra work be performed and paid for under Method (C)(1), then the provisions of this
paragraph shall apply and the "actual field cost" is hereby defined to include the cost of all workmen, such as
foremen, timekeepers, mechanics and laborers, materials, supplies, teams, trucks, rentals on machinery and
equipment, for the time actually employed or used on such extra work, plus actual transportation charges
necessarily incurred, together with all expenses incurred directly on account of such extra work, including Social
Security, Old Age Benefits, Maintenance Bonds, Public Liability and Property Damage and Workers'
Compensation and all other insurances as may be required by law or ordinances or directed by the Owner or
Owner's Representative, or by them agreed to. Owner's Representative may direct the form in which accounts of
the actual field cost shall be kept and records of these accounts shall be made available to the Owner's
Representative. The Owner's Representative may also specify in writing, before the work commences, the
method of doing the work and the type and kind of machinery and equipment to be used; otherwise, these matters
shall be determined by the Contractor. Unless otherwise agreed upon, the prices for the use of machinery and
equipment shall be determined by using 100%, unless otherwise specified, of the latest Schedule of Equipment
and Ownership Expenses adopted by the Associated General Contractors of America. Where practical, the terms
and prices for the use of machinery and equipment shall be incorporated in the written extra work order. The
fifteen percent (15%) of the actual field cost to be paid to Contractor shall cover and compensate Contractor for
its profit, overhead, general superintendence and field office expense, and all other elements of cost and expense
not embraced within the actual field cost as herein defined, save that where the Contractor's Camp or Field Office
must be maintained primarily on account of such Extra Work, then the cost to maintain and operate the same
shall be included in the "actual field cost."
No claim for extra work of any kind will be allowed unless ordered in writing by Owner's Representative. In case
any orders or instructions appear to the Contractor to involve extra work for which Contractor should receive
compensation or an adjustment in the construction time, Contractor shall prior to commencement of such extra
work, make written request to the Owner's Representative for a written order authorizing such extra work.
Should a difference of opinion arise as to what does or does not constitute extra work or as to the payment
therefore, and the Owner's Representative insists upon its performance, the Contractor shall proceed with the
work after making written request for written order and shall keep adequate and accurate account of the actual
field cost thereof, as provided under Method (C)(1). If Contractor does not notify Owner's Representative before
the commencement of any extra work, any claim for payment due to alleged extra work shall be deemed waived.
25. DISCREPANCIES AND OMISSIONS
It is further agreed that it is the intent of the contract documents that all work described in the specifications,
plans and other contract documents, is to be done for the prices quoted by the Contractor and that such price shall
6
include all appurtenances necessary to complete the work in accordance with the intent of these contract
documents as interpreted by Owner's Representative.
26. RIGHT OF OWNER TO MODIFY METHODS AND EQUIPMENT
If at any time the methods or equipment used by the Contractor are found to be inadequate to secure the quality
of work required under this contract, the Owner or Owner's Representative may order the Contractor in writing to
increase their safety or improve their character and the Contractor shall comply with such order.
27. PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC AND GENERAL INDEMNITY
The Contractor shall take out and procure a policy or policies of Workers' Compensation Insurance with an
insurance company licensed to transact business in the State of Texas, which policy shall comply with the
Workers' Compensation laws of the State of Texas. The Contractor shall at all times exercise reasonable
precaution for the safety of employees and others on or near the work and shall comply with all applicable
provisions of federal, state and municipal laws and building and construction codes. All machinery and
equipment and other physical hazards shall be guarded in accordance with the "Manual of Accident Prevention in
Construction" of Associated General Contractors of America, except where incompatible with federal, state or
municipal laws or regulations. The Contractor, its sureties and insurance carriers shall defend, indemnify and
hold harmless the Owner and all of its officers, agents and employees against any all losses, costs, damages,
expenses, liabilities, claims and/or causes of action, whether known or unknown, fixed, actual, accrued or
contingent, liquidated or unliquidated, including, but not limited to, attorneys' fees and expenses, in connection
with, incident to, related to, or arising out of, the Contractor's or any subcontractor's, agent's or employee's, in
any manner whatsoever, omission, execution and/or supervision of this contract, and the project which is the
subject matter of this contract.
The safety precautions taken shall be the sole responsibility of the Contractor, in its sole discretion as an
Independent Contractor; inclusion of this paragraph in the Agreement, as well as any notice which may be given
by the Owners or the Owner's Representative concerning omissions under this paragraph as the work progresses,
are intended as reminders to the Contractor of its duty and shall not be construed as any assumption of duty to
supervise safety precautions by either the Contractor or any of its subcontractors.
28. CONTRACTOR'S INSURANCE
The Contractor shall not commence work under this contract until he has obtained all insurance as required in the
General Conditions of the contract documents, from an underwriter authorized to do business in the State of
Texas and satisfactory to the City. Proof of coverage shall be furnished to the City and written notice of
cancellation or any material change will be provided ten (10) calendar days in advance of cancellation or change.
All policies of insurance, required herein, including policies of insurance required to be provided by Contractor
and its subcontractors, shall contain a waiver of any and all of the insurer's or payor's, in the event of self-
insurance, rights to subrogation that any such insurer or payor, in the event of self-insurance, may acquire by
virtue of payment of any loss under such insurance or self-insurance. All certificates of insurance submitted to
the City in conformity with the provisions hereof shall establish such waiver.
The Contractor shall procure and carry at its sole cost and expense through the life of this contract, insurance
protection as hereinafter specified. Coverage in excess of that specified herein also shall be acceptable. Such
insurance shall be carried with an insurance company authorized to transact business in the State of Texas and
shall cover all operations in connection with this contract, whether performed by the Contractor or a
subcontractor, or separate policies shall be provided covering the operation of each subcontractor. A certificate
of insurance specifying each and all coverages shall be submitted prior to contract execution.
7
PROOF OF COVERAGE SHALL BE FURNISHED TO THE CITY OF LUBBOCK IN THE FORINT OF
A CERTIFICATE OF INSURANCE ALONG WITH A COPY OF THE ADDITIONAL INSURED
ENDORSEMENT. THE INSURANCE CERTIFICATES FURNISHED SHALL NAME THE CITY OF
LUBBOCK AS A PRIMARY ADDITIONAL INSURED AND PROVIDE A WAIVER OF
SUBROGATION IN FAVOR OF THE CITY OF LUBBOCK AS REQUIRED BELOW, OR IN THE
ALTERNATIVE, SHALL BE ACCOMPANIED BY A STATEMENT FROM THE CONTRACTOR TO
THE EFFECT THAT NO WORK ON THIS PARTICULAR PROJECT SHALL BE SUBCONTRACTED.
IT SHALL BE THE CONTRACTOR'S RESPONSIBILITY TO PROVIDE TO THE OWNER ALL
PROOF OF COVERAGE INSURANCE DOCUMENTS INCLUDING WORKERS COMPENSATION
COVERAGE FOR EACH SUBCONTRACTOR.
A. General Liability Insurance (Primary Additional Insured and Waiver of Subrogation required)
The contractor shall have Comprehensive General Liability Insurance with limits of $1,000,000
Combined Single Limit in the aggregate and per occurrence to include:
Premises and Operations
Explosion & Collapse Hazard
Underground Damage Hazard
Products & Completed Operations Hazard
Contractual Liability
Independent Contractors Coverage
Personal Injury
Advertising Injury
B. Omitted.
C. Comprehensive Automobile Liability Insurance (Primary Additional Insured and Waiver of Subrogation
Required)
The Contractor shall have Comprehensive Automobile Liability Insurance with limits of not less than
$500.000; Bodily Injury/Property Damage, $500,000 Combined Single Limit, to include all owned and
non -owned cars including: Employers Non -ownership Liability Hired and Non -owned Vehicles. The
City is to be named as a primary additional insured on this policy for this specific job and copy of the
endorsement doing so is to be attached to the Certificate of Insurance.
