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R2018-212 2018-10-22 RESOLUTION NO. R2018-212 A Resolution of the City Council of the City of Pearland, Texas, awarding a Construction Manager at Risk contract for the Fire Station No.8 Project to Durotech, in the amount of $10,000.00 for pre-construction services, $427,914.00 for General Conditions, and authorizing payment of 2.85% for profit and overhead based on the Guaranteed Maximum Price which shall be subject to future City Council approval. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That Requests for Proposals for construction of the Fire Station No.8 Project have been reviewed and tabulated. Section 2. That the City Council hereby awards a Construction Manager at Risk contract to Durotech, in the amount of$10,000.00 for pre-construction services, $427,914.00 for General Conditions, and authorizing the payment of 2.85%for profit and overhead based on the Guaranteed Maximum Price which shall be subject to future City Council approval. Section 3. The City Manager or his designee is hereby authorized to execute a Construction Manager at Risk contract for the Fire Station No.8 Project. PASSED, APPROVED and ADOPTED this the 22nd day of October, A.D., 2018. ----- )03'n P..tri TOM REID MAYOR ATTEST: Y• iNG LO {I G, 'R V' %\ •(oz.. Y SEC" ARY ..... APPROVED AS TO FORM: \4 C . DARRIN M. COKER CITY ATTORNEY CONSTRUCTION AGREEMENT CONSTRUCTION MANAGER AT RISK TABLE OF CONTENTS 1. General Provisions 1.1 Relationship of the Parties 1.2 General Conditions 1.3 Contract Documents 1.4 Owner 1.5 Contractor 1.6 Administration of the Contract 1.7 Subcontractors 1.8 Construction by Owner or by Separate Contractor 1.9 Changes in the Work 1.10 Prosecution and Progress 1.11 Payments and Completion 1.12 Protection of Persons and Property 1.13 Insurance and Bonds 1.14 Uncovering and Correction of Work 1.15 Miscellaneous Provisions 1.16 Termination or Suspension of the Contract r2. Construction Manager's Responsibilities 2.1 Preconstruction Phase 2.2 Guaranteed Maximum Price Proposal 2.3 Construction Phase 3. Owners Responsibilities 3.1 Information and Services 3.2 Owner's Designated Representatives 3.3 Architect 4. Compensation and Payments for Preconstruction Services 4.1 Compensation 4.2 Payments 5. Compensation for Construction Phase Services 5.1 Compensation 5.2 Guaranteed Maximum Price 5.3 Changes in the Work 6. Cost of the Work for Construction Phase 6.1 Costs to be Reimbursed 6.2 Costs Not to be Reimbursed 6.3 Discounts, Rebates and Refunds 6.4 Accounting Records 7. Construction Phase 7.1 Progress Payments 7.2 Final Payment 8. Miscellaneous Provisions 9. Termination or Suspension 9.1 Termination Prior to Establishing Guaranteed Maximum Price 9.2 Termination Subsequent to Establishing Guaranteed Maximum Price 10. Other Conditions and Services ( CITY OF PEARLAND STANDARD FORM OF AGREEMENT BETWEEN CITY AND CONSTRUCTION MANAGER AT RISK This Agreement is entered into by and between the City of Pearland, a Texas home-rule municipal corporation(the"City") and Durotech Inc. , a Texas corporation(the"Construction Manager"or Contractor") for the construction of_City of Pearland, Fire Station#8. SECTION 1. GENERAL PROVISIONS 1.1 Relationship of the Parties. 1.1.1 The Construction Manager accepts the relationship of trust and confidence established with the City by this Agreement, and covenants with the City to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the City. The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the City. The City shall endeavor to promote harmony and cooperation_among the City, Architect, Construction Manager and other persons or entities employed by the City for the Project. 1.2 General Conditions. 1.2.1 Basic Definitions. - 1.2.1.1 Addenda. Addenda are written or graphic instruments issued prior to the execution of the Contract, which modify or interpret the proposal documents, including Drawings and Specifications, by additions, deletion, clarification or corrections. Addenda will become part of the Contract Documents when the Agreement is executed. 1.2.1.2 Approved, Approved Equal and Approved Equivalent, or Equal relate to the substitution of materials, equipment or procedure approved in writing by the Architect prior to receipt of proposals. The substitution procedure process to be followed prior to receipt of competitive sealed proposals is described in the instruction to proposers. - 1.2.1.3 Calendar Day. A "calendar day" is any day of the week or Month or year, no days being excepted. Unless otherwise expressly provided, all references to "day(s)" shall mean Calendar Day(s). 1.2.1.4 City/ City Representative. Whenever the word "City" is used, it shall mean and be understood as referring to the City of Pearland, Texas. The word"Owner" shall refer to the same entity and may be used interchangeably. Whenever the words "City's Representative" or "Representative" are used, it shall mean and be understood as referring to the CityProject Manager or his delegate, who shall act as the City's agent. The City's Representative may inspect and issue instructions but shall not directly supervise the Contractor. The City's inspector has authority to reject the Work for failure to comply with the Contract Documents and/or applicable laws. 3 1.2.1.5 Contract Definitions: The term "Contract Documents" shall mean ( those documents listed in Paragraph 1.3. The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written Modification. The Contract Documents shall not be construed to create a contractual relationship of any. kind (1) between the Architect and Contractor, (2)between the City and a Subcontractor or Sub-subcontractor, (3)between the City and Architect or(4)between any persons or entities other than the City and Contractor. The Architect shall be entitled,however,to performance and enforcement of obligations of the Contractor under the Contract intended to facilitate performance of the Architect's duties. 1.2.1.6 Contractor. Whenever the word "Contractor" is used, it shall mean the person(s), partnership, or corporation who has agreed to perforin the work embraced in this Agreement and the other Contract Documents;. specifically it shall mean the Construction Manager. 1.2.1.7 Contract Time. The period of time which is established in the Contract Documents for Substantial Completion of the Work. This period of time shall be accounted for in Calendar Days, as defined above, and is not subject to adjustment or extension without the written agreement of the City. The following definitions shall apply to Contract Time calculations: a. Work Day: As used herein, a "Work Day" is defined as any Monday through Friday, not a legal holiday, and any Saturday or Sunday specifically approved by the OWNER, in which the CONTRACTOR can perform six or more hours of work per the current construction schedule. CONTRACTOR agrees to request specific approval from the Construction Manager or Owner, in advance, to perform work on Saturdays or Sundays and in so doing agrees to pay all charges and costs for Inspection and or Construction Management services required during the performance of any such approved work. b. Rain Day: As used herein, is defined as any WORK DAY during which weather related conditions prevent the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items as identified in the current construction schedule. CONTRACTOR shall record Rain Days on the Pay Application each month for the review and possible approval by the OWNER. The approved Rain Day is then added to the Contract Time. c. IMPACT DAY: As used herein, is a day that is added to the CONTRACT TIME by the OWNER by Change Order to extend the Contract Time by one full Work Day. Impact Days, once approved by the OWNER, shall extend the Contract Time on a one-to-one basis to replace a Work Day lost to conditions that prevented the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items. Impact Days are added to the Contract Time by Change Order only at the end of the work and then only if, in the opinion of the OWNER, a time extension is warranted due to delays beyond the control of the 4 Contractor and required to complete the work within the Contract Time f 1 1.2.1.8 Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.2.1.9 Extra Work. The term "Extra Work" shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by the City's Representative and approved by the City in writing prior to the work being done by the Contractor. 1.2.1.10 Final Completion. The term"Final Completion" shall mean that all the work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to material suppliers and subcontractors have been made, all documentation and warranties have been submitted, and all closeout documents have been executed and approved by the City. 1.2.1.11 Interpretation of Phrases. Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used, it is understood that the direction, requirement, permission, order, designation, or prescription of the City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to the City's Representative. In the interest of brevity the Contract Documents may omit modifying words such as "all" or"any" and articles such as "the" and "an", but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.2.1.12 Nonconforming work. The term "nonconforming work" shall mean work or any part thereof that is rejected by the e City's Representative as not conforming with the Contract Documents. 1.2.1.13 Notice to Proceed. A notice that may be given by the Owner to the Contractor that directs the Contractor to start the Work. 1.2.1.14 Partial Substantial Completion. Designation of Partial substantial Completion may be provided on components of the Work that must be placed into service prior to the completion of the entire Work. The contractor's One Year Warranty period for these items shall begin on the date of Partial Substantial Completion as designated by the Architect. The Architect shall determine and make all such designations. 1.2.1.15 Parties. The"parties" are the City and the Contractor. 1.2.1.16 Proiect. The term "Project" shall mean and include all that is required to obtain a final product that is acceptable to the City. The term"work" shall have like meaning. The Project is the total construction of which the Work performed under the A Contract Documents may be the whole or a part and which may include construction by the City or by separate contractors. 5 1.2.1.17 ProTrak. As used herein describes the City's project management software used to enhance communications between the project team members. All product submittals, RFI's, RFPs, plan sheet changes, plans and specs are held and available to all team members within this web-based software. All payment applications are made and approved within the software. All team members will be given access and will use this software platform for project document transmittals. 1.2.1.18 Punch List. A comprehensive list prepared by the City prior to Substantial Completion to establish all items to be completed or corrected; this list may be supplemented by the Architect or the City. 1.2.1.19 Specifications. The Specifications are .that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. Organization of the Specifications into divisions, sections and articles, and arrangement of drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 1.2.1.20 Subcontractor. The term "subcontractor" shall mean and include only those hired by and having a direct contact with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project, and all subcontractors shall look exclusively to the Contractor for any payments due. 1.2.1.21 Substantial Completion. The term "Substantially Completed" means that in the sole discretion of the City's Representative, the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price, including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Contractor. 