HomeMy WebLinkAboutResolution - 765 - Agreement-Germany Ceramic Tile-Replace Swimming Pool Gutters, Rodgers & Maxey - 03/26/1981= � AA:bs
RES LUTION #765 - 3/26/81-
�.id #6281
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 an Agreement
between the City of Lubbock, and Germany Ceramic Tile, a copy of which is
attached herewith which shall be spread upon the minutes of the Council and as
spread upon the minutes of this Council shall constitute and be a part of this
Resolution as if fully copied herein in detail.
Passed by the City Council this 26th day of March 1981.
BILL c STER, MAYOR
"ATTESTi-
Evelyn Gaf ga, dity Se r t y -Treasurer
.APPROVED AS TO CONTENT:
-iija a"%t'dL0'- - -
Walter Heard, Parks Superintendent
APPROVED AS TO FORM:
Angela Ad s, Assistant City Attorney
ti
s
CONTRACT
STATE OF TEXAS
COUNTY OF LUBBOCK
RESOLUTION x{765 - 3/26/81
Bid 6281
THIS AGREEMENT, made and entered into this -26th day of March ,
A.D.1981, by and between the City of Lubbock, County of Lubbock, State of
Texas, acting by and through Bill McAlister , Mayor, thereunto
authorized to do so, herinafter referred to as OWNER, and
Germany Ceramic Tile
of the City of Lubbock , County!of Lubbock
and State of Texas , hereinafter termed CONTRACTOR.
WITNESSETH: That for and in consideration of the payments and agree-
ments herinafter 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 construc-_
tion of certain improvements described as follows:
Removal of existing swimming pool gutter and installation of new
swimming pool gutter as per specifications at Rodger Park Swimming
Pool and Maxey Park Swimming Pool.
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, superin-
tendence, 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 40 consecutive calendar days thereafter.
CONTRACTOR further agrees to pay $50.00 a day liquidated damages as set
forth in Paragraph 33 of the General Conditions herein.
In Consideration for the aforementioned the OWNER hereby agrees to pay
to the CONTRACTOR the sum of $10.500
The OWNER agrees to pay the CONTRACTOR in current funds for the perfor-
mance of the contract in accordance with the proposal submitted therefor,
subject to additions and deductions, as provided in the contract documents
and
IN WITNESS WHEREOF, the parties to these presents have executed this
contract in six (6) counterparts, each of which shall be deemed and original,
in the year and day first above mentioned.
ATTEST:
City Secretary -Treasurer
APPROVED AS TO CONTENT:
w
WALTER H. HEARD, SUPERINTENDENT OF PARKS
APPROVED AS TO FORM:
Gc.
ANGELA AMS, ASS STANT CITY ATTORNEY
ATTEST:
Secretary
CITY OF LUBBOCK, TEXAS
t t
MAYOR BILL McAL STER
CONTRACTOR
COMPLETE ADDRESS:
Amtn6a onn,
QNy .
... _. i 7!
NOTICE TO BIDDERS
I
Sealed proposals addressed to Floyd P. Nesbitt, Director of Purchasing, City
of Lubbock, Texas, will be received at the office of the Purchasing Agent, 916
Texas Avenue, Lubbock, Texas, until 4:00 o'clock P.m. on the 13th day
of March , 1981, to furnish all labor and materials and perform
all work for the construction of the following described project:
Removal and installation of swimmming pool gutter at Maxey and Rodgers pools.
( See attached sheets fro scope of work.)
After the expiration of the time and date above first written said sealed pro-
posals will be opened by the Director of =Purchasing at his office and publicly
read aloud.
It is the sole responsibility of the bidder to insure that his bid is actually
in the office of Floyd P. Nesbitt, Director of Purchasing for the City of .Lubbock,
prior to the expiration of the date above first written.
The City Council will consider the bids on the day of
19 , at City Hall Lubbock, Texas, or as soon thereafter as may be reasonably
convenient, subject to the right to reject any or all bids and waive any for-
malities. The successful bidder will be required to furnish a performance
bond and payment bond in accordance with Article 5160, Vernon's Ann.Civ.St.,
in the amount of 1006 of the total contract price in the event that said
contract price exceeds $25,000.00. If the contract price does not exceed
$250000.00,the said statutory bonds will not be required.
Bidders are required to submit a cashier's or certified check issued by a bank
satisfactory to the City of Lubbock, or a proposal bond from a reliable surety
company, payable without recourse to the order of the City of Lubbock in an
amount not less than 5% of the total amount of the bid submitted as a guarantee
that bidder will enter into a contract and execute all necessary bonds (if
required) within 10 days after notice of award of the contract to him.
It shall be each bidders sole responsibility to inspect the site of the work
and to inform himself 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 in the preparation of the bid submitted..
The plans, specifications, proposal forms and contract documents may be ex-
amined at the office of the Director of Purchasing for the City. of Lubbock.,. Texas.
Attention of each bidder 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 Agent of the City of Lubbock, which document
is specifically referred to in this notice to bidders. Each bidder's attention
is further directed to provisions of Article 5159a, Vernon's Ann.Civ.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.
City of Lubbock
BY: ;
NO`` fCE Flo d Ne tt
LEAS y ,
E MARK BID RETURN
ENV
E ;or of Purchasing
EFERENCE BID LOPE WITH THE FOLLOWING.
TITLE: CLOSE: 3-�3-81•
REMOVAL a INSTALLATION O 4:00 P.M.
F POOL GUTTERS
r
SCOPE OF WORK
Removal and Installation of Swimming Pool Gutter at:
Maxey: 30th and Oxford Ave.
Rodgers: Bates St. and Gary Ave.
INSTALLATION
1. Removal of old gutter and coping tile
2. Installation of 636 feet (more or less) of 2 ft. gutter sections
3. Hook-up of drain in sections as required
4. Owner will remove all debris and clean-up
MATERIALS
1. Owner will furnish all gutter. Bidder will furnish mortar.
2. All mortar to be moisture resistant
3. Gutter to be sealed with Thoro Systems Quick Seal or approved
equal cement base sealent.
For further instructions see attached sketch or contact:
Scott Snider Ext. 2665
Walter Heard 762-6411 Ext. 2661
Jim Underwood Ext. 2662
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POOLGUTTER SECTION no scale
GENERAL INSTRUCTIONS TO BIDDERS
1. SCOPE OF WORK
The work to be done under the contract documents shall consist of the
following:
The contractor shall furnish all labor, superintendence, machinery,
equipment and all materials necessary to complete this project in accor-
dance with contract documents.
2. CONTRACT DOCLZIENTS
All work covered by this contract shall be done in accordance with con-
tract documents described in the General Conditions.