D. Builder's Risk Insurance/Installation Floater Insurance.
The Contractor shall obtain a Builder's Risk policy in the amount of 100% of the total contract price
(100% of potential loss) naming the City of Lubbock as insured.
E. Omitted.
F. Worker's Compensation and Employers Liability Insurance (Waiver of Subrogation required)
Worker's Compensation Insurance covering all employees whether employed by the Contractor or any
Subcontractor on the job with Employers Liability of at least $500,000.
1. Definitions:
8
Certificate of coverage ("certificate") - A copy of a certificate of insurance, a certificate of
authority to self -insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-
82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for
the person's or entity's employees providing services on a project, for the duration of the project.
Duration of the project - includes the time from the beginning of the work on the project until the
Contractor's/person's work on the project has been completed and accepted by the governmental
entity.
Persons providing services on the project ("subcontractor" in Section 406.096, Texas Labor
Code) - includes all persons or entities performing all or part of the services the Contractor has
undertaken to perform on the project, regardless of whether that person contracted directly with
the Contractor and regardless of whether that person has employees. This includes, without
limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner -
operators, employees of any such entity, or employees of any entity which furnishes persons to
provide services on the project. "Services" include, without limitation, providing, hauling, or
delivering equipment or materials, or providing labor, transportation, or other service related to a
project. "Services" does not include activities unrelated to the project, such as food/beverage
vendors, office supply deliveries, and delivery of portable toilets.
2. The Contractor shall provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets the statutory requirements
of Texas Labor Code, Section 401.011(44) for all employees of the contractor providing services
on the project, for the duration of the project.
The Contractor must provide a certificate of coverage to the governmental entity prior to being
awarded the contract.
4. If the coverage period shown on the Contractor's current certificate of coverage ends during the
duration of the project, the Contractor must, prior to the end of the coverage period, file a new
certificate of coverage with the governmental entity showing that coverage has been extended.
5. The Contractor shall obtain from each person providing services on the project, and provide to
the governmental entity:
(a) a certificate of coverage, prior to that person beginning work on the project, so the
governmental entity will have on file certificates of coverage showing coverage for all
persons providing services on the project, and
(b) no later than seven days after receipt by the Contractor, a new certificate of coverage
showing extension of coverage, if the coverage period shown on the current certificate of
coverage ends during the duration of the project.
The Contractor shall retain all required certificates of coverage for the duration of the project and
for one year thereafter.
7. The Contractor shall notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the Contractor knew or should have known, of any change that
materially affects the provision of coverage of any person providing services on the project.
8. The Contractor shall post on each project site a notice, in the text, form and manner prescribed
by the Texas Workers' Compensation Commission, informing all persons providing services on
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the project that they are required to be covered, and stating how a person may verify coverage
and report lack of coverage.
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 meets the statutory requirements of Texas
Labor Code, Section 401.011(44) for all of its employees providing services on the
project, for the duration of the project;
(b) provide to the Contractor, prior to that person beginning work on the project, a certificate
of coverage showing that coverage is being provided for all employees of the person
providing services on the project, for the duration of the project;
(c) provide the Contractor, prior to the end of the coverage period, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the current
certificate of coverage ends during the duration of the project;
(d) obtain from each other person with whom it contracts, and provide to the Contractor:
(1) a certificate of coverage, prior to the other person beginning work on the project;
and
(2) a new certificate of coverage showing extension of coverage, prior to the end of
the coverage period, if the coverage period shown on the current certificate of
coverage ends during the duration of the project;
(e) retain all required certificates of coverage on file for the duration of the project and for
one year thereafter;
(f) notify the governmental entity in writing by certified mail or personal delivery, within 10
days after the person knew or should have known, of any change that materially affects
the provision of coverage of any person providing services on the project; and
(g) contractually require each person with whom it contracts to perform as required by
paragraphs (a) - (g), with the certificates of coverage to be provided to the person for
whom they are providing services.
10. By signing this contract or providing or causing to be provided a certificate of coverage, the
Contractor is representing to the governmental entity that all employees of the Contractor who
will provide services on the project will be covered by worker's compensation coverage for the
duration of the project, that the coverage will be based on proper reporting of classification codes
and payroll amounts, and that all coverage agreements will be filed with the appropriate
insurance carrier or, in the case of a self-insured, with the commission's Division of Self -
Insurance Regulation. Providing false or misleading information may subject the Contractor to
administrative penalties, criminal penalties, civil penalties, or other civil actions.
11. The Contractor's failure to comply with any of these provisions is a breach of contract by the
Contractor which entitles the governmental entity to declare the contract void if the Contractor
does not remedy the breach within ten days after receipt of notice of breach from the
governmental entity.
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G. Proof of Coverage
Before work on this contract is commenced, each Contractor and subcontractor shall submit to the Owner
for approval five Certificates of Insurance covering each insurance policy carried and offered as evidence
of compliance with the above insurance requirements, signed by an authorized representative of the
insurance company setting forth:
(1) The name and address of the insured.
(2) The location of the operations to which the insurance applies.
(3) The name of the policy and type or types of insurance in force thereunder on the date borne by
such certificate.
(4) The expiration date of the policy and the limit or limits of liability thereunder on the date borne
by such certificate.
(5) A provision that the policy may be canceled only by mailing written notice to the named insured
at the address shown in the contract.
(6) A provision that written notice shall be given to the City ten days prior to any change in or
cancellation of the policies shown on the certificate.
(7) The certificate or certificates shall be on the form (or identical copies thereof) contained in the
job specifications. No substitute of nor amendment thereto will be acceptable.
(8) If policy limits are paid, new policy must be secured for new coverage to complete project.
(4) A Contractor shall:
(a) provide coverage for its employees providing services on a project, for the duration of
the project based on proper reporting of classification codes and payroll amounts and
filling of any coverage agreements;
(b) provide a certificate of coverage showing workers' compensation coverage to the
governmental entity prior to beginning work on the project;
(c) provide the governmental entity, prior to the end of the coverage period, a new certificate
of coverage showing extension of coverage, if the coverage period shown on the
Contractor's current certificate of coverage ends during the duration of the project;
(d) obtain from each person providing services on a project, and provide to the governmental
entity:
(i) a certificate of coverage, prior to that person beginning work on the project, so
the governmental entity will have on file certificates of coverage showing
coverage for all persons providing services on the project; and
(ii) no later than seven days after receipt by the Contractor, a new certificate of
coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
(e) retain all required certificates of coverage on file for the duration of the project and for
one year thereafter;
(f) notify the governmental entity in writing by certified mail or personal delivery, within 10
days after the Contractor knew or should have known, of any change that materially
affects the provision of coverage of any person providing services on the project;
(g) post a notice on each project site informing all persons providing services on the project
that they are required to be covered, and stating how a person may verify current
coverage and report failure to provide coverage. This notice does not satisfy other
posting requirements imposed by the Texas Worker's Compensation Act or other
commission rules. This notice must be printed with a title in at least 30 point bold type
and text in at least 19 point normal type, and shall be in both English and Spanish and
any other language common to the worker population. The text for the notices shall be
the following text provided by the commission on the sample notice, without any
additional words or changes:
REQUIRED WORKERS' COMPENSATION COVERAGE
"The law requires that each person working on this site or providing services related
to this construction project must be covered by workers' compensation insurance.
This includes persons providing, hauling, or delivering equipment or materials, or
providing labor or transportation or other service related to the project, regardless of
the identity of their employer or status as an employee, "
"Call the Texas Workers' Compensation Commission at 8001372-7713 or 5121804-
4000 (http.11www.twcc.state. tr-us/tweccontacts.html) to receive information of the
legal requirements for coverage, to verify whether your employer has provided the
required coverage, or to report an employer's failure to provide coverage; " and
(h) contractually require each person with whom it contracts to provide services on a project,
to:
(i) provide coverage based on proper reporting of classification codes and payroll
amounts and filing of any coverage agreements for all of its employees providing
services on the project, for the duration of the project;
(ii) provide a certificate of coverage to the Contractor prior to that person beginning
work on the project;
(iii) include in all contracts to provide services on the project the following language:
"By signing this contract or providing or causing to be
provided a certificate of coverage, the person signing this
contract is representing to the governmental entity that all
employees of the person signing this contract who will
provide services on the project will be covered by workers'
compensation coverage for the duration of the project, that
the Coverage will be based on proper reprinting of
classification codes and payroll amounts, and that all
coverage agreements will be filed with the appropriate
insurance carrier or, in the case of a self-insured, with the
commission's Division of Self=Insurance Regulation.