1.2.1.22 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor,materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. The Work includes all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and things.necessary,proper or incidental to the carrying out and completion of the terms of the Contract Documents and all other items of cost or value needed to produce, construct and fully complete the Work identified by the Contract Documents. 1.2.1.23 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 1.3 Contract Documents. 6 1.3.1 The Contract Documents and their priority shall be as follows: 1.3.1.1 This signed Agreement 1.3.1.2 Addendum to this Agreement 1.3.1.3 Special Conditions 1.3.1.4 Technical specifications 1.3.1.5 Drawings 1.3.1.6 Instructions to Bidders and any other notices to Bidders or Contractor 1.3.1.7 Performance bond,Payment bonds,Bid bonds and Special bonds 1.3.1.8 Contractor's Proposal 1.3.2 Where applicable, the Contractor will be furnished one (1) CD of plans, drawings, specifications, and related Contract Documents for its use during construction. Plans and specifications provided for use during construction shall be furnished directly to the Contractor only. 1.3.3 The Contractor shall distribute copies of the plans and specifications to suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the plans and specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the work contemplated by this Agreement. 1.3.4 All drawings, specifications, and copies thereof furnished by the City shall not be re-used on other work, and with the exception of one(1) copy of the signed Contract Documents, all documents, including sets of the plans and specifications and"as built" drawings, are to be returned to the Cityon request at the completion of the work. All Contract Documents, models, mockups, or other representations are the property of the City. In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide.the better quality or greater quantity of Work, or (2) comply with the more stringent requirement, either or both in accordance with the City's interpretation. 1.4 Owner. 1.4.1 The Owner (or City) is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the City of Pearland or the City's authorized representative. The terms "Owner" and"City"may be used interchangeably throughout this Agreement. 1.4.2 The presence of the City or Architect at the Work site does not imply -- acceptance or approval of Work. 7 (' 7 1.4.3 Information And Services Required Of The Owner. 1.4.3.1 Information or services reasonably necessary for the Work and under the City's control shall be furnished by the City with reasonable promptness where requested in writing by the Contractor. In any instance where information or services from the City or Architect is required, Contractor shall promptly notify the Architect in writing, with a copy to the City, of the particular need. Absent such notification, any Claim based upon lack of such information or services shall be waived. 1.4.4 Owner's Right to Stop the Work. 1.4.4.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 1.14.2. or persistently fails to carry out Work in accordance with the Contract Documents, the City may issue a written order to the Contractor to stop the Work,or any portion thereof, until the cause for such order has been eliminated;however,the right of the City to stop the Work shall not give rise to a duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity. 1.4.5 Owner's Right to Carry Out the Work. 1.4.5.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness, the City may, without prejudice to other remedies the City may have,correct such deficiencies.In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies,including compensation for the Architect's additional services made necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the City. 1.4.5.2 After the Work is complete, the City may make emergency repairs to the Work, if necessary, to prevent further damage, or if the Contractor does not promptly respond to a notice of condition requiring repairs. Contractor shall be responsible to City for this cost if the repairs are due to the Contractor's defective Work. If payments then or thereafter due the Contractor are not sufficient to cover such costs, the Contractor shall pay the difference to the City. 1.4.6 Owner's Right to Use or Occupy. 1.4.6.1 The City shall have the right to occupy or use without prejudice to the right of either party, any completed or largely completed portions of the Project, notwithstanding the time for completing the entire Work or such portions may not have expired. Such occupancy and use shall not constitute acceptance of any Work not in accordance with the Contract Documents. 1.5 Contractor. 8 1.5.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor"means the Contractor or the Contractor's authorized representative. 1.5.2 The Contractor shall perform the Work in accordance with the Contract Documents 1.5.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 1.5.4 Review of Contract Documents and Field Conditions by Contractor. 1.5.4.1 The Contractor shall carefully study and compare the Agreement, Conditions of the Contract, Drawings, Specifications, Addenda, and Modifications and shall at once report to the Architect any error, inconsistency, or omission the Contractor discovers. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect,the Contractor shall assume responsibility for such performance and shall pay the total amount of the attributable costs for correction. Contractor shall not be liable to City or Architect for any damage resulting from such error, inconsistency or omission which Contractor should not have discovered or which Contractor did discover and at once so reported. Contractor shall do no Work without approved Drawings and Specifications marked Issued for Construction. 1.5.4.2 If the Contractor fails to perform the obligations of Paragraph 1.5.4.1., the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations. 1.5.4.3 The Contractor shall not be entitled to additional compensation for the "rework portion" of any additional work caused by its failure to carefully study and compare the Contract Documents prior to execution of the Work. 1.5.4.4 The Contractor shall make a reasonable attempt to interpret the Contract Documents before asking the Architect for assistance in interpretation. The Contractor shall not ask the Architect for observance of work prior to the Contractor's field superintendent's personal inspection of the Work and his determination that the Work complies with the Contract Documents. The Contractor shall arrange meetings prior to commencement of the Work of all major Subcontractors to allow the Subcontractor(s) to ask for any interpretation it may require. 1.5.4.5 If, in the opinion of the Architect, the Contractor does not make a reasonable effort to comply with the above requirements of the Contract Documents and this causes the Architect or its Consultants to expend an unreasonable amount of time 9 in the discharge of the duties imposed on the Architect by the Contract Documents,then the Contractor shall bear thecost of compensation for the Architect's additional services made necessary by such failure. The Architect will give the Contractor prior notice of intent to bill for additional services related to .above requirements before additional services are performed. 1.5.4.6 If the Contractor has knowledge that any of the products or systems specified will perform in a manner that will limit the Contractor's ability to satisfactorily perform Work or to honor Contractor's Warranty, Contractor shall promptly notify the Architect, in writing,providing substantiation for Contractor's position. Any necessary changes, including substitution of materials, shall be accomplished by appropriate Modification. 1.5.5 Supervision and Construction Procedures. 1.5.5.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the City and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. 1.5.5.2 The Contractor shall be responsible to the City for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. It is understood and agreed that the relationship of the Contractor to City shall be that of an independent contractor. Nothing contained herein or inferable herefrom shall be deemed or construed to(1)make Contractor the agent, servant or employee of the City, or (2) to create any partnership,joint venture, or other association between City and Contractor. Any direction or instruction by City or any of its authorized representatives in respect of the Work shall relate to the results the City desires to obtain from the Work, and shall in no way affect Contractor's independent contractor status described herein. 1.5.5.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 1.5.5.4 Contractor shall execute the Work in a good and workmanlike manner, continuously and diligently in accordance with generally accepted standards of construction management and practice for construction of projects similar to the Project, __ using qualified, careful and efficient workers and in conformity with the provisions of this 10 Contract and the other Contract Documents. 1.5.6 Labor and Materials. 1.5.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 1.5.6.2 The Contractor may make substitutions only with the consent of the City, after evaluation by the Architect and in accordance with a Change Order. 1.5.6.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 1.5.7 Warranty. 1.5.7.1 The Contractor warrants to the City and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents and recognized industry standards. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance (unless such maintenance is Contractor's responsibility), improper operation, or normal wear and tear. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.The-warranties set out in this Paragraph are not exclusive of any other warranties or guarantees set out in other places in the Contract Documents or implied under applicable law. 1.5.7.2 Prior to final payment, Contractor shall furnish any manufacturer warranties required by the Contract Documents. 1.5.7.3 When deemed necessary by the City, and prior to installation of any items specifically made subject to a performance standard or regulatory agency standard under any provision of the Contract Documents, Contractor shall furnish proof of conformance to the Architect. Proof of Conformance shall be in the form of(1) an affidavit from the manufacturer certifying that the item is in conformance with the applicable standard, (2)an affidavit from a testing laboratory certifying that the product has been tested within the past year and is in conformance with the appreciated standard, or(3.) such further reasonable proof as required by the Architect. ( 1.5.7.4 The warranties of Contractor provided in Subparagraph 1.5.7.1. shall in no way limit or abridge the warranties of the suppliers of equipment and 11 system which are to comprise a portion of the Work and all of such warranties shall be in form and substance as required by the Contract Documents. Contractor shall take no action or fail to act in any way which results in the termination or expiration of such third party warranties or which otherwise results in prejudice to the rights of City under such warranties. Contractor agrees to provide all notices required for the effectiveness of such warranties and shall include provisions in the contracts with the providers and manufacturers of such systems and equipment whereby the City shall have a direct right, but not a duty, of enforcement of such warranty obligations. 1.5.7.5 In the event of failure of materials,products, or workmanship, either during construction or the warranty period (which shall be one (1) year from the Date of Final Completion, except where a longer period is specified), the Contractor shall take appropriate measures to assure correction or replacement of the defective items, whether notified by the City or Architect. 1.5.7.6 Approximately eleven (11) months after Substantial Completion, the Contractor shall accompany the City and Architect on a complete inspection of the Project and be responsible for correcting any observed or reported deficiencies within thirty(30) calendar days. 1.5.8 Permits, Fees and Notices. 