All bidders shall be thoroughly familiar with all of the requirements set
forth on the contract documents for the construction of this project and
shall be responsible for the satisfactory completion of all work contemplated
by said contract documents.
3. PLANS FOR USE BY BIDDERS
It is the intent of the City of Lubbock that all parties with an interest
in submitting a bid on the project covered by the contract documents be
given a reasonable opportunity to examine the documents and prepare a bid
without charge or forfeiture of deposit. The contract documents, may be
examined without charge as noted in the Notice to Bidders.
4. TIME AND ORDER FOR COMPLETION
The construction covered by the contract documents shall be fully completed
within 45 calendar days from the date specified in the Notice to Proceed
issued by the City of Lubbock to the successful bidder.
The Contractor will be permitted to prosecute the work in the order of
his own choosing, provided however, the City reserves the right to require
the Contractor to submit a progress schedule of the work contemplated by
the contract documents. In the event the City requires a progress schedule
to be submitted and it is determined by the City that the progress of the
work is not in accordance with the progress schedule so submitted, the
City may direct the Contractor to take such action as the City deems
necessary to insure completion of the project within the time specified.
5. PAYMENT
All payments due to Contractor shall be made in accordance with the
provisions of the General Conditions of the contract documents.
1
6. AFFIDAVITS OF BILLS PAID
The City of Lubbock reserves the right, prior to final acceptance of this
project to require the Contractor 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 the Contractor has
been notified.
7. MATERIALS AND WORKMANSHIP
The intent of these contract documents is that only materials and work-
manship of the best quality and grade will be furnished. The fact that
the specifications may fail to be sufficiently complete in some detail
will not relieve the Contractor of full responsibility for providing
materials of high quality and for protecting them adequately until incor-
porated into the project. The presence or absence of a representative of
the City on the construction site will not relieve the Contractor 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 Owner believes necessary to procure a
satisfactory project.
8. GUARANTEES
All equipment and materials incorporated in the project and all construc-
tion shall be guaranteed against defective materials and workmanship.
Prior to final acceptance, the Contractor shall furnish to the Owner, a
written general guarantee which shall provide that the Contractor 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 Owner (City of
Lubbock).
9. PLANS FOR THE CONTRACTOR
The Contractor will be furnished 1 set of drawings, specifications,
and related contract documents for his use during construction. Plans
and specifications for use during construction will only be furnished
directly to the Contractor. The Contractor shall then distribute copies
of plans and specifications to suppliers, subcontractors, or others, as
required for proper prosecution of the work contemplated by the Contractor.
10. PROTECTION OF THE WORK
The Contractor shall be responsible for the care, preservation, conser-
vation, 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 the Contractor has been paid,
partially paid, or not paid for such work, until the date the City issues
its certificate of completion to Contractor. The City reserves the
right, after the bids have been opened and before the contract has been
awarded, to require of a bidder the following information:
(a) The experience record of the bidder showing completed jobs of a
similar nature to the one covered by the proposed contract and all
work in progress with bond amounts and percentage completed.
(b) A sworn statement of the current financial condition of the bidder.
(c) Equipment schedule.
11. TEXAS STATE SALES TAX
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.
The Contractor must obtain a limited sales, excise and use tax permit
which shall enable him to buy the materials to be incorporated into the
work without paying the tax at the time of purchase.
12. PROTECTION OF SUBSURFACE LINES AND STRUCTURES
It shall be the Contractor's responsibility to prosecute the work con-
templated 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 Contractor during the construction of the project contemplated by
these contract documents. The City of Lubbock agrees that it will fur-
nish Contractor the location of all such underground lines and utilities
of which it has knowledge. However, such fact shall not relieve the
Contractor of his responsibilities aforementioned. All such underground
lines or structures cut or damaged by Contractor during the prosecution
of the work contemplated by this contract shall be repaired immediately
by Contractor to the satisfaction of the City of Lubbock, Texas, at
Contractor's expense.
13. BARRICADES AND SAFETY MEASURES
The Contractor shall, at his own expense, furnish and erect such barri-
cades, 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.
The Contractor 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 Contractor at his own cost and expense. The Contractor's responsibility
for maintenance of barricades, signs, and lights shall not cease until
the date of issuance to Contractor of City's certificate of acceptance of
the project.
14. EXPLOSIVES
The use of explosives will not be permitted unless written permission to
do so is obtained by the Contractor from the City. In all cases where
written permission is obtained for the use of explosives, the Contractor
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, the Contractor shall use
f
utmost care so as not to endanger life or property and the Contractor
shall further use only such methods as are currently utilized by persons,
firms, or corporations engaged in similar type of construction activity.
Explosive materials shall not be stored or kept at the construction site
by the Contractor.
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 the
Contractor to notify each utility company having structures (above or
below the ground) in proximity fo the site of the work of Contractor'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 the Contractor of responsibility for any damage resulting
from his blasting operations.
15. CONTRACTOR'S REPRESENTATIVE
The successful bidder shall be required to have a responsible local
representative available at all times while the work is in progress under
this contract. The successful bidder shall be required to furnish the
name, address and telephone number where such local representative may be
reached during the time that the work contemplated by this contract is in
progress.
16. 'INSURANCE
The Contractor shall not commence work under this contract until he has
obtained all insurance as required in the General Conditions of the con—
tract 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.
The insurance certificates furnished shall name the City as an additional
insured and shall further state that all subcontractors are named as
additional insureds, 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.
17. LABOR AND WORKING HOURS
Attention of each bidder is particularly called to the schedule of general
prevailing rate of per diem wages included in these contract documents.
The wage rate which must be paid on this project shall not be less than
specified in the schedule of general prevailing rates of per diem wages
as abovementioned. The bidders' attention is further directed to the
requirements of Article 5159a, Vernon's Annotated Civil Statutes providing
for the payment of the wage schedules above mentioned and the bidder's
obligations thereunder. The inclusion of the schedule of general pre—
vailing rate of per diem wages in these contract documents does not
release the Contractor 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 con-
ditions exist:
(1) The project being constructed is essential to the City of Lubbock's
ability to provide the necessary service to its citizens.
(2) Delays in construction are due to factors outside the control of the
Contractor. The Contractor is approaching the penalty provisions of
the contract and Contractor can show he has made a diligent effort
to complete the contract within the allotted time.
Before construction work requiring an inspector is to be performed on
weekends or holidays, the Contractor must notify the Owner's Representa-
tive not less than three full working days prior to the weekend or holiday
he desires to do work and obtain written permission from the Owner'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 Owner's Representative.
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, the Contractor shall immediately com-
mence 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.