Providing false or misleading information may subject the
Contractor to administrative penalties, criminal penalties,
civil penalties, or other civil actions.";
(iv) provide the Contractor, prior to the end of the coverage period, a new certificate
of coverage showing extension of coverage, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
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(v) obtain from each other person with whom it contracts, and provide to the
Contractor:
(1) a certificate of coverage, prior to the other person beginning work on the
project; and
(2) prior to the end of the coverage period, a new certificate of coverage
showing extension of the coverage period, if the coverage period shown
on the current certificate of coverage ends during the duration of the
project;
(vi) retain all required certificates of coverage on file for the duration of the project
and for one year thereafter;
(vii) notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the person knew or should have known, of any change that
materially affects the provision of coverage of any person providing services on
the project; and
(viii) contractually require each other person with whom it contracts, to perform as
required by paragraphs (i) -(viii), with the certificate of coverage to be provided
to the person for whom they are providing services.
29. DISABLED EMPLOYEES
Contractors having more than fifteen (15) employees agree to comply with the Americans with Disabilities Act of
1990, and agree not to discriminate against a qualified individual with a disability because of the disability of
such individual in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of employment.
30. PROTECTION AGAINST CLAIMS OF SUBCONTRACTORS LABORERS MATERIALMEN AND
FURNISHERS OF MACHINERY, EQUIPMENT AND SUPPLIES
Without limiting, in any way, manner or form, the indemnity provided by Contractor in paragraph 27 hereof, the
Contractor agrees that it will indemnify and save the Owner and all of its officers, agents and employees,
harmless against any and all claims, liabilities, losses, damages, expenses and causes of action arising out of, in
any way, manner or form, the demands of subcontractors, laborers, workmen, mechanics, materialmen and
furnishers of machinery and parts thereof, equipment, power tools, and supplies, incurred in the performance of
this contract and the project which is the subject matter of this contract. When Owner so desires, the Contractor
shall furnish satisfactory evidence that all obligations of the nature hereinabove designated have been paid,
discharged or waived.
31. PROTECTION AGAINST ROYALTIES OR PATENT INVENTION
The Contractor shall pay all royalties and license fees, and shall provide for the use of any design, device,
material or process covered by letters patent or copyright by suitable legal agreement with the Patentee or owner
thereof. Without limiting, in any way, manner or form, the indemnity provided by Contractor in paragraph 27
hereof, the Contractor shall defend all suits or claims for infringement of any patent or copyrights and shall
indemnify and save the Owner, and all of its officers, agents and employees harmless from any loss on account
thereof, except that Owner shall defend all such suits and claims and shall be responsible for all such loss when a
particular design, device, material or process or the product of a particular manufacturer or manufacturers is
specified or required in these contract documents by Owner; provided, however, if choice of alternate design,
device, material or process is allowed to the Contractor, then Contractor shall indemnify and save Owner, and all
of its officers, agents and employees harmless from any loss on account thereof. Notwithstanding anything
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herein to the contrary, if the material or process specified or required by Owner and/or this contract is an
infringement, the Contractor shall be responsible for such loss unless it gives written notice of such infringement
to the Owner's Representative prior to the final execution of this contract.
32. LAWS AND ORDINANCES
The Contractor shall at all times observe and comply with all federal, state and local laws, ordinances and
regulations, which in any manner affect the contract or the work, and without limiting, in any way, manner or
form, the indemnity provided by Contractor in paragraph 27 hereof, Contractor shall indemnify and save
harmless the Owner, and all of its officers, agents, and employees against any claims arising from the violation of
any such laws, ordinances, and regulations, whether by the Contractor, its employees, or subcontractors. If the
Contractor observes that the plans and specifications are at variance therewith, he shall notify the Owner's
Representative in writing and any necessary changes shall be adjusted as provided in the contract for changes in
the work. In the absence of timely written notification to Owner's Representative of such variance or variances
within said time, any objection and/or assertion that the plans and specifications are at variance with any federal,
state or local laws, ordinances or regulations shall be deemed waived. If the Contractor, its employees or
subcontractors perform any work contrary to such laws, ordinances, rules and regulations, and without such
notice to the Owner's Representative, Contractor shall bear all costs arising therefrom.
The Owner is a municipal corporation of the State of Texas and the law from which it derives its powers, insofar
as the same regulates the objects for which, or the manner in which, or the conditions under which the Owner
may enter into contracts, shall be controlling, and shall be considered as part of this contract to the same effect as
though embodied herein.
33. SUBCONTRACTING
The Contractor agrees that it will retain personal control and will give its personal attention to the fulfillment of
this contract. The Contractor further agrees that subletting of any portion or feature of the work, or materials
required in the performance of this contract, shall not relieve the Contractor from its full obligations to the
Owner, as provided by the contract documents.
34. TIME FOR SUBSTANTIAL COMPLETION AND LIQUIDATED DAMAGES
It is hereby understood and mutually agreed by and between the Contractor and the Owner, that the date of
beginning and time for completion as specified in the contract documents, of work to be done hereunder are
essential conditions of this contract} and it is further mutually understood and agreed that the work embraced in
this contract shall be commenced as provided in the contract documents.
If the Contractor should neglect, fail, or refuse to substantially complete the work within the time herein
specified, then the Contractor does hereby agree as part of the consideration for the awarding of this contract, the
Owner may withhold permanently from Contractor's total compensation, the sum of $25.00 PER DAY, not as a
penalty, but as liquidated damages for the breach of the contract as herein set forth for each and every working
day that the Contractor shall be in default after the time stipulated for substantially completing the work.
It is expressly understood and agreed, by and between Contractor and the Owner, that the time for the substantial
completion of the work described herein is reasonable time for the completion of the same, taking into
consideration the average climatic range and conditions and usual industrial conditions prevailing in this locality.
The amount is fixed and agreed upon by and between the Contractor and the Owner because the actual damages
the Owner would sustain in such event would be difficult and/or impossible to estimate, however, the amount
agreed upon herein is a reasonable forecast of the amount necessary to render just compensation to Owner, and is
expressly agreed to be not disproportionate to actual damages as measured at time of breach.
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IT IS FURTHER AGREED AND UNDERSTOOD BETWEEN THE CONTRACTOR AND OWNER THAT
TIME IS OF THE ESSENCE OF THIS CONTRACT.
35. TIME AND ORDER OF COMPLETION
It is the meaning and intent of this contract, unless otherwise herein specifically provided, that the Contractor
shall be allowed to prosecute its work at such time and sessions, in such order of precedence, and in such manner
as shall be most conductive to economy of construction; provided, however, that the order and time of
prosecution shall be such that the work shall be substantially completed as a whole and in part, in accordance
with this contract, the plans and specifications, and within the time of completion designated in the contract;
provided, also, that when the Owner is having other work done, either by contract or by its own force, the
Owner's Representative may direct the time and manner of constructing work done under this contract so that
conflicts will be avoided and the construction of the various works being done for the Owner shall be
harmonised.