1.5.8.1 Unless otherwise provided in the Contract Documents, the Contractor shall establish an Allowance in the GMP for the payment for gas, electric utility connections to the project. Owner shall pay the Contractor the direct costs of these connection fees as determined by the Utility's Terns and Conditions statement. 1.5.8.2 Water and Sewer utilities will be established and service provided at no-charge to the contractor. However the contractor may provide the site with a temporary "hydrant meter"obtainable from the Public Works department for the refundable deposit of $1,425.00 plus a non-refundable$75.00 setting fee. 1.5.8.3 Upon acceptance of the project as Substantially Complete the Owner and Contractor shall arrange for the transfer of all utilities to the Owner's account. To avoid any interruption of critical utility services,Contractor shall notify Owner 60 days prior to anticipated transfer date. Owner shall immediately make arrangements to establish accounts as necessary to transfer billing within a seven day window of the scheduled date. Should transfer of utility billing be delayed through no fault of Contractor,Owner shall pay Contractor a daily utility rate equal to the charges accrued between planned transfer date and date of actual transfer. 1.5.8.4 The Contractor shall include and pay for any inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. All permit fees for the project shall be the responsibility of the Owner. The City will not charge inspection fees for inspection services provided by its internal forces. 1.5.8.5 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders and all other requirements.of public authorities applicable to performance of the Work. The Contractor shall procure and obtain all bonds required of the City or the Contractor by the Contract Documents. In connection with such bonds, the Contractor shall prepare all applications, supply all necessary back-up 12 material, and furnish the surety with any required information. The Contractor shall also obtain and pay all charges for all approvals for street closing and other similar matters as may be necessary or appropriate from time to time for the performance of the Work. 1.5.8.6 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are contrary therewith, the Contractor shall promptly notify the Architect and City in writing, and necessary changes shall be accomplished by appropriate Modification. 1.5.8.7 If the Contractor performs Work which it knows to be contrary to applicable laws, statutes, ordinances, building codes, and rules and regulations and fails to provide such notice to the Architect and City, the Contractor shall be liable for any cost incurred by the City due to the failure to provide notice and shall promptly remediate any and all work identified to be in violation. 1.5.8.8 The Contractor shall be responsible for timely notification to and coordination with all utility companies regarding the provision of or revising of services to the Project. The Contractor shall inform the Architect at once when the City's participation is required. Connections for temporary and permanent utilities required for the Work are the responsibility of the Contractor. Payment for temporary and/or permanent utility services through Substantial Completion of the Work shall be the responsibility ( of the Contractor. 1.5.9 Allowances. 1.5.9.1 Material and Equipment Allowances: The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the materials and equipment delivered and unloaded at the site. The Contractor's installation labor, overhead, profit, and other expenses contemplated for the allowance material and equipment shall be included in allowance only where called for in the Contract Documents. The Contractor shall purchase the allowance materials and equipment as directed by the Architect on the basis of the lowest responsive bids of at least three (3) competitive bids. If the actual cost of the material and equipment delivered and unloaded at the site is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Paragraph 1.5.9.1 and (2) changes in Contractor's costs, subject to the limitations set forth at Paragraph 1.9.2.1 (c). 1.5.9.2 Materials and equipment under an allowance shall be selected with reasonable promptness by the City to avoid delays in the Work (provided that if a decision is needed by a certain date to avoid delay, Contractor shall notify Architect in writing sufficiently in advance of the needed date to allow reasonable time for selections). 13 1.5.9.3 Utility Connection Allowances: The Contractor shall include in the Contract Sum Utility Connection allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the Terms and Conditions of the Utility to perform the installation of materials and equipment of the site to provide the project with the subject utility. The Contractor's labor, overhead, profit, if any, contemplated for the Utility allowance shall be included in allowance only where called for in the Contract Documents. If the actual cost of the utility connection fees is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. 1.5.10 Superintendent. 1.5.10.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. Notwithstanding the foregoing, Contractor shall keep on the job the superintendent approved by City who shall not be transferred from the Project without City's consent (which shall not be unreasonably withheld). However, such obligation to furnish the superintendent shall not be construed (1) to preclude the promotion within Contractor's organization of any person assigned to the Project or (2) to give rise to any liability of Contractor if any person assigned to the Project leaves Contractor's employ. If City reasonably determines that any employee of Contractor or of its Subcontractors is careless or not qualified to perform the Work assigned to him, and City and Contractor cannot, after a diligent and good faith attempt, agree what action should be taken with respect to the removal or reassignment of such employees, the Contractor shall promptly remove such employee from the Project and replace such employee. At all times while procurement activities are being performed in Contractor's office, Contractor shall appoint an individual(approved by City, acting reasonably) authorized to act on behalf of Contractor and with whom City may consult at all reasonable times, and who shall be authorized to receive the instructions, requests and decisions of City. All of Contractor's and Subcontractor's personnel shall comply with all applicable health, safety, and loss prevention rules of applicable authorities. Contractor shall,at its own expense,remove from the Project any person who fails to comply with such rules and instructions in any material respect. 1.5.11 Contractor's Construction Schedules. 1.5.11.1 The Contractor shall, promptly after executing the Contract, develop a construction schedule reasonably defining a plan for completing the Work within the required time. The format and detail of the schedule shall be in keeping with the size and complexity of the Project, and the schedule and all subsequent updates shall be subject to the approval of the City and Architect. The schedule and any updates shall not exceed time limits current under the Contract Documents including granted time extensions, and shall be revised at appropriate intervals as reasonably required by the City and Architect, 14 shall be related to the entire Project (if more than one Contract is involved in the Project), and shall provide for expeditious and practicable execution of the Work. All updated schedules shall address the subject of how the Contractor intends to overcome any delays previously encountered. The Contractor shall submit to the Architect with each monthly Application for Payment, a copy of the updated construction schedule as a prerequisite for approval of Applications for Payment. 1.5.11.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. 1.5.11.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the City and Architect. 1.5.11.4 The process of approving Contractor's schedules and updates to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Contractor's schedules. Approval of a Contractor's schedule does not constitute a commitment by the.City to furnish any Owner- furnished information or material any earlier than City would otherwise be obligated to furnish that information or material under the Contract Documents. Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a Claim for additional compensation or time. In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs to a minimum. The construction schedules shall be in a detailed format satisfactory to the City and the Architect and shall also: (1)provide a graphic representation of all activities and events that will occur during performance of Work; (2) identify each phase of construction and occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as Milestone Dates). If not accepted, the construction schedules shall be promptly revised by the Contractor in accordance with the recommendations of the City and Architect and re-submitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedules and shall promptly advise the City of any delays or potential delays. The accepted construction schedules shall be updated to reflect actual conditions as set forth in Paragraph 1.5.11.1, if requested, by either the City or Architect. In the event any schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay. In no event shall any schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order. 1.5.12 Documents and Samples at the Site. 1.5.12.1 The Contractor shall maintain at the site for the City one record copy of the Permit Drawings, Specifications, Addenda, Change Orders, As Built Mark-ups and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop (' Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the City upon 15 completion of the Work. 1.5.13 Shop Drawings,Product Data and Samples. 1.5.13.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub- subcontractor,manufacturer, supplier or distributor to illustrate some portion of the Work. 1.5.13.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 1.5.13.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 1.5.13.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Paragraph 1.6.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. 1.5.13.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the City or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. 1.5.13.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. If, in the opinion of the Architect, the shop drawings indicate a lack of study and the review by the Contractor is incomplete, or indicate an inadequate understanding of the Work covered by the shop drawings,prior to submittal to the Architect,the shop drawings will be returned, unchecked, to the Contractor for correction of any/all of these deficiencies for subsequent resubmittal. 1.5.13.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 16 1.5.13.8 The Work shall be in accordance with approved submittals except that the Contractor shall -not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1)the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,Product Data, Samples or similar submittals by the Architect's approval thereof. 1.5.13.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals,to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. 1.5.13.10 The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the City and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The City and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the City and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Paragraph 1.5.13.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. 