18. 'PAYMENT OF EMPLOYEES AND FILING OF PAYROLLS
The Contractor and each of his subcontractors shall pay each of his
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. The Contractor and
each of his subcontractors engaged at the site of the work shall not
later than the seventh day following the payment of wages, file with the
Owner's representative, or Engineer, a certified, sworn, legible copy of
such payroll. This shall contain the name of each employee, his classi-
fication, the number of hours worked on each day, rate of pay, and net
pay. The affidavit shall state that the copy is 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.
The Contractor must classify employees according to one of the classi-
fications set forth in the schedule of general prevailing rate of per
diem wages, which schedule is included in the contract documents.
The Contractor 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.
19. PROVISIONS CONCERNING ESCALATOR CLAUSES
Proposals submitted containing any conditions which provide for changes
in the stated bid price due to increases or decreases in the cost of
materials, labor or other items required for the project will be rejected
and returned to the bidder without being considered.
20. PREPARATION OR PROPOSAL
The bidder shall submit his proposal on forms furnished by the City. All
blank spaces in the form shall be correctly filled in and the bidder
shall state the price both in words and numerals, for which he proposes
to do the work contemplated or furnish the materials required. Such
prices shall be written in ink, distinctly and legibly, or typewritten.
In case of discrepancy between the price written in words and the price
written in figures, the price written in words shall govern. If the
proposal is submitted by an individual, his name must be signed by him or
his duly authorized agent. If a proposal is submitted by a firm, associa-
tion, or partnership, the name and address of each member must be given
and the proposal signed by a member of the firm, association or partner-
ship, or person duly authorized. If the proposal is submitted by a
company or corporation, the company or corporate name and business ad-
dress must be given, and the proposal signed by an official or duly
authorized agent. Powers of attorney authorizing agents or others to
sign proposals must be properly certified and must be in writing and
submitted with the proposal. The proposal shall be executed in ink.
Each proposal shall be enclosed in a sealed envelope, addressed as speci-
fied in the Notice to Bidders; and endorsed on the outside of the envelope
in the following manner:
(a) Bidder's name.
(b) Proposal for (description of the project).
Bid proposals may be withdrawn and resubmitted at any time prior to the
time set for opening of the bids, but no proposal may be withdrawn or
altered thereafter.
21. BOUND COPY OF CONTRACT DOCUMENTS
Bidder understands and agrees that the contract to be executed by bidder
shall be bound and include the following:
(a) Notice to Bidders.
(b) General Instructions to Bidders.
(c) Bidder's Proposal.
(d) Statutory Bond (if required).
(e) Contract Agreement.
(f) General Conditions.
(g) Special Conditions (if any).
(h) Specifications.
(i) Insurance Certificates.
(j) All other documents made available to bidder for his inspection
in accordance with the Notice to Bidders.
If Plans and Specifications are too bulky or cumbersome to be physically
bound, they are to be considered incorporated by reference into the
aforementioned contract documents.
BID PROPOSAL
BID FOR LUMP SUM CONTRACTS
PLACE
DATE 3 J 3 8� /
PROJECT Mn
osal of
P (hereinaf ter
Pro
called "Bidder")
To the Honorable Mayor and City -Council
City of Lubbock, Texas (hereinafter called Owner)
Gentlemen:
The Bidder, in compliance with your invitation for bids for the construction
of a 0, W -1. A J4 f?D_4-: _ ' _ , J ter.. ' _ _ _ <
having carefully examined the plans, specifications, instructions to bidders,
notice to bidders and all other related contract documents and the site of the
proposed work, and being familar with all of the conditions surrounding the
construction of the proposed project including the availability of materials
and labor, hereby proposes to furnish all labor, materials, and supplies; and
to construct the project in accordance with the plans, specifications and
contract documents, within the time set forth therein and at the price stated
below. The price to cover all expenses incurred in performing the work re—
quired under the contract documents, of which this proposal is to be a part,
is as follows:
... dz tmiA,, t4—
($ �"ZJ,oy )
(Amount shall be shown in both words and figures. In case of discrepancy, the
amount shown in words shall govern.)
Bidder 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 Owner
and to fully complete the project within .9—CI consecutive
calendar days thereafter as stipulated in the specifications and other contract
documents. Bidder hereby further agrees to pay to Owner as liquidated damages
the sum of $ Sp, for each consecutive calendar day in
excess of the time set forth hereinabove for completion of this project, all
as more fully set forth in the general conditions of the contract documents.
Bidder understands and agrees that this bid proposal shall be completed
and submitted in accordance with instruction number 20 of the General Instruc—
tions to Bidders.
Bidder understandsr'that the Owner reserves the right to reject any or all
bids and to waive any formality in the bidding.
The bidder agrees that this bid shall be good and may not be withdrawn
for a period of thirty (30) calendar days after the scheduled closing time for
receiving bids.
The undersigned Bidder hereby declares that he has visited the site of
the work and has carefully examined the plans, specifications, and contract
documents pertaining to the work covered by this bid, and he further agrees to
commence work on or before the date specified in the written notice to proceed,
and to substantially complete the work on which he has bid; as provided in the
contract documents.
Enclosed with th propos al. _is a Cashier's Check or Certified Check for
AA '11W Dollars ($
or a Proposal Bond in the sum o
Dollars ($ ), which it is agreed shall be
collected and retained by the Owner as liquidated damages in the event the
proposal is accepted by the O�--ner and the undersigned fails to execute the
necessary contract documents and the required bond (if any) with the Owner
Within ten (10) days after the date of receipt of written notification of
acceptance of said proposal; otherwise said check or bond shall be returned to
the undersigned upon demand.
Bidder understands and agrees that the contract to be executed by Bidder
shall be bound and include all contract documents made available to him for
his inspection in accordance with the Notice to Bidders.
(Seal if Bidder is a Corporation)
ATTEST:
Secretary
P,
Contractor
BY:
GENERAL CONDITIONS OF THE AGREEMENT
1. OWNER
Whenever the word Owner, or the expression Party of the First Part, or
First Party, are used in this contract, it shall be understood as referring to
the City of Lubbock, Texas.
2. CONTRACTOR
Whenever the word Contractor, or the expression Party of the Second Part,
or Second Party, is used, it shall be understood to mean the person, persons,
co -partnership or corporation, to -wit: Germany Cermanc Tile
, who has agreed to perform the work embraced in
this contract, or to his 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 Designated Representative
of Parks Department , City Hall, Lubbock, Texas, under
whose supervision these contract documents, including the plans and specif-
ications, were prepared, and who will inspect constructions; or to such other
representative, supervisor, or inspector as may be authorized by said Owner to
act in any particular under this agreement. Engineers, supervisor or inspectors
will act for the Owner under the direction of Owner's Representative, but
shall not directly supervise the Contractor or men acting in behalf of the
Contractor.