The Contractor shall submit, at such times as may reasonably be requested by the Owner's Representative,
schedules which shall show the order in which the Contractor intends to carry on the work, with dates at which
the Contractor will start the several parts of the work and estimated dates of completion of the several parts_
36. TIME OF PERFORMANCE
The Contractor agrees that it has executed this contract in full recognition of the time required for the completion
of this project, taking into consideration the average climatic range and industrial conditions prevailing in this
locality, and has considered the liquidated damage provisions of paragraph 34 hereinabove set forth and
expressly agrees that it shall not be entitled to, nor will it request, an extension of time on this contract, except
when its work has been delayed by an act or neglect of the Owner, Owner's Representative, employees of the
Owner or other contractors employed by the Owner, or by changes ordered in the work, or by strike, walkouts,
acts of God or the public enemy, fire or flood. Any request for extension shall be in writing with the written
request for same setting forth all justifications, in detail, for the request, and submitted to Owner's Representative
within twenty (20) calendar days of the occurrence of the event causing said delay. A failure by Owner's
Representative to affirmatively grant the extension no later than twenty (20) calendar days of written submission
by Contractor shall be deemed an approval, and final. Further, in the absence of timely written notification of
such delay and request for extension, as provided herein, any request for extension by Contractor shall be deemed
waived.
37. HINDRANCE AND DELAYS
In executing the contract, the Contractor agrees that in undertaking to complete the work within the time herein
fixed, Contractor has taken into consideration and made allowances for all hindrances and delays incident to such
work, whether growing out of delays due to unusual and unanticipated circumstances, difficulties or delays in
securing material or workmen, or any other cause or occurrence. No charge shall be made by the Contractor for
hindrance or delays from any cause during the progress of any part of the work embraced in this contract except
where the work is stopped by order of the Owner or Owner's Representative for the Owner's convenience, in
which event, such expense as in the sole judgment of the Owner's Representative that is caused by such stoppage
shall be paid by Owner to Contractor.
38. QUANTITIES AND MEASUREMENTS
No extra or customary measurements of any kind will be allowed, but the actual measured or computed length,
area, solid contents, number and weight only shall be considered, unless otherwise specifically provided. In the
event this contract is let on a unit price basis, then Owner and Contractor agree that this contract, including the
specifications, plans and other contract documents are intended to show clearly all work to be done and material
15
to be furnished hereunder. Where the estimated quantities are shown, and only when same are expressly stated to
be estimates, for the various classes of work to be done and material to be furnished under this contract, they are
approximate and are to be used only as a basis for estimating the probable cost of the work. In the event the
amount of work to be done and materials to be furnished are expressly stated to be estimated, and only when
same are expressly stated to be estimated, it is understood and agreed that the actual amount of work to be done
and the materials to be furnished under this contract may differ somewhat from these estimates, and that where
the basis for payment under this contract is the unit price method, payment shall be for the actual amount of work
done and materials furnished on the project.
39. PROTECTION OF ADJOH-LING PROPERTY
The Contractor shall take proper means to protect the adjacent or adjoining property or properties in any way
encountered, which may be injured or seriously affected by any process of construction to be undertaken under
this agreement, from any damage or injury by reason of said process of construction; and Contractor shall be
liable for any and all claims for such damage on account of his failure to fully protect all adjacent property.
Without limiting, in any way, manner and form, the indemnity provided by Contractor in paragraph 27 hereof, the
Contractor agrees to indemnify, save and hold harmless the Owner, and any of its officers, agents and employees,
against any and all claims or damages due to any injury to any adjacent or adjoining property, related to, arising
from or growing out of the performance of this contract.
40. PRICE FOR WORK
In consideration of the furnishing of all necessary labor, equipment and material and the completion of all work
by the Contractor, and on the delivery of all materials embraced in this contract in full conformity with the
specifications and stipulations herein contained, the Owner agrees to pay the Contractor the price set forth in the
contract documents, which have been made a part of this contract, and the Contractor hereby agrees to receive
such price in full for furnishing all materials and all labor required for the aforesaid work, also, for all expenses
incurred by Contractor and for well and truly performing the same and the whole thereof in the manner and
according to this agreement, the attached specifications, plans, contract documents and requirements of Owner's
Representative.
41. PAYMENTS
No payments made or certificates given shall be considered as conclusive evidence of the performance of the
contract, either wholly or in part, nor shall any certificate or payment be considered as acceptance of defective
work. Contractor shall at any time requested during the progress of the work furnish the Owner or Owner's
Representative with a verifying certificate showing the Contractor's total outstanding indebtedness in connection
with the work. Before final payment is made, Contractor shall satisfy Owner, by affidavit or otherwise, that there
are no outstanding liens against Owner's premises by reason of any work under the contract. Acceptance by
Contractor of final payment of the contract price shall constitute a waiver of all claims against Owner, Owner's
agents and employees, which have not theretofore been timely filed as provided in this contract.
42. PARTIAL PAYMENTS
On or before the tenth day of each month, the Contractor shall submit to Owner's Representative an application
for partial payment or, if the Contractor does not submit such application, the Owner's Representative shall
determine the amount to be partially paid. Owner's Representative shall review said application for partial
payment if submitted, and the progress of the work made by the Contractor and if found to be in order, shall
prepare a certificate for partial payment showing as completely as practical the total value of the work done by
the Contractor up to and including the last day of the preceding month. The determination of the partial payment
by the Owner's Representative shall be in accordance with Paragraph 14 hereof.
16
Except as otherwise provided herein, the Owner shall then pay the Contractor on or before the fifteenth day of
the current month the total amount of the Owner's Representative's Certificate of Partial Payment.
Any partial payment made hereunder shall not constitute a waiver by the Owner of any and all other rights to
enforce the express terms of the contract documents, and all remedies provided therein, as to any and all work
performed, to be performed and/or materials delivered hereunder, including, but limited to, work to which said
partial payment is attributable.
43. SUBSTANTIAL COMPLETION
Contractor shall give Owner's Representative written notice of substantial completion. Within thirty-one (3 1)
working days after the Contractor has given the Owner's Representative written notice that the work has been
substantially completed, the Owner's Representative and/or the Owner shall inspect the work and within said
time, if the work be found to be substantially completed in accordance with the contract documents, the Owner's
Representative shall issue to the Owner and Contractor a certificate of substantial completion. Notwithstanding
the issuance of a certificate of substantial completion, Contractor shall proceed with diligence to finally complete
the work within the time provided in this contract.
44. FINAL COMPLETION AND PAYMENT
The Contractor shall give written notice to Owner's Representative of final completion. Upon written notice of
final completion, the Owner's Representative shall proceed to make final measurement to determine whether final
completion has occurred. If the Owner's Representative determines final completion has occurred, Owner's
Representative shall so certify to the Owner. Upon certification by Owner's Representative of final completion,
Owner shall pay to the Contractor on or before the 31 st working day after the date of certification of final
completion, the balance due Contractor under the terms of this agreement. Neither the certification of final
completion nor the final payment, nor any provisions in the contract documents shall relieve the Contractor of the
obligation for fulfillment of any warranty which may be required in the contract documents and/or any warranty
or warranties implied by law or otherwise.
45. CORRECTION OF WORD
Contractor shall promptly remove from Owner's premises all materials condemned by the Owner's Representative
on account of failure to conform to the contract documents, whether actually incorporated in the work or not, and
Contractor shall at its own expense promptly replace such condemned materials with other materials conforming
to the requirements of the contract documents. Contractor shall also bear the expense of restoring all work of
other contractors damaged by any such removal or replacement. If Contractor does not remove and replace any
such condemned work within a reasonable time after a written notice by the Owner or the Owner's
Representative, Owner may remove and replace it at Contractor's expense.
Neither the final payment, nor certification of final completion or substantial completion, nor any provision in the
contract documents shall relieve the Contractor of responsibility for faulty materials or workmanship, and
Contractor shall remedy any defects due thereto and pay for any damage to other work resulting therefrom, which
shall appear within a period of one (1) year from the date of certification of final completion by Owner's
Representative.
46. PAYMENT WITHHELD
The Owner or Owner's Representative may, on account of subsequently discovered evidence, withhold or nullify
the whole or part of any certification to such extent as may be necessary to protect itself from loss on account of.
(a) Defective work not remedied and/or work not performed.
H
(b) Claims filed or reasonable evidence indicating possible filing of claims.
(c) Damage to another contractor.
When the above grounds are removed, or the Contractor provides a surety bond satisfactory to the Owner, in the
amount withheld, payment shall be made for amounts withheld because of them.