1.5.13.11 Adequate copies of Shop Drawings for architectural, structural, mechanical and electrical work shall be submitted to the Architect for review in the order of scheduled and upcoming work. 1.5.13.12 The Contractor shall submit complete Drawings, Data and Samples to the Architect at least thirty (30) days prior to the date the Contractor needs the reviewed submittals returned. The Contractor shall be prepared to submit color samples on any key items within sixty (60) days of the execution of the Contract. Once samples of all key items are received,the Architect will fmalize color selections. 17 1.5.13.13 The Contractor shall submit the number of copies of Product Data and Samples which the Contractor and its Subcontractor(s) need for their use. Where Shop Drawings are involved, the Contractor shall submit one (1). high quality reproducible transparency and one (1) opaqueprint of the Shop Drawings for the Architect. The reproducible transparency will be marked by the Architect and/or its consultants. After final review and correction of the submittal, Contractor shall send one (1) corrected set to the Architect and one (1) to each of the Architect's consultants involved with the particular section of Work. The Contractor shall provide composite BIM Model within three (3) months of the issuance of the GMP showing how all piping, ductwork, lights, conduit, equipment, etc. will fit into the ceiling space allotted, including clearances required by the manufacturer, by code, or in keeping with good construction practice. Space for all trade elements must be considered on the same model. BIM shall reflect components shown in a 1/4 inch scale. 1.5.14 Use of Site. 1.5.14.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 1.5.14.2 The Contractor's access to the site, parking, field office location,material and equipment storage,and confinement of said areas shall be coordinated with, and approved by the City prior to the Contractor's mobilization on the site. Once agreed upon,the Contractor shall not adjust or increase any of the above areas without prior consent by the Owner. 1.5.15 Cutting and Patching. 1.5.15.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 1.5.15.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the City or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the City or a separate contractor except with written consent of the City and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the City or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. Any such alteration involving cutting or removal of previously installed work shall be approved in writing by the Contractor and the Architect prior to initiation of the alteration. 1.5.16 Cleaning Up. 1.5.16.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the 18 Project waste materials,rubbish,the Contractor's tools, construction equipment, machinery and surplus materials. The Contractor shall be responsible for protection of the Work and shall repair or replace damaged work at Substantial Completion of the Work. The Contractor shall remove all temporary protections at the completion of the Work. 1.5.16.2 If the Contractor fails to clean up as provided in the Contract Documents,the City may do so and the cost thereof shall be charged to the Contractor. 1.5.16.3 Prior to the Architect's inspection for Substantial Completion, the Contractor shall: clean exterior surfaces exposed to view; remove temporary labels, stains, and foreign substances; polish,transparent and glossy surfaces; clean equipment and fixtures to a sanitary condition; clean roofs; clean the Project site; sweep paved areas and rake clean other surfaces; and remove trash and surplus materials from the Project site. 1.5.17 Access to Work. 1.5.17.1 The Contractor shall provide the City, its contractors, vendors or employees and Architect access to the Work in preparation and progress wherever located. Contractor may impose such safety"rules and regulations" on these entities as are imposed on its own sub-contractors,vendor and employees but shall not require undue or burdensome requirements that Contractor's own sub-contractors,vendors or employees are not also subject to. 1.5.18 Royalties,Patents and Copyrights. t— 1.5.18.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the City and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the City or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. 1.5.19 INDEMNIFICATION AND RELEASE. 1.5.19.1 CONTRACTOR SHALL PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS, EXPENSES,LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON,INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY, TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THIS AGREEMENT. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE, ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT, JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED 19 WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY. 1.5.19.2 The indemnifications contained in Paragraph 1.5.19.1. shall include but not be limited to the following specific instances: (a) The City is damaged due to the act, omission, mistake, fault or default of the Contractor. (b) In the event of any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) In the event of any and all injuries to or claims of adjacent property owners caused by the Contractor,its agents,employees,and representatives. (d) In the event of any damage to the floor,walls,etc.,caused by the.Contractor's personnel or equipment during installation. (e) The removal of all debris related to the Work. (f) The acts and omissions of the subcontractors. (g) The Contractor's failure to comply with applicable federal,state,or local regulations,that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. 1.5.19.3 The indemnification obligations of the Contractor under this Paragraph shall not extend to include the liability of any professional engineer,the architect, their consultants, and agents or employees of any of them arising out of(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change orders, designs or. specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of them,provided such giving or failure to give is the primary cause of the injury or damage. 1.5.19.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Paragraph 1.5.19.1., .such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 1.5.19.5 Contractor's indemnification obligations hereunder shall survive termination, completion, abandonment and final payment. 20 1.5.19.6 The Contractor assumes full responsibility for the Work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property(whether property of either of the parties hereto,their employees, or of third parties)that is caused by or alleged to be caused by, arising out of,or in connection with the Contractor's Work to be performed hereunder. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor,any Subcontractor, or any person or organization directly or indirectly employed by any of them to perform or furnish work on the Project,this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City. 1.5.20 Reproducible Record Drawings. 1.5.20.1 Required as part of Final Completion of the Project, the Contractor shall submit one (1) complete set of drawings with all changes made during construction, including concealed mechanical, electrical, and plumbing items 1.6 Administration of the Contract. 1.6.1 Architect. 1.6.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative or such successor Architect as City may appoint by written notice to Contractor from time to time. 1.6.1.2 City shall notify Contractor when the duties, responsibilities or limitations of authority of the Architect have been modified. 1.6.1.3 If the employment of the Architect is terminated,the City may elect to appoint a replacement Architect, or at its option, elect to complete the Project using another consultant or representative to perform the balance of the Architect's functions on the Work. 1.6.1.4 Except as herein expressly provided, the Contractor shall not. be relieved of its obligation to perform the Work in strict accordance with the Contract Documents by the activities or duties of the Architect. 1.6.2 Architect's Administration of the Contract. 1.6.2.1 Certain portions of the administration of the Contract will be performed by the Architect. The Architect shall not have the authority to act on behalf of the City unless such authority is expressly granted in the Contract Documents, nor shall such authority be implied from any act or representation of the Architect. The City is free to elect to have some of the administration duties set out for the Architect to perform under 21 the Contract Documents performed by a construction manager or by employees of the City. 1.6.2.2 The Architect, as a representative of the City,will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the City informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the City against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, except as provided in Paragraph 1.5.5.1. In no event shall City or any other party have controlover,be in charge of, or be responsible for construction means, methods,techniques, sequences, procedures, or for safety precautions and programs in connection with the Work, since these are solely Contractor's responsibilities. City will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. City will not have control over, be in charge of, and will not be responsible for the acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 1.6.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 1.6.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized,the City and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the City. 1.6.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 1.6.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with Paragraphs 1.15.5.2. and 1.15.5.3., whether or not such Work is fabricated, installed or completed. However,neither this authority of the Architect nor a decision made reasonably and in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment 22 suppliers,their agents or employees, or other persons or entities performing portions of the Work. 1.6.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and.Samples,but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the City, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of its obligations. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 1.6.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Paragraph 1.9.4. 1.6.2.9 The Architect will conduct inspections to determine the date 1 or dates of Substantial Completion and the date of Final Completion, will receive and forward to the City, for the City's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 1.6.2.10 If the City and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. 1.6.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the City or Contractor. The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the time within which interpretations required of the Architect shall be furnished in compliance with this Paragraph 1.6.2.11,then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until thirty(30) days after written request is made for them. 1.6.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. 1.6.2.13 The Architect's decisions on matters relating to all Work will be final if consistent with the intent expressed in the Contract Documents. 23 1.6.3 Claims and Disputes. 