4. CONTRACT DOCUMENTS
The contract documents shall consist of the Notice to Bidders, General
Instructions to Bidders, Proposal, Signed Agreement, Statutory Bonds (if re-
quired), General Conditions of the Agreement, Special Conditions of the Agree-
ment (if any), Specifications, Plans, Insurance Certificate, and all other
documents made available to Bidder for his inspection in accordance with the
Notice to Bidders.
5. 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, designa-
tion 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 Representa-
tive.
Whenever in the Specifications or drawings accompanying this agreement,
the terms of description of various qualities relative to finish, workmanship,
or other qualities of similar kind which cannot, from their nature, be specifi-
cally and clearly described and specified, but are necessarily described in
general terms, the fulfillment of which .must depend on individual judgment,
then, in all such cases, any question of the fulfillment of said Specifications
shall be decided by the Owner's Representative, and said work shall be done in
accordance with his interpretations of the meaning of the words, terms, or
clauses defining the character of the work.
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 him who gives the notice.
8. WORK
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 Con-
tractor.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 recog-
nized 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 OF WORK
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 Flans and Specifications.
11. KEEPING OF PLANS AND SPECIFICATIONS ACCESSIBLE
The Contractor shall be furnished with 1 copies of all Plans, Pro-
files and Specifications without expense to him and he 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 and quality of the executed work and to determine, in general, if
the work is proceeding in accordance with the contract documents. He will not
be required to make exhaustive or continuous on-site inspections to check the
quality or quantity of the work, nor will he be responsible for the construc-
tion means, methods, techniques, sequences or procedures, or the safety precautions
incident thereto. His efforts will be directed towards providing assurances
for the Owner that the completed project will conform to the requirements of
the contract documents, but he will not be responsible for the Contractor's
failure to perform the work in accordance with the Contract Documents. On the
basis of his on-site observations, he will keep the Owner informed of the pro-
gress of the work and will endeavor to guard the Owner against defects and
deficiencies in the work of the Contractor.
13. LINES AND GRADES
All lines and grades shall be furnished by the Owner's Representative
whenever 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 suspend his 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 him, his Subcontractors, or his 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 shall review all work included
herein. He has the authority to stop the work whenever such stoppage may be
necessary to insure the proper execution of the contract. In order to permit
delays and disputes and to discourage litigation, it is further agreed that
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 this
contract. He 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 Owner's Representative's estimates and findings shall be conditions pre-
cedent to the right of the parties hereto to arbitration or to any action on
the contract, and to any rights of the Contractor to receive any money under
this contract; provided, however, that should Owner's Representative render
any decision or give any direction, which in the opinion of either party
hereto, is not in accordance with the meaning and intent of this contract,
either party may file with said Owner's Representative within 30 days his
written objection to the decision or direction so rendered, and by such action
may reserve the right to submit the question so raised to arbitration as
hereinafter provided. It is the intent of this Agreement that there shall be
no delay in the execution of the work, therefore, written decisions or direction
of the Owner's Representative as rendered shall be promptly carried out, and
any claim arising therefrom shall be thereafter adjusted to arbitration as
hereinafter provided.
The Owner's Representative shall, within a reasonable time, render and
deliver to both the Owner and the Contractor a written decision on all claims
of the parties hereto and on all questions which may arise relative to the
execution of the word: or the interpretation of the contract, specifications
and plans. Should the Owner's Representative fail to make such decision
within a reasonable time, an appeal to arbitration may be taken as if his
decision had been rendered against the party appealing.
15. 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 superintendent and any necessary assistants, all satisfactory to
Owner's Representative. The superintendent shall represent the Contractor in
his absence and all directions given to him shall be binding as if given to
the Contractor. Adequate supervision by competent and reasonable representa-
tives 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 exclu-
sive charge and control of the Contractor and all risk in connection therewith
shall be borne by the Contractor.
The Owner or Owner's Representatives will not be responsible for the acts
or omissions of the Contractor, or any subcontractors, or any of his agents or
employees, or any other persons performing any of the work.
16. CONTRACTOR'S UNDERSTANDING
It is understood and agreed that the Contractor has, by careful examina-
tion, satisfied himself as to the nature and location of the work, the confir-
mation 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 effect the work under this contract.
No verbal agreement or conversation with any officer, agent, or employee of
the Owner, either before or after the execution of this contract, shall effect
or modify any of the terms or obligations herein contained.
17. DEFECTS AND THEIR REMEDIES
It is further 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 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 this contract. It is further agreed
that any remedial action contemplated as hereinabove set forth shall be at
Contractor's expense.
18.. 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,
either before or after the beginning of the 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 antici-
pated 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 any actual loss occasioned by such change, due to actual expenses in-
curred in preparation for the work as originally planned.
19. EXTRA WORT:
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 Repre-
sentative to be done by the Contractor to accomplish any change, alteration or
addition to the work as shown on the plans and specifications or contract
documents and not covered by Contractor's proposal, 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 one or more of 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 actual field cost of the work, plus fifteen
(15%) per cent.
i
1
r
In the event said extra work be performed and paid for under Method (C),
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, time-
keepers, mechanics and laborers,, and 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 Lia-
bility and Property Damage and Workmen's 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 equip-
ment 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 per cent (15%) of the actual field cost to be paid to
Contractor shall cover and compensate him for his 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 the Owner's Representative. In case any orders or instructions
appear to the Contractor to involve extra work for which he should receive
compensation or an adjustment in the construction time, he shall 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 therefor, and the Owner's Repre-
sentative 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). -The Contractor will thereby preserve the right to submit the
matter of payment to arbitration as herein below provided.
20. DISCREPANCIES AND OMISSIONS
It is further agreed that it is the intent of this contract that all work
described in the proposal, the specifications, plans and other contract docu-
ments, is to be done for the prices quoted by the Contractor and that such
price shall include all appurtenances necessary to complete the work in ac-
cordance with the intent of these contract documents as interpreted by Owner's
Representative. If the Contractor finds any discrepancies or omissions in
these plans, specifications, or contract documents, he should notify the
Owner's Representative and obtain a clarification before the bids are received,
and if no such request is received by the'Owner's Representative prior to the
opening of bids, then it shall be considered that the Contractor fully under-
stands the work to be included and has provided sufficient sums in his pro-
posal to complete the work in accordance with these plans and specifications.
It is further understood that any request for clarification must be submitted
no later than five days prior to the opening of bids.
21. 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 with the rate of progress re-
quired under this contract, the Owner or Owner's Representative may order the
Contractor in writing to increase their safety or improve their character and
efficiency and the Contractor shall comply with such order.