47. CLAIM OR DISPUTE
It is further agreed by both parties hereto that all questions of dispute or adjustment presented by the Contractor
shall be in writing and filed with the Owner's Representative within fifteen (15) calendar days after the Owner's
Representative has given any direction, order or instruction to which the Contractor desires to take exception.
Timely written notice of dispute as provided in this contract of any decision by Owner's Representative or Owner
shall be a condition precedent to the bringing and/or assertion of any action or claim by Contractor of any right
under this Contract. If the matters set forth in the notice of dispute are not granted or otherwise responded to by
Owner's Representative within fifteen (15) calendar days of receipt of notice of dispute by Owner's
Representative, said objections shall be deemed denied. Any decision by the Owner's Representative, or deemed
denial by the Owner's Representative, shall be final and conclusive in the absence of fraud. It is further agreed
that the acceptance by the Contractor of the final payment shall be a bar to any and all claims of the Contractor,
and constitute a waiver of the right to assert any claim against Owner, Owner's agents and employees and
Owner's Representative, by Contractor.
48. NON-COMPLIANCE AND/OR ABANDONMENT BY CONTRACTOR
In case the Contractor should (1) abandon and fail or refuse to resume work within fifteen (15) calendar days
after written notification from the Owner or the Owners Representative, or (2) if the Contractor fails to comply
with any reasonable written orders of the Owner's Representative, when such orders are consistent with this
contract, then the Surety on the bond shall be notified in writing and directed to complete the work and a copy of
said notice shall be delivered to the Contractor. In the event a bond is not required by law, or otherwise obtained
by the Contractor, no further notice of such non-compliance to Contractor shall be required.
After receiving said notice of abandonment or non-compliance , 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 the contract for work, may be held for use on the work by the Owner or the Surety of the
Contractor, 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 for
under paragraph 24 of this contract); 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.
In the event the Contractor, or Surety, whichever is applicable, should fail to commence compliance with the
notice hereinbefore provided within fifteen (15) calendar days after service of such notice, and/or shall fail to
proceed with diligence to complete the project as contemplated and in compliance with all terms and provisions
of the contract documents, then the Owner may exercise any and all remedies available to it pursuant to law,
contract, equity or otherwise, including, but not limited to, providing for completion of the work in either of the
following elective manners:
(a) The Owner may employ such force of men and use of machinery, equipment, tools, materials and
supplies as said Owner may deem necessary to complete the work and charge the expense of such labor,
machinery, equipment, tools, materials and supplies to said Contractor, and the expense so charged shall
be deducted and paid by the Owner out of such moneys as may be due, or that may thereafter at any time
become due to the Contractor under and by virtue of this Agreement_ In case such expense is less than
the sum which would have been payable under this contract, if the same had been completed by the
Contractor, then said Contractor shall receive the difference. In case such expense is greater than the
18
sum which would have been payable under this contract, if the same had been completed by said
Contractor, then the Contractor and/or its Surety shall pay the amount of such excess to the Owner; or
(b) The Owner, under sealed bids, after notice published as required by law, at least twice in a newspaper
having a general circulation in the County of location of the work, may let the contract for the completion
of the work under substantially the same terms and conditions which are provided in this contract. In
case of any increase in cost to the Owner under the new contract as compared to what would have been
the cost under this contract, such increase shall be charged to the Contractor and the Surety shall be and
remain bound therefore. Should the cost to complete any such new contract prove to be less than that
which would have been the cost to complete the work under this contract, the Contractor or his Surety
shall be credited therewith.
In the event the Owner's Representative elects to complete the work, as described above, when the work shall
have been finally completed, the Contractor and his Surety shall be so notified and certification of completion as
provided in paragraph 44 hereinabove set forth, shall be issued. A complete itemized statement of the contract
accounts, certified to by Owner's Representative as being correct shall then be prepared and delivered to
Contractor and his Surety, if applicable, whereon the Contractor or his Surety, or the Owner as the case may be,
shall pay the balance due as reflected by said statement within 30 days after the date of certification of
completion.
In the event the statement of accounts shows that the cost to complete the work is less than that which would
have been the cost to the Owner had the work been completed by the Contractor under the terms of this contract,
or when the Contractor and/or his Surety, if applicable, 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 and/or his Surety, if applicable. Should the cost to complete the work exceed the contract
price, and the Contractor and/or his Surety, if applicable, 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 thereof, together with an itemized list of such equipment and materials shall be mailed to the
Contractor and his Surety, if applicable, at the respective addresses designated in this contract; provided,
however, that actual written notice given in any manner will satisfy this condition. After mailing, or other giving
of such notice, such property shall be held at the risk of the Contractor and his Surety, if applicable, subject only
to the duty of the Owner to exercise ordinary care to protect such property. After fifteen (15) calendar days from
the date of said notice the Owner may sell such machinery, equipment, tools, materials or supplies and apply the
net sum derived from such sale to the credit of the Contractor and his Surety, if applicable. 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 that remain on the jobsite and belong to persons other
than the Contractor or his Surety, if applicable, to their proper owners.
The remedies provided to Owner by law, equity, contract, or otherwise, shall be cumulative, to the extent
permitted by law. It is expressly agreed and understood that the exercise by Owner of the remedies provided in
this paragraph shall not constitute an election of remedies on. the part of Owner, and Owner, irrespective of its
exercise of remedies hereunder, shall be entitled to exercise concurrently or otherwise, any and all other remedies
available to it, by law, equity, contract or otherwise, including but not limited to, liquidated damages, as provided
in paragraph 34, hereinabove set forth.
49. LIMITATION ON CONTRACTOR'S REMEDY
The remedies of Contractor hereunder shall be limited to, and Owner shall be liable only for, work actually
performed by Contractor and/or its subcontractors as set forth in the contract documents, and Owner shall not be
liable for any consequential, punitive or indirect loss or damage that Contractor may suffer in connection with the
project which is the subject matter of this contract.
19
50. BONDS
The Contractor is required to furnish a performance bond in accordance with Chapter 2253, Government Code, in
the amount of 100% of the total contract price in the event that said contract price exceeds $100,000 and the
Contractor is required to furnish a payment bond in accordance with Chapter 2253, Government Code, in the
amount of 100% of the total contract price in the event that said contract price exceeds $25,000. All bonds shall
be submitted on forms supplied by the Owner, and executed by an approved Surety Company authorized to do
business in the State of Texas. It is further agreed that this contract shall not be in effect until such bonds are so
furnished.
51. SPECIAL CONDITIONS
In the event special conditions are contained herein as part of the contract documents and said special conditions
conflict with any of the general conditions contained in this contract, then in such event the special conditions
shall control.
52. LOSS OR EXPENSE DUE TO UNUSUAL OR UNANTICIPATED CIRCUMSTANCES
Unless otherwise specified herein, all loss, expense or damage to the Contractor arising out of the nature of the
work to be done, or from the action of the elements, or from any unforeseen circumstance or from unusual
obstructions or difficulties, naturally occurring, man made or otherwise, which may be encountered in the
prosecution of the work, shall be sustained and borne by the Contractor at his own cost and expense.
53. INDEPENDENT CONTRACTOR
Contractor is, and shall remain, an independent contractor with full, complete and exclusive power and authority
to direct, supervise, and control its own employees and to determine the method of the performance of the work
covered hereby. The fact that the Owner or Owner's Representative shall have the right to observe Contractor's
work during Contractor's performance and to carry out the other prerogatives which are expressly reserved to and
vested in the Owner or Owner's Representative hereunder, is not intended to and shall not at any time change or
effect the status of the Contractor as an independent contractor with respect to either the Owner or Owner's
Representative or to the Contractor's own employees or to any other person, firm, or corporation.
54. CLEANING UP
The Contractor shall at all times keep the premises free from accumulation of debris caused by the work, and at
the completion of the work Contractor shall remove all such debris and also its tools, scaffolding, and surplus
materials and shall leave the work room clean or its equivalent. Except as otherwise provided herein or in the
Contract documents, the work shall be left in good order and condition. In case of dispute Owner may remove
the debris and charge the cost to the Contractor.