1.6.3.1 Definition. A Claim is any demand or assertion by the Contractor that itshould be paid more money than the Contract Sum, as adjusted under the Change Order provisions herein, by the City because of action or inaction on the part of City,Architect, or any party for whom City is responsible, or any party with whom City has separately contracted for other portions of the Project, including but not limited to any demand or assertion that Contractor's performance has been delayed, interrupted or interfered with, that Contractor's performance has been accelerated, constructively accelerated, or suspended, that Contractor's performance has been wrongfully terminated, that the Contract Documents have been misinterpreted, that here has been a failure of payment,that Contractor has encountered concealed or unknown conditions,that Contractor has encountered hazardous materials,that there are problems with the Contract Documents, or the timing of Architectural approvals or decisions, that action of the City have been intentionally wrongful or deceptive in any way to the Work, that the amount of time or money granted in a Construction Change Directive is inadequate, that an item treated as a minor change in the Work should have been treated as a Change Order,that a time extension granted was inadequate, or that Contractor is entitled to any other relief, on any legal theory, related to the Work and the Contract. Nothing contained in this subparagraph shall be construed as creating any Contractor right to make a claim, where no such right otherwise exists. 1.6.3.2 Notice Requirement: Within ten (10) calendar days of the first occurrence of an event that Contractor has any reason to believe might result in a Claim, or within ten(10) calendar days of Contractor's discovery of the first occurrence of the event that Contractor has any reason to believe might result in a Claim, if the first occurrence of the event was willfully hidden from the Contractor, the Contractor shall file a written document clearly captioned "Notice of Claim" with City and Architect. The notice shall clearly set out the specific matter of complaint, and the impact of damages which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the notice. If the impact or damages cannot be assessed as of the date of the notice, the notice shall be amended at the earliest date that is reasonably possible. 1.6.3.2.1 Any Claim or portion of a Claim that has not been made the specific subject of a notice strictly in accordance with the requirements of this Paragraph shall be waived. It is imperative that City have timely, specific notice of any subject, the impact of which City may be in a position to mitigate. 1.6.3.2.2 No course of conduct or dealings between the parties, nor implied acceptance of alteration or additions to the Work or changes to the Contract schedule, shall be the basis for any claim for an increase in the Contract Sum or change in the Contract Time. 1.6.3.3 Claims Handling During Construction: After receipt of a Notice of Claim, the City may elect to refer the matter to the Architect or another party for 24 review. Contractor will attend meetings called to review and discuss the Claim and mitigation of the problem, and shall furnish any reasonable factual backup of the Claim requested. The City may also elect to defer consideration of the Claim until the Work is completed, in which case the same review options shall be available to the City at the completion of the Work. At any stage, the City is entitled to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and if this referral is made, Contractor will take part in the mediation process. The filing, mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of the Work during the pendency of any claim, except termination under City's direction to stop the Work. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. The parties shall share the Mediator's fee and any filing fees equally, and the Mediation shall be held in Brazoria County, Texas. 1.6.3.4 Claims Handling Following Construction: The acceptance of final payment shall constitute a waiver of Claims by the Contractor which have not previously been identified in a timely notice of Claim and specifically reserved in the final Application for Payment. 1.6.3.5 Claims for Concealed or Unknown Conditions. Only if conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or(2)unknown physical conditions of an unusual nature,which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then Contractor shall be entitled to make a Claim if it can satisfy all of the other requirements of Paragraph 1.6. 1.6.3.6 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice and prior approval of City must occur before Contractor may execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 1.12.4. 1.6.3.7 Calculating Claim Amount: In calculating the amount of any Claim,the following standards will apply: (a) No indirect or consequential damages will be allowed. (b) All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses of labor efficiency, or on a comparison of planned man loading to actual man loading, or any other analysis that is used to show damages indirectly. (c) Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong. (d) The maximum daily limit on any recovery for delay shall be the amount established by the Contractor for job overhead costs, defined in the 25 Schedule of Values, divided by the total number of calendar days of Contract Time called for in the original Contract. Absent an overhead amount in the Schedule of Values, the amount estimated by the Contractor for job overhead costs shall be used. (e) The maximum amount of all Claims is expressly agreed to be limited to five percent(5%) of the Contract Sum. 1.7 Subcontractors. 1.7.1 Definitions. 1.7.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The tenn"Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 1.7.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. 1.7.2 Award of Subcontracts and Other Contracts for Portions of the Work. 1.7.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the City, through the Architect, the names of persons or entities (including those who are to furnish labor, materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the City or the Architect, after due investigation, has reasonable objection to any such proposed person.or entity. Failure of the City or Architect to reply promptly shall constitute notice of no reasonable objection. 1.7.2.2 The Contractor shall not contract with a proposed person or entity to whom the City or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 1.7.2.3 If the City or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the City or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute 26 Subcontractor's Work. However, no increase in the Contract.Sum,or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 1.7.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the City or Architect makes reasonable objection to such substitute. 1.7.2.5 The Contractor shall submit the list of proposed Subcontractors on a form provided by the Architect. The Contractor may obtain blank copies from the Architect. 1.7.2.6 The Contractor and Subcontractors are required to visit the site and completely familiarize themselves with the existing conditions prior to the submission of Proposal(s). No additional increase in the Contract amount will be provided when existing or known conditions require a certain amount of work to comply with the intent of the Contract Documents. 1.7.3 Sub-contractual Relations. 1.7.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the City and Architect. Each subcontract agreement shall preserve and protect the rights of the City and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 1.7.4 Contingent Assignment Of Subcontracts. 1.7.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the City provided that: (a) assignment is effective only after termination of the Contract by the City for cause pursuant to Paragraph 1.16.2. and only for those subcontract agreements which the City accepts by notifying the Subcontractor and Contractor in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 27 1.7.4.2 City shall only be responsible for compensating Subcontractor for Work done or materials furnished after the date City gives written notice of its acceptance of the subcontract agreement. 1.7.4.3 Each Subcontract and assignment shall provide that the City shall only be responsible to the Subcontractor for those services and materials furnished by the Subcontractor subsequent to the City's exercise of any rights under this contingent assignment. 1.7.5 Responsibility. 1.7.5..1 Contractor shall be fully responsible for the performance of its Subcontractor, including those selected or approved by the City. 1.8 Construction by Owner or by Separate Contractors. 1.8.1 Owner's Right to Perform Construction and to Award Separate Contracts. 1.8.1.1 The City reserves the right to perform other construction work, maintenance and repair work near or adjacent to the site during the time period of the Work. Owner may perforin other Work with separate contractors. City shall have access to the site at all times. Any contractor performing work on the site whether for the project or for other projects that require access through this site shall maintain the same insurance and indemnity limits as those of the Contractor. 1.8.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 1.8.2 Mutual Responsibility. 1.8.2.1 The Contractor shall afford the City and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 1.8.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the City or a separate contractor,the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the City's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 1 1.8.2.3 The City shall be reimbursed by the Contractor for costs incurred by the City which are payable to a separate contractor because of delays, 28 improperly timed activities or defective construction of the Contractor. 1.8.2.4 The Contractor shall promptly remedy damage wrongfully _l caused by the Contractor to completed or partially completed construction or to property of the City or separate contractors as provided in Paragraph 1.12.2.5. 1.8.2.5 The City and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 1.5.15. 1.8.3 Owner's Right to Clean Up. 1.8.3.1 If a dispute arises among the Contractor, separate contractors and the Cityas to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the City may clean up and the Architect will allocate the cost among those responsible. 1.9 Changes in the Work. 1.9.1 General. Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work. The Contract Sum and/or Contract Time may be increased for changes in the Work if the provisions of this Paragraph have been met. 1.9.1.1.1 No change in the Contract Sum and/or Contract Time will be allowed for a change in the Work unless prior to performing the changed Work, the Contractor has provided the City in writing a proposal for any change in price and/or change in Contract Time caused by the change in Work, and a Change Order is subsequently executed. A field directive or field order shall not be recognized as having any impact upon the Contract Sum or the Contract Time, and Contractor shall have no Claim therefore, unless it shall, prior to complying with the directive and in any event within fourteen (14) calendar days of receiving the directive, submit a change proposal to the City, and a Change .Order is subsequently executed, or Contractor satisfies the requirements of Paragraph 1.6.3. Contractor's proposal shall be subject to City's acceptance and remain firm and irrevocable for a period of forty-five (45) calendar days after receipt by City. Thereafter, Contractor reserves the right to resubmit such change proposal upon different pricing and time of performance terms. 1.9.1.2 A Change Order shall be based upon agreement among the City, Contractor and Architect; a Construction Change Directive requires agreement by the City and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. 1.9.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless 29 otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work. Except as permitted in Paragraph 1.9.3., a change in the Contract - Sum or the Contract Time shall be accomplished only by Change Order. 