If, at any time, the working force of the Contractor is inadequate for
securing the progress herein specified, the Contractor shall, if so ordered in
writing, increase his force or equipment, or both, to such an extent as to
give reasonable assurance of compliance with the schedule of progress.
22.' PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC
The Contractor shall take out and procure a policy or policies of Work-
men's Compensation Insurance with an insurance company licensed to transact
business in the State of Texas, which policy shall comply with the Workmen's
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, his sureties and insurance
carriers shall defend, indemnify and save harmless the Owner and all of its
officers, agents and employees from all suits, actions, or claims of any
character whatsoever, brought for or on account of any injuries or damages
received or sustained by any person or persons or property, on account of any
negligent act or fault of the Contractor or any subcontractor, their agents or
employees, in the execution and supervision of said contract, and the project
which is the subject matter of this contract, on account of the failure of
Contractor or any subcontractor to provide necessary barricades, warning
lights, or signs, and will be required to pay any judgment with costs which
may be obtained against the Owner or any of its officers, agents, or employees
including attorney's fees.
The safety precautions taken shall be the sole responsibility of the
Contractor, in his sole discretion as an Independent Contractor; inclusion of
this paragraph in the Agreement, as well as any notice which may be given by
the Owner, the Owner's Representative concerning omissions under this paragraph
as the work progresses, are intended as reminders to the Contractor of his
duty and shall not be construed as any assumption of duty to supervise safety
precautions by either the Contractor or any of his subcontractors.
23. CONTRACTOR'S INSURANCE
The Contractor shall procure and carry at his sole cost and expense
throughout the life of this contract, insurance protection as hereinafter
specified. Such insurance shall be carried with an insurance company licensed
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 sub-
contractor, or separate policies shall be provided covering the operation of
each subcontractor.
(A) Workmen's Compensation and Employer's Liability Insurance
As required by State statute covering all employees employed on a
work whether employed by the Contractor or any Subcontractor on the job.
(B) Owner's Protective or Contingent Public Liability Insurance and
Property Damage Liability Insurance
The Contractor shall obtain an Owner's Protective or Contingent
Public Liability Insurance policy naming the City of Lubbock as an addi-
tional insured and the amount of such policy shall be as follows:
$ 0 for bodily injuries, including accidental death,
to any one person, but limited to $ 0 per occurrence,
and $ 0 for property damage.
The Contractor shall obtain a Contractor's Protective (Contingent)
Liability Insurance policy and the amount of said policy shall be as
follows:
In an amount not less than $ 0 for bodily injuries,
including accidental death, to any one person, but not less than
$ 0 per occurrence and in the amount of not less
than $ 0 for property damage.
(C) Automobile Insurance
The Contractor shall procure automobile insurance providing coverage
as follows:
In an amount not less than $ 0 for injuries,
including accidental death, to any one person, but not less than
$ . . 0... . per occurrence, and in the amount of
not less than $ 0. for property damage.
(D) Proof of Coverage
Before work on this contract is commenced, each Contractor and sub-
contractor shall submit to the Owner for approval 1 certi-
ficates 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:
r
(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 statement that the 'insurance of the type afforded by
the policy applies to all of the operations of whatever
character, which are undertaken by the insured during the
performance of this contract, provided such operations are
required in the performance of the contract.
(6) A provision that the policy may be cancelled only by mailing
written notice to the named insured at the address shown in the
policy stating when, not less than ten (10) days thereafter,
cancellation of such policy shall be effective, with a copy to
the Owner of said letter of intent.
24. PROTECTION AGAINST CLAIMS OF SUBCONTRACTORS, LABORERS, MATERIALMEN,
AND FURNISHERS OF MACHINERY, EQUIPMENT AND SUPPLIES
The Contractor agrees that he will indemnify and save the Owner harmless
from all claims growing out of any demands of subcontractors, laborers, work-
men, mechanics, materialmen.and furnishers of machinery and parts thereof,
equipment, power tools, all suppliers, including commissary, incurred in the
furtherance of the performance 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.
If during the progress of the work, Contractor shall allow any indebted-
ness to accrue for work furnished by any of those designated in the preceding
paragraph and shall fail to pay and discharge any such indebtedness within
five (5) days after demand is made, then Owner may, during the period for
which such indebtedness shall remain unpaid, withhold from the unpaid portion
of this contract, a sum equal to the amount of such unpaid indebtedness or may
apply the sum so withheld to discharge any such indebtedness.
Any and all communications between any party under this paragraph must be
in writing.
25. 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 effect
the contract or the work, and shall indemnify and save harmless the Owner
against any claims arising from the violation of any such laws, ordinances,
and regulations, whether by the Contractor or his employees. If the Con-
tractor observes that the plans and specifications are at variance therewith,
he shall promptly notify the Owner's Representative in writing and any neces-
sary changes shall be adjusted as provided in the contract for changes in the
work. If the Contractor performs any work knowing it to be contrary to such
laws, ordinances, rules and regulations,' and without such notice to the Owner's
Representative, he 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.
26. ASSIGNMENT AND SUBLETTING
The Contractor further agrees that he will retain personal control and
will give his 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 his full obligations to the Owner, as provided by
this contractual agreement.
27. TIME FOR 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 of work to be done hereunder are essential conditions of this
contract; and it is further mutually understood and agreed that the work em-
braced in this contract shall be commenced on a date to be specified in the
Notice to Proceed.
If the Contractor should neglect, fail, or refuse to complete the work
within the time herein specified, or any proper extension thereof granted by
the Owner, 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 Fifty and No/100
Dollars ($50.00 ), not as a penalty, but as liquidated damages for the
breach of the contract as herein set forth for each and every calendar day
that the Contractor shall be in default after the time stipulated for com-
pleting the work.
It is expressly understood and agreed, by and between Contractor and the
Owner, that the time for the completion of the work described herein is rea-
sonable time for the completion of the same, taking into consideration the
average climatic change and conditions and usual industrial conditions pre-
vailing in this locality.
The amount is fixed and agreed upon by and between the Contractor and the
Owner because of the impracticability and extreme difficulty in fixing and
ascertaining actual damages the Owner would in such event sustain, and the
amount is agreed to be damages the Owner would sustain and shall be retained
by the Owner from current periodical estimates for payments or from final
payment.
It is further agreed and understood between the Contractor and Owner that
time is of the essence of this contract.
28. 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 which have not theretofore been timely filed as provided in this contract.
29. PARTIAL PAYHENTS
On or before the tenth day of each month, the Contractor shall submit to
Owner's Representative an application for partial payment. Owner's Representa-
tive shall review said application for partial payment and the progress of the
work made by the Contractor and if found to be in order shall prepare a certi-
ficate 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; said statement shall also include the value of all sound
materials delivered on site of the work that are to be fabricated into the
work.