55. HAZARDOUS SUBSTANCES AND ASBESTOS
Hazardous Substances (herein so called), as defined in the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C.S. §9601(14)) and the regulations promulgated thereunder, as same
may be amended from time to time, hydrocarbons or other petroleum products or byproducts and/or asbestos, in
any form, shall not (i) be utilized, in any way, manner or form, in the construction of, or incorporation into, the
Project; or (ii) be brought upon, placed, or located, by any party, on the Project site, or any other property of the
City, without the written consent of the Owner's Representative. If Contractor believes that the utilization of a
Hazardous Substance, hydrocarbons or other petroleum products or byproducts and/or asbestos is necessary in
the construction of the Project, or that it is necessary to place and/or otherwise locate upon the site of the Project
or other property of the City, a Hazardous Substance, hydrocarbons or other petroleum products or byproducts
20
and/or asbestos, Contractor shall notify the Owner's Representative, and request consent therefrom, at least
twenty (20) days prior to such action. Owner's Representative may grant or deny the request of Contractor and
provide whatever requirements such consent, if granted, is conditioned upon, in its sole and absolute discretion.
If the request of Contractor is not granted, or otherwise not responded to, by Owner's Representative within five
(5) days of the receipt of said request, said request shall be deemed to be denied.
In the event Owner's Representative shall consent to the request of Contractor, Contractor shall be responsible
for ensuring that all personnel involved in the Project are (i) trained for the level of expertise required for proper
performance of the actions contemplated by this Contract and, in particular, in all aspects of handling, storage,
disposal and exposure of Hazardous Substances, hydrocarbons or other petroleum products or byproducts and/or
asbestos; and (ii) are provided and utilize all protective equipment, including without limitation, personal
protective gear, necessary to provide protection from exposure to Hazardous Substances, hydrocarbons or other
petroleum products or byproducts and/or asbestos.
41
RE: RESOLUTION NO. 2002-R,0483, NOVEMBER 14, 2002
Craft
Acoustical Ceiling Installer
Air Conditioner Installer
Air Conditioner Installer -Helper
Asbestos Worker
Asbestos Supervisor
Bricklayer
Bricklayer -Helper
Carpenter
Carpenter -Helper
Cement Finisher
Drywall Hanger
Electrician
Electrician -Helper
Equipment Operator -Heavy
Equipment Operator -Light
Fire Sprinkler Fitter -Journey
Fire Sprinkler Fitter -Apprentice
Floor Installer
Glazier
Insulator-PipingBoiler
Insulator -Helper
Iron Worker
Laborer -General
Mortar Mixer
Painter
Plumber
Plumber -Helper
Roofer
Roofer -Helper
Sheet Metal Worker
Sheet Metal Worker -Helper
Welder -Certified
EXHIBIT A
City of Lubbock
Building Construction Trades
Prevailing Rates
22
Hourly Rate
11.50
12.00
7.50
9.00
12.50
12.50
7.00
11.00
7.00
9.00
11.00
15.00
8.00
10.00
9.00
18.00
10.00
9.50
10.50
10.50
7.00
11.00
6.00
6.00
9.50
12.50
7.00
9.00
7.00
10.00
7.00
11.00
Craft
Asphalt Heaterman
Asphalt Shoveler
Concrete Finisher
Concrete Finisher -Helper
Electrical Repairer -Equipment
Flagger
Form Setter
Form Setter -Helper
Laborer -General
Laborer -Utility
Mechanic
Mechanic -Helper
Power' Equipment Operators
Asphalt Paving Machine
Bulldozer
Concrete Paving Machine
Front End Loader
Heavy Equipment Operator
Light Equipment Operator
Motor Grader Operator
Roller
Scraper
Tractor -Trailer
Truck Driver -Heavy
Truck Driver -Light
EXHIBIT B
Paving and Highway Construction
Prevailing Wage Rates
23
Hourly Rate
9.00
7.50
9.00
7.50
12.50
6.50
8.00
6.50
6.00
6.75
9.00
7.00
9.00
9.00
9.00
9.00
9.00
8.00
10.25
7.00
7.50
8.50
8.00
7.00
EXHIBIT C
Prevailing Wage Rates
Overtime Rate
The rate for overtime (in excess of forty hours per week) shall be as required by the Fair Labor Standards Act.
EXHIBIT D
Prevailing Wage Rates
Legal Holiday Rate
The rate for legal holidays shall be as required by the Fair Labor Standards Act.
24
GRANIT BROW
DIVISION OF COLD SPRING GRANITE COMPANY
PROPOSAL& CONTRACT
DATE: 19 Jan 2006
ATTN: Bob Gcodwin
COMPANY: City of Lubbock
PO Box 2000
Lubbock, TX 79457
= ==L_= E—=FF=:�Ir--,iC-
09 euarriers and tabricaturs of building stone and memorializa5on pmduds.
202 S. 3rd Avenue, Cold Spring, MN 56320 USA
Phone: 800-328-5040 Fax 320-685-5008
PROJECT:
LOCATION:
JOB NUMBER,-
PHONE:
UMBER:PHONE:
FAX:
Mausoleum
Lubbock, TX
806-767-2271
Unless revoked earlier in accordance with the aftached Terms & Conditions, this quote expires after 30 days.
GRANIT BRONZ (Hereinafter "Seller") of Cold Spring, MN, proposes to furnish materials as described below.
The following bid documents, drawings & specifications will be referred to as Contract Documents and shall apply insofar as these documents do not conflict
with the terms and conditions of this contract.
GRANITE MAUSOLEUM UNITS: DESIGN
Granite material, drawings and specifications for granite material, shown on original drawing, setting of the mausoleum unit including caulking, sand and
mortar, unloading of all material named herein; and all interior crypts as specified on approved shop drawings are made a part of this contract. No other
material, labor or services will be provided unless expressly specified in writing.
REFERENCE:
See attached Addendum "A-2" dated January 19, 2006, pages 1-4.
Addendum "A-2" is part of this contract.
See attached Addenda "C" and "D" of even date that are in their entireties made a part of this Contract.
MATERIAL 1 FINISH: Plum Rose/ Carnelian! Sunset Red / Polished, Sawn
The Contract Documents, so far as they relate to material listed herein, are made a part of this Contract. Notwithstanding anything to the contrary in the Contract Documents, Seller
win provide only materials ready to set and will not provide shelf angles, caulking, testing, engineering, support steel, mockups or setting.
Seller's Standard Anchors are Included: YES Seller's Shop Drawings are Included: YES
Price: $504,691.00 Tax: $0.00 Total Amount: $504,691.00 USD
Materials to be delivered F.O.B. Lubbock, TX
City, State, ZIP Code NOTE: Change of delivery address may affect applicable tax rate.
. Above price(s) DO NOT include applicable State or Local Taxes. However, all State & Local Taxes are to be added to the price shown to establish Contract
price unless an appropriate exemption, direct pay, or resale certificate is provided. TAX EXEMPT NO.
PAYMENT TERMS: See attached addendum "A-2", dated January 19, 2006
(Subject to Credit Approval)
1) Approximate delivery is scheduled for 180 days after the date upon which this Contract is executed.
2) Time required to complete shop drawings/tickets is 8 weeks after signed contract is received.
3) 2 weeks allowed for approval of drawing/tickets after being sent to customer if required.
4) 16-18 weeks required for fabrication after approval of drawings or tickets by the customer.
THIS PROPOSAL & CONTRACT FOR MATERIAL INCORPORATES ALL OF THE TERMS & CONDITIONS PRINTED ON
THE FRONT OF THIS DOCUMENT AND/OR INCLUDING ANY ATTACHMENTS.
Buyer hereby accepts Seller's offer to sell and agrees to perform in accordance with all terms and conditions. Buyer, by acceptance of the first delivery of material will be deemed to
have accepted all terms and conditions contained herein regardless of whether this document has been executed by Buyer.