1.9.1.4 The Contractor, upon receipt of written notification by the Architect of a proposed item of change in the Work, shall prepare as soon as possible a Change Proposal in such form or forms as directed by the Architect. (a) Each separate Change Proposal shall be numbered consecutively and shall include material costs, labor costs, fees, overhead and profit. The Change Proposal shall specify all costs related to the proposed change in the Work, including any disruption or impact on performance. (b) The Subcontractor's itemized accounting shall be included with the Change Proposal. (c) If a Change Proposal is returned to the Contractor for additional information or if the scope of the proposed change in the Work is modified by additions, deletions or other revisions, the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the. Architect. (d) A revised Change Proposal shall bear the original Change Proposal number suffixed by the letter "R" to designate a revision in the original Change Proposal. If additional revisions to a revised Change Proposal are necessary, each subsequent revision shall be identified by an appropriate numeral suffix immediately following the"R" suffix. (e) Upon written approval of a Change Proposal by the City,the Architect will prepare an appropriate Change authorizing such change in Work. (f) The Contractor shall request extensions of Contract Time due to changes in the Work only at the time of submitting its Change Proposal. Contractor's failure to do so shall represent a waiver of any right to request a time extension. 1.9.2 Change Orders. 1.9.2.1 A Change Order is a written instrument prepared by the Architect and signed by the City, Contractor and Architect, stating their agreement upon all of the following: (a) change in the Work; and the amount of the adjustment, if any, in the Contract Sum; (b) the extent of the adjustment, if any, in the Contract Time. 1.9.2.2 Methods used in determining adjustments to the Contract Sum 30 may include those listed below: (a) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; (b) unit prices stated in Contract Documents or subsequently agreed upon; (c) cost shall be determined in a manner agreed upon by the parties and a mutually acceptable fixed fee, or the percentage fee established at Subparagraph 1.9.3.6., or (d) as provided in Subparagraph 1.9.3.6. 1.9.2.3 Agreement on any Change Order shall constitute a final settlement of all Claims by the Contractor directly or indirectly arising out of or relating to the change in Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs and impact costs associated with such change and any and all adjustments to the Contract Sum and the Contract Time. 1.9.3 Construction Change Directives. 1.9.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the City and Architect, directing a change in the Work prior to agreement on adjustment,if any, in the Contract Sum or Contract Time, or both. The City may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions,the Contract Sum and Contract Time being adjusted accordingly. 1.9.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. 1.9.3.3 The Construction Change Directive shall include a unilateral change in the Contract Sum and/or Contract Time reflecting the City's view of the appropriate change in the Contract Sum and/or Contract Time for the change in Work covered by the Construction Change Directive. Until agreement is reached by the City and Contractor on these issues, the changes in Contract Sum and Contract Time set out in the Construction Change Directive shall be used for Schedule of Values, payment and scheduling purposes. 1.9.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 1.9.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective 31 immediately and shall be recorded as a Change Order. 1.9.3.6 In the absence of an agreement between City and Contractor on the proper change to the Contract Sum or Contract Time because of a change in the Work, Contractor may treat the matter as a Claim under Paragraph 1.6.3. In such event,the Contractor shall be entitled to recover only the amount by which the Cost of the Work has been reasonably increased over the Cost of Work without the change in the Work,plus five percent(5%). 1.9.3.7 Pending final determination of the cost of a Construction Change Directive to the City, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the City for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. 1.9.4 Minor Changes in the Work. 1.9.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the City and Contractor. The Contractor shall carry out such written orders promptly. 1.9.5 Changes Funded By Allowances. 1.9.5.1 Allowances balances may be used to fund changes in the Work. The Contractor will not be allowed an overhead and profit mark-up when changes in the Work are funded by one of the Allowances. 1.10 Prosecution and Progress. 1.10.1 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 his Work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction; provided, however, that the order and the time of prosecution shall be such that the Work shall be Substantially Completed as a whole and in part, in accordance with this Contract and the Contract Time; provided, also, that when the OWNER is having other work done, either by contract or by his own forces, the Architect may direct the time and manner of constructing the Work done under this Contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized, and the CONTRACTOR shall fully cooperate and coordinate its Work with OWNER or such other contractors. 1.10.1.1 The CONTRACTOR shall submit, an updated schedule with every pay estimate for review by the Architect, schedules which shall show the 1 order in which the CONTRACTOR proposes to carry on the Work, with dates on which the CONTRACTOR will start the several parts of the work, and estimated 32 dates of completion of the several parts. Such schedules shall show completion of the Work within the Contract Time, and/or shall show such recovery efforts as CONTRACTOR intends to undertake in the event Substantial Completion of the Work is delayed. 1.10.1.2 EXTENSION OF TIME. The CONTRACTOR agrees that he has submitted his Bid Proposal 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 as hereinafter set forth, and that he shall not be entitled to, nor will he request, an extension of time on this Contract, except when Substantial Completion of the Work has been delayed solely by strikes, lockouts, fires, Acts of God, or by any other cause which the Architect shall decide justifies the delay. The CONTRACTOR shall give the Architect prompt notice, in writing and within three (3) days of the start of any such delay, of the cause of any such delay, and its estimated effect on the Work and the schedule for completion of the Work. Upon receipt of a written request for an extension of the Contract Time from the CONTRACTOR, supported by relevant and all requested documentation, the Architect shall submit such written request, together with his written recommendation, to the OWNER for consideration. If the delay is not attributable in whole or in part to any act or omission of CONTRACTOR, its subcontractors or suppliers, and if the OWNER determines that CONTRACTOR is entitled to an extension of time under the terms of the Contract, the OWNER shall grant an extension of time for Substantial Completion of the Work, sufficient to compensate ( for the delay, and such extension of time shall be CONTRACTOR's sole and exclusive remedy, except as may be otherwise provided herein. No extensions of Contract Time shall be made for delays occurring prior to the Contractor's mobilization as defined in the City's Specifications. The Contract Time as defined.in the Bid Proposal and other sections herein incorporates 40 Rain Days per calendar year or an average of 3.33. days per calendar month. The CONTRACTOR is required to keep record of all weather related delays and to submit the monthly count on each Pay Application. The Owner's Representative shall review and sign off on this record as a part of the Pay Application approval process every month. If, during preparation of the Balancing Change Order, the status of the work progress requires an extension of the Contract Time, Impact Days shall be added to the Completion Date equal to the total number of Weather or Impact Days approved less the original 40 days resident in the original Contract Time. The Addition of Weather or Impact Days will only alter the Contract Time when added by Change Order. If the Work is completed prior to the Completion Date,No Days will be added. The addition of Weather or Impact Days shall be the CONTRACTOR's sole remedy for delays to the completion of the Work and their addition to the Contract Time shall not affect the Contract Price through any "per diem" adjustment to the General. Conditions costs, Temporary Facilities costs or any other costs associated with the extension of the Contract Time. 1.10.1.3 HINDRANCES AND DELAYS. In executing the Contract, the CONTRACTOR agrees that in undertaking to complete the Work within the time herein fixed, he has taken into consideration and made allowances for all 33 interference, disruption, hindrances and delays incident to such Work, whether ti growing out of delays in securing material, workmen or otherwise. No claim shall be made by the CONTRACTOR for damages, loss, costs or expense resulting from interference, disruption, hindrances or delays from any cause during the progress of any portion of the Work embraced in this Contract, except where the Work is stopped or suspended by order of the OWNER's representative and such stoppage or suspension is not attributable to any act or omission of CONTRACTOR. 1.10.1.4 SUSPENSION OF WORK. OWNER may, without cause, order the CONTRACTOR in writing to suspend the Work, in whole or in part, for such period of time as OWNER may request. The Contract Price and/or Contract Time shall be adjusted for any increase in the cost of or the time required for performance of the Work caused by such suspension. No adjustment shall be made to the extent performance was or would have been suspended by a cause for which CONTRACTOR is responsible, or to the extent an adjustment is made or denied under another provision of the Contract Documents. 1.10.1.5 CHANGE OF CONTRACT TIME: The Contract Time may only be changed by a Change Order. Any claim for an adjustment of Contract Time shall be based on written notice delivered by the party making such claim to the other party and to the Architect promptly, but in no event later than ten (10) days after the event-giving rise to the claim. Notice of the extent of the claim, along with supporting data, shall be delivered within thirty (30) days of the occurrence and shall be accompanied by the claimant's written representation that ) the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in Contract Time shall be determined by the ARCHITECT in accordance with the requirements of this paragraph. Contractor shall submit, as a minimum,the following data: A. Information showing that the time requested is not included in the existing Contract and in addition to the Contract. B. Information documenting that the number of days requested is accurate for the event. C. Revised, current construction schedule showing that the time requested affects the project's critical path. 1.10.1.6 DELAYS BEYOND OWNER'S AND CONTRACTOR'S CONTROL: Where CONTRACTOR is prevented from completing any part of the Work within the Contract Time due to delays beyond the control of the OWNER and the CONTRACTOR, including, but not limited to, interference by utility owners or other contractors performing other work, Contractor shall be entitled to an extension of the Contract Time in an amount equal to the time lost. CONTRACTOR shall not be entitled to any increase in Contract Price as a result of such delays. IN NO EVENT SHALL OWNER BE LIABLE TO CONTRACTOR FOR DAMAGES ARISING OUT OF OR RESULTING FROM (i) Delays caused by, or within the control of, the CONTRACTOR, or (ii) Delays beyond the control of both parties including, but 34 not limited to, interference by utility owners or other contractors performing other work, fires, floods, epidemics, abnormal weather conditions, acts of God, even if such delays are due in part to the negligence, other fault, breach of contract or warranty, violation of the Texas Deceptive Trade Act, or strict liability without regard to fault of OWNER. An extension of Contract time shall be CONTRACTOR's sole and exclusive remedy for any such delays. Delays attributed to, and within the control of, a Subcontractor or Supplier shall be deemed to be delays within the control of the CONTRACTOR. 