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, less 10% of the amount thereof, which 10% shall be retained
until final payment, and further, less all previous payments and all further
sums that may be retained by Owner under the terms of this agreement. It is
understood, however, that in case the whole work be near to completion, and
this fact is certified to by Owner's Representative and some unexpected and
some unusual delay occurs due to no fault or negligence on the part of the
Contractor, the Owner may upon written recommendation of Owner's Representative
pay reasonable and equitable portion of the retained percentage due Contractor.
30. FINAL COMPLETION AND ACCEPTANCE
Within thirty-one (.31) days after the Contractor has given the Owner's
Representative written notice that the work has been completed or substantially
completed, the Owner's Representative and the Owner shall inspect the work and
within said time, if the work be found to be completed or substantially com-
pleted in accordance with the contract documents, the Owner's Representative
shall issue to the Owner and Contractor his certificate of completion, and
thereupon it shall be the duty of the Owner within thirty-one (31) days to
issue a certificate of acceptance of the work to the Contractor.
31. FINAL PAYMENT
Upon the issuance of the certificate of completion, the Owner's Repre-
sentative shall proceed to make final measurement and prepare a final state-
ment of the value of all work performed and materials furnished under the
terms of the agreement, and shall certify 'same to the Owner, who shall pay to
the Contractor on or before the 31st day after the date of certificate of
completion, the balance due Contractor under the terms of this agreement,
provided he has fully performed his contractual obligations under the terms of
this contract; and said payment shall become due in any event upon said per-
formance by the Contractor. Neither the certificate of acceptance 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 special conditions (if any) of this contract or required in
the specifications made a part of this contract.
32. CORRECTION OF WORK BEFORE FINAL"PAYMENT FOR WORK
Contractor shall promptly remove from Owner's premises all materials con-
demned by the Owner's Representative on account of failure to conform to the
contract, whether actually incorporated in the work or not, and Contractor
shall at his own expense promptly replace such condemned materials with other
materials conforming to the requirements of the contract. 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 Con-
tractor's expense.
33. CORRECTION OF WORK AFTER FINAL PAYMENT
Neither the final payment nor certificate nor any provision in this
contract shall relieve the Contractor of responsibility for faulty materials
or workmanship, and he 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 substantial completion. The Owner or the
Owner's Representative shall give notice of observed defects with reasonable
promptness.
34. PAYMENT WITHHELD
The Owner may, on account of subsequently discovered evidence, withhold
or nullify the whole or part of any certificate to such extent as may be
necessary to protect himself from loss on account of:
(a) Defective work not remedied.
(b) Claims filed or reasonable evidence indicating possible filing
of claims.
(c) Failure of the Contractor to make payments promptly to subcontractors
or for material or labor.
(d) Damage to another contractor.
When the above grounds are removed, or the Contractor provides a surety
bond satisfactory to the Owner, which will protect the Owner in the amount
withheld, payment shall be made for amounts withheld because of them.
35. ABANDONMENT BY CONTRACTOR
In case the Contractor should abandon and fail or refuse to resume work
within ten (10) days after written notification from the Owner or the Owner's
Representative, or if the Contractor fails to comply with the orders of the
Owner's Representative, when such orders are consistent with this contract,
this Agreement, or the Specifications hereto attached, 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.
After receiving said notice of abandonment, the Contractor shall not
remove from the work any machinery, equipment, tools, materials or supplies
then on the job, but the same, together with any materials and equipment under
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 case the Surety should fail to commence compliance with the notice for
completion hereinbefore provided for, within ten (10) days after service of
such notice, then the Owner may provide 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 sum which would have been payable under this contract, if the
same had been completed by said Contractor, then the Contractor and/or
his 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. However, 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 Con-
tractor or his Surety shall be credited therewith.
When the work shall have been substantially completed, the Con-
tractor and his Surety shall be so notified and certificates of completion
and acceptance, as provided in paragraph 42 hereinabove set forth, shall
be issued. A complete itemized statement of the contract accounts,
certified to be the Owner's Representative as being correct shall then be
prepared and delivered to Contractor and his Surety, 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
certificate of completion.
In the event the statement of accounts shows that the cost to com-
plete 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 shall pay the
balance shown to be due by them to the Owner, then all machinery, equip-
ment, tools, materials or supplies left on the site of the work shall be
turned over to the Contractor and/or his Surety. Should the cost to
complete the work exceed the contract price, and the Contractor and/or
his Surety fail to pay the amount due the Owner within the time designated
hereinabove, and there remains any machinery, equipment, tools, materials
or supplies on the site of the work, notice thereof, together with an
itemized list of such equipment and materials shall be mailed to the
Contractor and his Surety 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 subject only to the duty of the Owner to exercise ordinary
care to protect such property. After fifteen (15) 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. Such sale may be made at either public or
private sale, with or without notice, as the Owner may elect. The Owner
shall release any machinery, equipment, tools, materials, or supplies
which remain on the jobsite and belong to persons other than the Con-
tractor or his Surety, to their proper owners.
36. ABANDONMENT BY OWNER
In case the Owner shall fail to comply with the terms of this contract,
and should fail or refuse to comply with said terms within ten (10) days after
written notification by the Contractor, then the Contractor may suspend or
wholly abandon the work, and may remove therefrom all machinery, tools, and
equipment, and all materials on the ground that have not been included in
payments to the Contractor and have not been incorporated into the work.
Thereupon, the Owner's Representative shall make an estimate of the total
amount earned by the Contractor, which estimate shall include the value of all
work actually completed by said Contractor at the prices stated in the attached
proposal, the value of all partially completed work at a fair and equitable
price, and the amount of all Extra Work performed at the prices agreed upon,
or provided for by the terms of this contract, and a reasonable sum to cover
the cost of any provisions made by the Contractor to carry the whole work to
completion, and which cannot be utilized. The Owner's Representative shall
. c .
then make a final statement of the balance due the Contractor by deducting
from the above estimate all previous payments by the Owner and all other sums
that may be retained by the Owner under the terms of this Agreement, and shall
certify same to the Owner who shall pay to the Contractor on or before thirty
(30) days after the date of the notification by the Contractor the balance
shown by said final statement as due the Contractor, under the terms of this
Agreement.
37. BONDS
The successful bidder shall be required to furnish a performance bond and
payment bond in accordance with Article 5160, Vernon's Annotated Civil Statutes
in the amount of 100% of the total contract price, in the event said contract
price exceeds $25,000.00. If the contract price does not exceed $25,000.00,
the statutory bonds will not be required. All bonds, if required, shall be
submitted on for supplied by the Owner, and executed by an approved Surety
Company authorized to do business in the State of Texas. And it is further
agreed that this contract shall not be in effect until such bonds are so fur-
nished.