ACCEPTED BY BUYER: City of Lubbock GRANIT BRONZ DIVISION OF COLD SPRING GRANITE COMPANY
Lisa Bijold
BUYER PROPOSED BY: SALESPERSON
SIGNATURE: (Officer or Authorized Rep) DATE ACCEPTED BY: Gary Theisen, Asst. Treasurer DATE
GB -001 (Oct 98)
REF: WI -GE -019
CF=- I -T_ COLD SPRING MEMORML GROUP
A Division of Cold Spring Granite Company
202 South Third Avenue, Cold Spring, MN 56320 USA
www.coldspri nggranite.com
Addendum A-2
588 Crypt /1.00 riche Shelter Mausoleum
City of Lubbock January 19,
2006
Lubbock, TX Page 1 of 4
1) Granit -Brom will include all granite material, crypts, vents, hangers, anchors, and
necessary materials to construct a 588 Crypt /100 Niche Shelter Mausoleum per attached
sketches labeled Exhibit "B". Each 294 crypt/ 50 niche mausoleum will have 7 high crypts
loading three sides: double depth crypts loading two sides and single depth crypts loading
in the shelter area.
2) Roof areas over crypts will be granite slabs sealed with the highest quality caulking
materials. Roof maintenance will be by owner and shall include regular inspection and re -
caulking of joints as it becomes necessary over time. Caulking installed by Cold Spring
Granite Company will be free from defects and failures for a period of 1 year from the
date of substantial completion.
3) Granit -Bron will contact an independent soil engineering company to perform soil
testing. The foundation and upper structure drawings will be based on these results.
4) Granit -Bron will install the foundation. This proposal and pricing is based on reasonably
level terrain and the soil having a bearing capacity of 2,500 PSF. In the event that the
terrain is unusually rough or the soil test indicates that unusual foundation work or
excavation of unusable soil and bringing in of fill will be necessary, any additional costs
will be the responsibility of the Cemetery..
5) Included in this contract are 7' wide sidewalks in the front, and back and 5' wide
sidewalks at the end -walls.
6) Granit-Bronz assumes unusable soil and excavation materials can be disposed of at the
cemetery. Disposal of these soils shall be by the cemetery.
7) Granit -Bronx will provide a performance bond, a valid, executed copy of which is
attached hereto and incorporated herein for all purposes. Granit -Bron will provide a
certificate of liability insurance, a valid summary of the coverages and policy limits under
which is attached hereto and incorporated herein for all purposes. Prior to the date upon
which construction is begun, Granit -Bronx shall designate the City of Lubbock as an
additional insured on said liability insurance policy.
ft
Granit-Bronz Mausoleum 800-328-50401 Fax 320-685-5008 gbmaus@coldspringgranite.com
Construction Services Division 800-328-50401 Fax 320-685-5008 Private Estates 800-328-50401 Fax 320-685-5008
Granit-Bronz 800-328-23121 Fax 800-873-8122 Royal Melrose 800-328-7021 1 Fax 800-473-4881
r� c-7r__J l _T_
City of Lubbock
2006
COLD SPRING MEMORIAL GROUP
A Division of Cold Spring Granite Company
202 South Third Avenue, Cold Spring, MN 56320 USA
www.coldspringgmnite.com
Addendum A-2
588 Crypt 1100 Niche Shelter Mausoleum
January 19,
Lubbock, TX Page 2 of 4
8) Access to the construction site must be provided as per attached Exhibit "A". Deliveries
will be made with a 70' long tractor -trailer weighing 90,000 pounds. Route to the actual
construction site must be free of obstructions. Granit -Bron is not responsible for damage
to roadways, grounds or for any grading required for construction access. Granit -Bron
will make every effort to avoid unusual damages to the site. The purchaser is responsible
for any costs involved with unusual or unforeseen obstructions, such as tree limbs,
boulders, buried electrical, gas or phone lines, etc., that could be in the area of or access to
the foundation.
9) Polystyrene inner crypt closures will be provided for each crypt opening.
10) Quality reinforced pre -cast modular crypts with 5,000 PSI and 28 -day curing will be used.
11) Granite color selection: Polished Plum Rose granite crypt fronts and end -wall facing.
Polished Carnelian mausoleum trim and mural. Sawn Sunset Red granite roofstones.
12) Pre -drilling of crypt fronts with two holes for bronze memorialization and one hole for a
bronze vase is included. Granit -Bron will honor a 10% discount for all bronze name
plates, emblems, and vases purchased through Granit -Bran.
13) Granite facing and trim will be anchored with stainless steel anchors including patented
anchoring system developed by Cold Spring Granite Company.
14) Granite fronts will be hung using Sinner Brother rosette hanging system.
15) Dimensional cut granite jointing will be filled using GE silicone sealant.
16) All crypts will be vented into a ventilation system within the mausoleum.
17) No electrical or mechanical work is included.
18) Roof will drain through exterior aluminum bronze anodized downspouts. Water to drain to
ground level. The Cemetery is responsible for further drainage if required.
ft
Granit -Bron Mausoleum 800-328-50401 Fax 320-685-5008 gbmaus@coldspringgranite.com.
Construction Services Division 800-328-50401 Fax 320-685-5008 Private Estates 800-328-50401 Fax 320-685-5008
Granit -Bron 800-328-23121 Fax 800-873-8122 Royal Melrose 800-328-7021 1 Fax 800-473-4881
C.- T-- __')t 1iI^T_
ori=rte=.
City of Lubbock
2006
COLD SPRING MEMORIAL GROUP
A Division of Cold Spring Granite Company
202. South Third Avenue, Cold Spring, MN 58320 USA
www.coldspringgranho.com
Addendum A-2
588 Crypt /100 Niche Shelter Mausoleum
January 19,
Lubbock, TX Page 3 of 4
19) 20' x 31' shelter is included between mausoleum buildings:
• Pre -stressed concrete decking
• Rubberized roofing membrane
• Granite veneer, front and back
• Concrete pad for shelter walk area
20) Granit-Bronz 10/50 Worry -Free Warranty is included for all granite materials.
21) The Cemetery will supply water and 120V electrical power supply to the site.
22) Granit -Bron will provide a master schedule and complete Iist of the project management
team to the owner upon receipt of contract.
23) Owner shall review and approve or return with comment, shop drawings within 2 weeks
of receipt. Failure to comply with this requirement could cause delays to the completion of
the project and may require additional compensation to Cold Spring Granite Company.
24) The Cemetery is responsible for obtaining and paying for building permits. Permits shall
be obtained in a timely manner to avoid delays to the project.
• The cemetery will be offered the option for Cold Spring Granite Company to obtain and
pay for the building permit including required certification of drawings. The fee for this
option would be $2,000.00 and if chosen a change order will be issued.
25) Site restoration, landscaping, and memorialization is to be by the owner.
26) Payment terms:
• Payments will be made as invoiced, and are to be based on actual value of the work
completed. These payments are to continue as work progresses, until the work is fully
completed.
• A 5% retainer will be held until 30 days after the completion of the mausoleum building.
ft
Granit-Bronz Mausoleum 800-328-50401 Fax 320-685-5008 gbrnaus@acoldspdnggranite.corn
Construction Services Division 800-328-5040 I Fax 320-685-5008 Private Estates 800-328-5040 / Fax 320-685-5008
Granit-Bronz 800-328-2312 / Fax 800-873--8122 Royal Melrose 800-328-7021 / Fax 800-473-4881
r=R I -T-
GRANITES
City of Lubbock
2006
GOLD SPRING MEMORIAL GROUP
A Division of Cold Spring Granite Company
202 South Third Avenue, Cold Spring, MN 56320 IDSA
www.coldspringgranite.com
Addendum A-2
588 Crypt /100 cliche Shelter Mausoleum
January 19,
Lubbock, TX Page 4 of 4
Attachment: Site access requirements, EXHIBIT A.