1.11 Payments and Completion. 1.11.1 Contract Sum. 1.11.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the City to the Contractor for performance of the Work under the Contract Documents. 1.11.2 Schedule of Values. 1.11.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect a Schedule of Values fairly allocating the various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as reasonably required by the Architect. Once `` approved by the Architect and updated for changes in the Work, the Schedule of Values shall be used as a basis for reviewing the Contractor's Applications for Payment and is not to be taken as evidence of market or other value. The Schedule of Values shall not overvalue early job activities. The Contractor's Fee shall be shown as a single separate item. The Schedule of Values shall follow the trade divisions of the Specification so far as practicable. In order to facilitate the review of Applications for Payment,the Schedule of Values shall be submitted on forms approved by the Owner, and shall include the following: (a) Contractor's costs for Contractor's Fee, bonds and insurance,mobilization, etc., shall be listed as individual line items. (b) Contractor's costs for various construction items shall be detailed. For example, concrete work shall be subdivided into footings, grade beams, floor slabs, paving, etc. These subdivisions shall appear as individual line items. (c) On major subcontracts, such as mechanical, electrical and plumbing, the Schedule of Values shall indicate line items and amounts in detail (for example: underground,major equipment, fixtures,installation of fixtures, start up, etc.). (d) Costs for subcontract Work shall be listed without any 35 addition of Contractor's costs for overhead,profit or supervision. (e) Where payment for stored materials may be requested prior to installation,material and labor shall be listed as separate line items. (f) Sample pages from an approved Schedule of Values are included following this document. 1.11.3 Applications for Payment. 1.11.3.1 At the time specified in the Agreement, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the Schedule of Values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the City or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. Unless otherwise agreed, the Contractor shall submit requests for payment through the City's project management software (ProTrak) using the APPLICATION AND CERTIFICATE FOR PAYMENT; showing in detail the amounts requested, etc., as necessary. All blank spaces must be completed and the signatures of the Contractor shall signify his attestation that said Application for Payment is true, accurate and complete. By submitting its Application for Payment, the Contractor certifies that the individual signing the application is authorized to do so. Additionally, if ( the Contractor prepares its Application for Payment, any supplemental supporting documentation should be provided and uploaded through the ProTrak software. Applications for Payment may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier. 1.11.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the City, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the City's interest,and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. Applications for Payment shall separate references to any and all materials and/ or equipment that require separate payment for materials stored but not installed as individual line items. These items shall be specifically identified in the Original Schedule of Values as well as where this material or equipment will be incorporated into the Work. 1.11.3.3 Upon payment by the City of the invoiced cost, title to all such materials and equipment shall irrevocably pass to the City. The Contractor warrants that title to all materials and equipment covered by an Application for Payment will 36 pass to City upon the receipt of payment by the Contractor. Such title shall be free and clear of all liens, claims, security interests or encumbrances. No work, materials or equipment covered by an Application for Payment shall be subject to an agreement under which an interest is retained or encumbrance is attached by the seller, the Contractor, or other party. 1.11.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the City no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the City shall,to the best of the Contractor's knowledge, information and belief,be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors,material suppliers, or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. Each Application for Payment shall be accompanied by a signed and notarized Partial Release of Lien/All Bills Paid affidavit specifically covering the Work performed and any materials and equipment included and billed in the accompanying Application for Payment. 1.11.4 Certificates for Payment. 1.11.4.1 The Application for Payment will be reviewed first by the Architect who will certify to the City that portion, if any, of the Application for Payment it has determined is properly due. In the event that the Architect believes that payment should be withheld, in whole or in part, it will notify the City and Contractor of the basis of this 1 view as provided in Subparagraph 1.11.5.1. 1.11.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the City, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the City to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 1.11.4.3 The issuance of a Certificate of Payment shall constitute a recommendation to the City in respect to the amount to be paid. This recommendation is not binding on the City if City knows of other reasons under the Contract why payment should be withheld. 37 1.11.4.4 The Architect will affix his signature to the same form described in Paragraph 1.11.4.1. to signify his certification of payment provided the application is otherwise satisfactory. 1.11.5 Decisions to Withhold Certification. 1.11.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the City, if in the Architect's opinion the representations to the City required by Paragraph 1.11.4.2. can not be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and City as provided in Paragraph 1.11.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the City. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued,to such extent as may be necessary in the Architect's opinion to protect the City from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Paragraph 1.5.5.2.,because of (a) defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the City is provided by ) the Contractor; (c) failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; (d) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (e) damage to the City or another contractor; (f) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or (g) persistent failure to carry out the Work in accordance with the Contract Documents. 1.11.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. 1.11.6 Progress Payments. 1.11.6.1 After the Architect has issued a Certificate for Payment, the City shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. If the City believes the Contractor is not 38 current in its legitimate obligations to suppliers, laborers and/or Subcontractors on the % l Project, City may (but is not obligated to)withhold payment until it receives partial or final releases, or other reasonable proof from the Contractor that this situation does not exist. 1.11.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the City, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub- subcontractors in a similar manner. City is not obligated to monitor payments to Subcontractors or Sub-subcontractors, and nothing in this paragraph shall create any right on the part of a Subcontractor or Sub-subcontractor against City. 1.11.6.3 Neither the City nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor or Sub-subcontractor. 1.11.6.4 Payment to material suppliers shall be treated in a manner similar to that provided in Paragraphs 1.11.6.2., 1.11.6.3. and 1.11.6.4. 1.11.6.5 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the City shall not constitute acceptance of Work not in accordance with the Contract Documents. 1.11.7 Failure of Payment. 1.11.7.1 If the City incurs any costs and expenses in curing any default of the Contractor or correcting defective Work, the City shall have an absolute right to offset such amount against the Contract Sum under this Contract, and may, in the City's sole discretion, elect either to:•(1) deduct an amount equal to that to which the Owner is entitled, or (2) issue a written notice to the Contractor reducing the GMP by an amount equal to that to which the Owner is entitled. 1.11.8 Substantial Completion. 1.11.8.1 When the Contractor considers that the Work, or a portion thereof which the City agrees to accept separately, is substantially complete, the Architect and City shall review the punch list prepared by Contractor and supplement the list as necessary. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 1.11.8.1.1 The Contractor's superintendent shall participate in the preparation of the Contractor's punch list that is submitted to the Architect and City for supplementation. Upon receipt, the Architect shall perform a spot review to determine the adequacy and completeness of the Contractor's punch list. Should the Architect determine that the Contractor's punch list lacks sufficient detail or requires extensive supplementation,the punch list will be returned to the Contractor for further inspection and revision. The date of Substantial Completion will be delayed until the punch list submitted is a reasonable 39 representation of the work to be done. 1.11.8.1.2 Upon receipt of an acceptable Contractor's punch list, the Contractor's superintendent shall accompany the Architect, its Consultants and the City(at its discretion) during their inspections and the preparation of their supplements to the Contractor's punch list. The superintendent shall record or otherwise take note of all supplementary items. The Architect will endeavor to furnish to the Contractor typed, hand written or recorded supplements to the punch list in a prompt manner; however, any delay in the Contractor's receiving said supplements from the Architect shall not be cause for a claim for additional cost or extension of time. 1.11.8.2 When the Contractor notifies Architect that it has completed or corrected items on the punch list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's punch list,which is not sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work or designated portion thereof for its intended use,the Contractor shall,before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. Any further inspections by the Architect for the purpose of determining the Project is Substantially Complete shall be at Contractor's cost and the City may deduct such cost from \ any amount payable to Contractor hereunder. r. 1.11.8.3 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the City and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 1.11.8.4 The Certificate of Substantial Completion shall be submitted to the City and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the City, in its sole discretion, may make payment of retainage, or a portion thereof as determined in the City's sole discretion, applying to such Work or designated portions thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. 