38. SPECIAL CONDITIONS
In the event special conditions are contained herein as part of the con-
tract 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.
39. LOSSES FROM NATURAL CAUSES
Unless otherwise specified herein, all loss 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 and the prosecution of the same,
or from unusual obstructions or difficulties which may be encountered in the
prosecution of the work, shall be sustained and borne by the Contractor at his
own cost and expense.
40. INDEPENDENT CONTRACTOR
Contractor is, and shall remain, an independent contractor, with full,
complete and exclusive power and authority to direct, supervise, and control
his 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 his 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.
.,. , JCR: cl
RESOLUTION
k'HEREAS,.Art. 5159a, V.A.C.S. requires the public body awarding any
contract for public works to.ascertain the general prevailing rate of per them
wages in the locality in which the work is to be performed, and
WHEREAS, the above statute requires that said wage rate specify the
general prevailing rate of per diem wages for each craft or type of workmen or
mechanics needed to execute the public works contract, and
WHEREAS, the above statute further requires that the prevailing rate for
legal holidays and overtime work be set forth, and
WHEREAS, the above statute requires that the above mentioned wage rates
be specified in the call for bids on public works contracts and likewise be
contained in the public works contract itself; NOW THEREFORE:
BE IT RESOLVED BY THE CITY COUNCIL:
THAT the general prevailing rate of per diem wages for building con-
struction trades shall be as set forth in Exhibit A, attached hereto and made
a part hereof for all purposes.
THAT the general prevailing rate of per diem wages for highway -heavy
construction and paving trades and crafts shall be as set forth in Exhibit B,
attached hereto and made a part of this resolution for all purposes.
THAT the prevailing rate of per diem wages for electric construction
trades shall be as set forth in Exhibit C, attached hereto and made a part
hereof for all purposes.
• THAT the prevailing rate for overtime work in excess of 40 hours in a
regular work week shall be (1�2-) one and one half times the rate shown on the
exhibit applicable for each trade or craft in question.
THAT the prevailing rate for weekends and legal holidays shall be
• (11) one and one half times the rate shown on the exhibit applicable for each
trade or craft in question.
THAT the foregoing wage rates shall be made available to all bidders for
their inspection and the call for all bids for public works contracts shall so
state.
THAT each public works contract entered into by the City of Lubbock shall
contain said wage rate schedules.
BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the attached wage rates are found to be the general prevailing
rate of per diem wages in all localities where public works are under-
taken on behalf of the City of Lubbock.
i
Passed by the City Council this day of ,1981.
BILL McALISTER, MAYOR
ATTEST:
Evelyn Gaffga, City Secretary -Treasurer
APPRO'ED AS TO FOMM:
Joi ni' C. Ross, Jr., City Attorney
�BUILDING
CONSTRUCTION PREVAILING RATES
• CRAFT
LUBBOCK
Air Tool Operator
$5.37
Asbestos Worker
6.00
Boilermaker
14.00'
Bricklayer, Stone Mason
9.34
Carpenter
8.82
Cement Finisher
7.19
Electrician
9.70
Glazier
7.00
Iron Worker
6.75
Laborer, General
4.47
Lather
10.00
Marble Setter
5.60
Mason Tender
5.7211
Millwright, Day Rate
7.50
. Mortar Mixer
5.72
Operators, Equipment:
Heavy Equip.
7.70
Light Equip.
5.38
Oiler
5.70
Painters:
Brush
7.45
Spray
7.69
Pipefitter, Plumber
11.69
Plasterer
9.68
Roofer
6.00
Sheet Metal Worker
8.84
Soft Floor Layer
6.00
Terrazzo Worker
6.85
Tile Setter
6.00
Truck Driver
3.50
EXHIBIT A
' CLASSIFICATION HOURLY RATE
POWER EQUIPMENT OPERATORS:
Asphalt Distributor $
5.00
Asphalt Paving Machine
4.70
Broom or Sweeper Operator
4.00
Bulldozer, 150 HP & Less
4.50
Bulldozer, Over 150 HP
5.65
Concrete Paving Finishing Machine
4.35
Concrete Paving Saw
4.00
Crane, Clamshell, Backhoe, Derrick,
Dragline, Shovel (Less than 12 CY)
5.50
Crane, Clamshell, Backhoe, Derrick,
Dragline, Shovel (1 CY & Over)
6.00
Crusher or Screening Plant Operator
4.35
Elevating Grader
4.00
Foundation Drill Operator (Crawler Mounted)
5.85
Foundation Drill Operator (Truck Mounted)
7.00
Foundation Drill Operator Helper
4.50
Front End Loader (211 CY & Less)
4.50
Front End Loader (Over 2I CY)
4.88
Motor Grader Operator, Fine Grade
6.00
Motor Grader Operator
5.66
Roller, Steel Wheel (Plant -Mix Pavements)
4.25
Roller, Steel Wheel (Other -Flat Wheel
or Tamping)
4.30
Roller, Pneumatic (Self -Propelled)
4.00
Scrapers (17 CY & Less)
4.51
Scrapers (Over 17 CY)
4.75
Tractor (Crawler Type) 150 HP & Less
4.05
EXHIBIT B
CLASSIFICATION
HOURLY RATE
•
POWER EQUIPMENT OPERATORS: (cont.)
Tractor (Crawler Type) Over 150 HP
4.50
Tractor (Pneumatic) 80 HP & Less
4.00
Tractor (Pneumatic) Over 80 HP
4.55
Traveling Mixer
4.25
Trenching Machine, Light
4.20
[flagon Drill, Boring Machine or
Post Hole Drill Operator
4.60
Reinforcing Steel Setter (Structures)
6.10
Spreader Box Man
4.80
Swamper
4.55
TRUCE: DRIVERS:
Single Axle, Light
4.05
Single Axle, Heavy
4.08
Lowboy -Float
i
4.75
Welder
5.40
Welder Helper
3.50
EXHIBIT B
HIGHWAY -HEAVY CONSTRUCTION AND
PAVING AND UTILITIES
•~ �CLASSIFICATION
HOURLY RATE
Asphalt Heaterman
$4.65
Asphalt Raker
4.87
Asphalt Shoveler
3.50
Batching Plant Scaleman
5.00
Carpenter
5.95
Carpenter Helper
5.00
Concrete Finisher (Paving)
6.50
Concrete Finisher Helper (Paving)
4.60
Concrete Finisher (Structures)
5.35
Concrete Finisher Helper(Structures)
4.75
Electrician
8.10
Form Builder (Structures)
5.55
Form Setter (Paving & Curb)
5.50
Form Setter Helper (Paving & Curb)
4.00
Form Setter (Structures)
5.50
Form Setter Helper (Structures)
4.50
Laborer, Common
3.50
Laborer, Utility Man
4.05
Manhole Builder, Brick
4.50
Mechanic
5.36
Mechanic Helper
4.00
Oiler
5.00
Serviceman
4.70
Pipelayer
4.50
Pipelayer Helper
3.50
Powderman
5.50
EXHIBIT B
a
y- ELECTRIC CONSTRUCTION TRADES
Power Line Foreman $8.51 hr.