Building Sketch, EXHIBIT B.
ft
Granit -Bronx Mausoleum 800-328-50401 Fax 320-685-5008
Construction Services Division 800-328-50401 Fax 320-685-5008
Granit-Bronz 800-328-2312 / Fax 800-873-8122
gbmaus@coldspringgranite.com
Private Estates 800-328-50401 Fax 320-685-5008
Royal Melrose 800-328-7021 1 Fax 800-473-4881
Date: 2121/2006 Job: 60 Time: 9:50:14 AM
McGinnis, Lochridge & Kilgore
rak
I. Crypts
Exhibit "C"
UNSOLD INVENTORY
A. Companion
1. Southwest
a. Full Crypts
Row A, 2-8
Row B, 1, 5
Row C, 1-2, 8
Row D, 1-8
Row E, 1, 4-7
Row F, 1-8
Row G, 2-8
b. Half Crypts
Row E, 2, 3, 8
2. Southeast
a. Full Crypts
Row A, 9-16
Row B, 9-12,14,16
Row C, 11-12,14
Row D, 10-15
Row E, 9-10,12-16
Row F, 9-16
Row G, 9-16
b. Half Crypts
Row B, 13
Row C, 15
Row D, 16
Row E, 11
3. Northeast
a. Full Crypts
Row A, 49-56
Row B, 50-51, 56
Row C, 49-50, 52-53, 55
Row D, 49-56
Row E, 49-51, 53-55
Row F, 49-56
Row G, 49-56
b. Half Crypts
Row C, 54
Row D, 56
Row E, 56
4. Northwest
a. Full Crypts
Row A, 57-62, 64
Row B, 58-61, 63
Row C, 57, 62
Row D, 57-63
Row E, 57-60, 62-64
Row F, 57-64
Row G, 57-64
b. Half Crypts
Row C, 58
B. Singles
1. West Unit
Row A, 66, 68-73
Row B, 66
Row C, 68, 72
Row D, 66-74
Row E, 66-74
Row F, 66-74
Row G, 65-74
2. East Unit
Row A, 75-78, 80-82
Row B, 76, 81-84
Row C, 78-79, 83-84
Row D, 77-78, 80-84
Row E, 75, 78, 80-84
Row F, 75-76, 78-84
Row G, 77-84
II. Niches
A. Southwest
Row A, 105-109
Row B, 105-109
Row C, 105, 107-109
Row D, 105-109
Row E, 108-109
B. Southeast
Row A, 120-124
Row B, 120-122
Row C, 120-124
Row D, 120-124
Row E, 120-124
C. Northwest
Row A, 130-134
Row B, 130-134
Row C, 130-134
Row D, 130-134
Row E, 130-134
D. Northeast
Row A, 135-139
Row B, 135-139
Row C, 135-139
Row D, 135-137
Row E, 135-139
Exhibit "D"
CRYPT AND NICHE ALLOCATION
Southwest Panel
A
B
C
D
E
F
G
X
CSB
CSB
COL
COL
COL
X
2
CSB
x
COL
CSB
X.5 (COL)
CSB
CSB
3
COL
X
X
COL
X.5 (COL)
COL
COL
4
CSS
X
X
CSB
CSB
CSB
CSB
5
COL
COL
X
COL
COL
COL
COL
6
CSB
X
x
CSB
CSB
CSB
CSB
7
COL
X
X
COL
COL
COL
COL
8
CSB
x
CSS
CSB
X.5 (COL)
CSB
CSB
Southeast Panel
A
B
C
D
E
F
G
9
COL
CSB
X
X
CSB
COL
COL
10
CSB
COL
x
COL
COL
CSB
CSB
1 I
COL
CSB
COL
CSB
X.5 (CSB)
COL
COL
12
CSB
COL
CSB
COL
CSB
CSB
CSB
13
COL
X.5 (COL)
X
CSB
COL
COL
COL
14
CSB
CSB
COL
COL
CSB
CSB
CSB
15
COL
X
X.5 (COL)
CSB
COL
COL
COL
16
CSB
COL
x
X.5 (CSB)
CSB
CSB
CSB
Northeast Panel
A
B
C
D
E
F
G
49
COL
X
CSB
COL
COL
COL
COL
50
CSB
CSB
COL
COL
CSB
CSB
CSB
51
COL
COL
X
CSB
COL
COL
COL
52
CSB
X
CSB
COL
X
CSB
CSB
53
COL
X
CSB
CSB
CSB
COL
COL
54
CSB
X
X.5 (CSB)
COL
COL
CSB
CSB
55
COL
X
COL
CSB
CSB
COL
COL
56
CSB
CSB
x
COL
X.5 (CSB)
CSB
cSB
Northwest Panel
A
B
c
D
E
F
G
57
COL
X
CSB
COL
COL
COL
COL
58
CSB
COL
X.5 (CSB)
CSB
CSB
CSB
CSB
59
COL
CSB
X
COL
COL
COL
COL
60
CSB
COL
X
CSB
CSB
CSB
CSB
61
COL
CSB
X
COL
X
COL
COL
62
CSB
X
COL
CSB
CSB
CSB
CSB
63
X
COL
X
COL
COL
COL
COL
64
COL
X
X
X
CSB
CSB
CSB
West Unit Singles
A
B
C
D
E
F
G
65
X
X
X
X
X
X
CSB
66
1 CSB
CSB
X
CSB
CSB
CSB
COL
67
X
X
X
COL
COL
COL
CSB
68
COL
X
CSB
CSB
CSB
CSB
COL
69
CSB
X
X
COL
COL
COL
CSB
70
COL
X
X
CSB
CSB
CSB
COL
71
CSB
X
X
COL
COL
COL
CSB
72
COL
X
COL
CSB
CSB
CSB
COL
73
CSB
X
X
COL
COL
COL
CSB
74
X
X
X
CSB
CSB
CSB
COL
Ernst Unit Singles
A
B
C
D
E
F
G
75
COL
X
X
X
COL
COL
X
76
CSB
COL
X
X
X
CSB
X
77
COL
X
X
COL
X
X
CSB
78
CSB
X
COL
CSB
CSB
COL
COL
79
X
X
CSB
X
K
CSB
CSB
80
COL
X
X
COL
COI.
COL
COL
81
CSB
CSB
x
CSB
CSB
CSB
CSB
82
COL
COL
X
COL
COL
COL
COL
83
X
CSB
COL
CSB
CSB
CSB
CSB
84
X
COL
CSB
COL
COL
COL
COL
105
106
107
108
109
120
121
122
123
124
130
131
A
CSB
COL
CSB
COL
CSB
A
COL
CSB
COL
CSB
COL
A
CSB
COL
B
CSB
COL
CSB
COL
CSB
B
COL
CSB
COL
X
X
B
CSB
COL
Southwest Niches
C
CSB
X
COL
CSB
COL
Southeast Niches
C
CSB
COL
CSB
COL
CSB
Northwest Niches
C
COL
CSB
D
COL
CSB
COL
CSB
COL
D
CSB
COL
CSB
COL
CSB
D
COL
CSB
E
X
X
X
COL
CSB
E
COL
CSB
COL
CSB
COL
E
CSB
COL
132
CSB
CSB
COL
COL
CSB
133
COL
COL
CSB
CSB
COL
134
CSB
CSB
COL
COL
CSB
Northeast Niches
A
B
C
D
E
135
COL
COL
CSB
CSB
COL
136
CSB
CSB
COL
COL
CSB
137
COL
COL
CSB
CSB
COL
138
CSB
CSB
COL
X
CSB
139
COL
COL
CSB
X
COL
COL = City of Lubbock
CSB = Community State Bank
X = Sold Inventory
.5 = one-half of double space sold
Single crypts:
Level A
Level B & C
Level D, E, F, & G
True Companions:
Level A
Level B & C
Level D, E, F, & G
Niches:
All levels
Exhibit "E"
RETAIL PRICING*
$3795
$3895
$3695
$3495 per space ($6990 total for two)
$3595 per space ($7190 total for two)
$3395 per space ($6790 total for two)
$1095
* Price includes crypt only, without memorialization or opening/closing costs.