Lineman Journeyman 8.24 hr.
Lineman Apprentice Series 6.18 hr.
Groundmen Series 5.51 hr.
EXHIBIT C
ti 31415 1
.719
NO. 83-561514
JERRY GERMANY § COUNTY COURT AT LAW
6
VS. NUMBER TWO OF
F
THE CITY OF LUBBOCK 6 LUBBOCK COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now JERRY GERMANY, hereinafter called Plaintiff,
complaining of the City of Lubbock, Texas, hereinafter called -
Defendant, and for cause of action would show the Court the
€ollowina•
I.
Plaintiff, JERRY GERMANY, is a tile, brick and cement
contractor in the City of Lubbock, Lubbock County, Texas. The
City of Lubbock, Texas, Defendant, is a municipal corporation,
and may be served with process by serving the City Secretary,
Evelyn Gaffaga, at City Hall, Lubbock, Texas.
II.
In June of 1981, the Plaintiff, JERRY GERMANY, con-
tracted with the City of Lubbock, actinq through its agents,
WALTER HEARD and SCOTT SNYDER, thaf-'he would repair concrete at
the May Simmons pool after a heating system had been.installed in
the pool. Mr. Germany supplied materials and labor for the
repair. The reasonable value of the services in and around
Lubbock, Texas was one thousand dollars ($1,000.00).
III.
At the same time Mr. Germany made a second agreement
that he would repair and replace 50 feet of 8 inch blocks, 3
blocks high on the concrete wall in Prairie Dog Town in MacKinzie
Park which is maintained by the City of Lubbock. The fence had
been destroyed by an automobile accident. The reasonable value
of the labor and materials amounted to one thousand dollars.
Viz,
IV.
It was agreed by the City of Lubbock through its agents
that Mr. Germany would receive approximately fourteen thousand
paving brick which the City was to deliver to Mr. Germany's
desianated location. On or about April 18, 1483, Mr. Scott
Snyder, as representative of the City, informed Mr. Germany that
the City would not honor the contract and would not fulfill its
requirements. Mr. Germany had performed all services and
provided all materials required for completing his obligations
under the agreement.
V.
Although a claim was filed on May 15, 1983, with the
City Secretary of the City of Lubbock, as required under the City
Code of Lubbock, the City has continued to disregard its contract
which is in breach of the agreement. Mr. Germany, has fulfilled
all his requirements and obligations under the contract. mr.
Germany has been damaged in the amount of four thousand dollars
($4,000.00) for which Plaintiff prays judgment.
VI.
In the alternative, the Plaintiff would sue for quantum
meruit for the services and materials rendered to the Defendant,
the City of Lubbock, in the amount of four thousand dollars
($4,000.00).
Plaintiff has been'required to hire the services of the
undersigned attorney to enforce his rights under the contract
which was breached by the City of Lubbock. The Plaintiff has
agreed to pay the attornev a reasonable attorney's fees for which
he prays judgment against the City of Lubbock.
�4HEREFORE PREMISES CONSIDERED the Plaintiff prays that
Defendant by cited to appear and answer herein and that upon
final hearing Plaintiff be granted judgment for four thousand
dollars ($4,000.00) for the services and materials provided under
the contract with the Defendant. In the alternative,.Plaintiff
-2-
prays that -upon final hearing judgment be granted for four
thousand dollars ($4,000.00) as quantum meruit for the services
and materials provided for Defendant. Plaintiff further prays
that judgment be granted for reasonable attorney's fees, for
costs of Court and for other and further relief, special or
general, legal or equitable, as Plaintiff may be shown to be
• justly entitled to receive.
Respectfully submitted,
ROBERT D. KIZER
Suite 201 Court Place
1001 Main Street
Lubbock, Texas 79401
(806) 763-6016
CJF
Y
BUBEFT ✓1`:'�� B
By; D. K1ZER
Robert D. Kizer
State Bar No. 11547500
Attorney for Plaintiff
STATE OF TEXAS 6
COUNTY OF LUBBOCK §
BEFORE 'me, the undersigned Notary Public, on this day
personally appeared ROBERT D. KIZER, who being by me duly sworn
on his oath deposed and said that he is the attorney for the
Plaintiff in the above entitled and numbered cause; that he has
read the above and foregoing Plaintiff's Original Petition; that
every statement contained therein is within his personal knowl-
edge and true and correct.
RUBF,9T J. T
ROBERT D. KIZER
C
.SUBSCRIBED and sworn to before me on the O7� day of
1983, to certify witness m and offic al
, y
sea
Notary Public in and for
The State of Texas
my commission expires.:
-3-
7•1111—CITATION—PERSONAL SERVICE—COUNTY COURT—ANY COUNTY RULES 99.107—RULES OF CIVIL PROCEDURE AND RULE 101 AS AMENDED MARCH 1, 1-1-,7
The State of Texas
To: The City of Lubbock, by serving the City Secretary,
Evelyn Gaffaga
Greeting:
You are commanded to appear by filing a written answer to the plaintiff's petition at or before 10 o'clock A.\I,
of the Monday next after the expiration of 20 days after the date of service hereof, before the Honorabir
County Court at Law No....... of Lubbock County, Texas, at the Court House in Lubbock, Texas.
Said plaintiff's petition was filed on the 29th day of Oct. 19 83
The file number of said suit being No. 83-561514
The style of the case is
Jerry Germany
Plaintiff
versus
The City of Lubbock
Defendant
A copy of plaintiff's petition accompanies this citation.
If this Citation is not served within 90 days after the date of its issuance, it shall be returned unserved.
Issued this the 14th day of Oct. , A. D., 19 8 3
Given under my hand and seal of said Court, at office in Lubbock, Texas, this the 14th day
of Oct. , A. D., 19 83
FRANK GUESS, Clerk
County Court at Law No..? ....... of Lubbock- County, Tr % s.
By(>i`� -G�C�� tiz_ L•� D( pill
.M This, a true copy of tbt original Citation. wu delivered
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