1.11.8.5 Upon final completion of all remaining outstanding or incomplete work, identified in the Certificate of Substantial Completion, the Architect shall issue a Certificate of Final Completion and Acceptance. Upon such issuance, the ._ City shall release all remaining retainage, if any. 1.11.8.6 The Contractor shall keep all required insurance in full force, 40 and provide payment for all utilities, until the Certificate of Substantial Completion and Acceptance is issued, and all Work is accepted by the City in writing, regardless of the stated date of Substantial Completion. Such Acceptance shall not be unreasonably withheld. Contractor shall provide City a minimum of 3 days written notice of Contractor's planned utility contract termination date. 1.11.9 Partial Occupancy or Use. 1.11.9.1 The City may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Paragraph 1.13.3.1. and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the City and Contractor have accepted in writing the responsibilities assigned to each of them for payments,retainage,if any,security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. 1.11.9.2 Immediately prior to such partial occupancy or use, the City, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 1.11.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion orportions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 1.11.10 Final Completion and Final Payment. 1.11.10.1 Upon City's receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a fmal Application for Payment,the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the fmal Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Paragraph 1.11.10.2. as precedent to the Contractor's being entitled to fmal payment have been fulfilled. Prior to fmal payment, the Contractor shall submit to the Architect the following completed forms: (a) Contractor's Affidavit of Payment of Debts and Claims; (b) Contractor's Affidavit of Release of Liens; 41 (c) Consent of Surety to Final Payment(if applicable); (d) Subcontractor's Unconditional Releases — each signed and notarized on a single piece of paper; (e) Maintenance and inspection manuals—three(3) sets of each bound in a 3 inch"D-slant"ring binder; (f) Final list of subcontractors} (g) one (1) complete set of marked-up copies of the Drawings and Specifications accurately showing the Project as constructed. Such Specifications and Drawings shall be marked to show all changes and modifications that have been incorporated into the Work as performed; (h) other data establishing payment or satisfaction of obligations, such as receipts,releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract,to the extent and in such form as may be designated by the City; and (i) any other"Closeout Documents" required under the Contract Documents. Documents identified as affidavits must be notarized. All manuals will contain an index listing the information submitted. The index sections will be divided and identified by tabbing each section as listed in the index. Upon request, the Architect will furnish the Contractor with blank copies of the forms listed above. Final payment, constituting the entire unpaid balance of the Contract Sum shall be paid by the City to the Contractor thirty(30) days after Substantial Completion of the Work, unless otherwise stipulated in the Certificate of Completion, provided the Contract is fully performed, and Final Certificate of Payment has been issued by the Architect. The City may accept certain portions of the Work as being complete prior to the acceptance of the entire Project. If certain areas are accepted by the City as being completed, and if the Contractor has completed all of the requirements for final payment of the portion of Work, the City may, but is not required to, release retainage for that area/portion of Work. Amounts of retainage shall be agreed upon by both City and Contractor prior to fmal acceptance of these areas. 1.11.10.2 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the City shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the.Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing fmal payment, except that it shall not constitute a waiver of claims. 42 1:11.10.3 Acceptance of final payment by the Contractor shall constitute a waiver of claims by Contractor except for any Claims then pending that comply with the requirements of Paragraph 1.6.3. 1.12 Protection of Persons and Property. 1.12.1 Safety Precautions and Programs. 1.12.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all necessary safety precautions and programs in connection with the performance of the Contract. 1.12.2 Safety of Persons and Property. 1.12.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (a) employees on the Work and other persons who may be affected thereby including but not limited to the City's employees, invitees and the general public; (b) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and (c) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 1.12.2.2 The Contractor shall give notices and comply with applicable laws, ordinances,rules,regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. 1.12.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards,promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 1.12.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and cavy on suchactivities under supervision of properly qualified personnel. When use or storage of explosives or other hazardous materials or equipment or unusual construction methods are necessary,the Contractor shall give the City and Architect reasonable advance notice of the presence or use of such materials, equipment or methods. 1.12.2.5 The Contractor shall promptly remedy damage and loss (other 1 ) than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Paragraphs 1.12.2.1(b). and 1.12.2.1.(c). caused in whole or in part 43 • by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them,or by anyone for whose acts they may be liable and for which the Contractor is responsible under Paragraphs 1.12.2.1, except damage or loss attributable to acts or omissions of the City or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 1.5.19.6. 1.12.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor.in writing to the Owner and Architect. 1.12.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 1.12.2.8 Suspension of all or a portion of the Work,for anyreason,shall not relieve the Contractor of its obligations under Paragraph'1.12.2. 1.12.2.9 The Contractor shall promptly report in writing to the City and Architect all accidents arising out of or in connection with the Work which cause death, personal injury, or property damage, giving full'details and statement of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to City and Architect. 1.12.2.10 . The Contractor shall be responsible for the protection and security of the Work and the Project,until it receives written notification that the Substantial Completion of the Work has.been accepted by the City unless otherwise provided in the Certificate of Substantial Completion. 1.12.3 Hazardous Materials. 1.12.3.1 . Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (as defined in 1.12.3.1.3.), except in accordance with applicable. Environmental Laws. Further,. in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of,the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 1.12.3.1.3). In the event Contractor engages in any of the activities prohibited in this Paragraph 1.12.3.1. to thefullest extent permitted by law, Contractor hereby indemnifies and holds City,Architect and all of their respective officers, agents , and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this Paragraph 1.123. 1.12.3.2 In the event Contractor encounters 'on the Project site any Hazardous Substance, or what Contractor may reasonably believe to be a Hazardous Substance, and which is being introduced to the Work, or exists on the Project site, in a 44 manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City and Architect in writing. The Work in the affected area shall not thereafter be resumed except bywritten authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all of their -respective officers, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages:and attorneys' fees, arising out of, incidental to or resulting from Contractor's failure to stop the Work. 1.12.3.3 City and Contractor may enter into a separate agreement. and/or Change Order for Contractor to remediate and/or render harmless pre-existing Hazardous Substances, but Contractor shall not -be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless. Contractor shall be solely responsible for all costs of remediation associated with Hazardous Substances imported, with or without Owner's knowledge, to the work site by Contractor or any Subcontractor. 1.12.3.4 For purposes of this Agreement, the term -"Hazardous Substance" shall mean and include any element constituent, chemical, substance, compound, or mixture, which are defined as a hazardous substance by any local, state or federal law, . rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), The Resource . Conservation and: Recovery Act ("RCRA"), The Toxic Substances Control Act ("TSCA"), TheClean Water Act ("CWA"), The Clean Air Act ("CAA"), the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as `Environmental Laws"). It is the Contractor's responsibility to comply with Paragraph 1.12.3.1 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such,amendments. 1.12.4 Emergencies. 1.12.4.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 1.6.3. and Paragraph 1.9. _ 1.13 Insurance and Bonds. 45 - 1.13.1 Contractor's Liability Insurance. 1.13.1.1 The Contractor shall purchase and maintain insurance as shown in ATTACHMENT 1, OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR and specific project related insurance requirements as noted in ATTACHMENT 2, SPECIAL CONDITIONS OF THE AGREEMENT. 1.13.2 Certificates of Insurance. 1.13.2.1 Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and must be provided in accordance with Section 1.13.1.1.1 and are attached as EXHIBIT A, Contractor's Insurance.Certificates including Builder's Risk. 1.13.3 Property Insurance. 1.13.3.1 Partial occupancy or use in accordance with Paragraph 1.11.9. shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The City and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 1.13.3.2 Loss of Use Insurance. The City, at the City's option, may purchase and maintain such insurance as will insure the City against loss of use of the City's property due to fire or other hazards,however caused. 1.13.3.3 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the City shall,at City's option,include such insurance,and the cost thereof shall be charged to the Contractor by appropriate Change Order. 1.13.3.4 If during the Project construction period the City insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the City shall waive all rights for damages caused by fire or other causesof loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 1.13.3.5 A loss insured under City's property insurance shall be adjusted by the City and made payable to the City for the insureds, as their interests may appear, subject to requirements of Paragraph 1.13.3. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. 1.13.3.6 If after such loss no other special agreement is made and unless the City terminates the Contract for convenience, replacement of damaged property shall be 46 performed by the Contractor after notification of a Change in the Work in accordance with Paragraph 1.9. 1.13.4 Performance Bond and Payment Bond. 1.13.4.1 Pursuant to Chapter 2253 of the Texas Government Code, for all public works contracts with governmental entities, performance and payment bonds are required when the Contract Amount exceeds $50,000. In the event a performance or payment bond or both is required either by law or in the City's discretion, such bonds shall be executed in accordance with all requirements of Article 7.19-1 of the Texas Insurance Code, all other applicable law, and the following: (a) The Contractor shall execute performance and payment bonds for the full Contract Amount in the forms attached hereto as Exhibit B and C. (b) The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds. (c) The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents, which are attached as Exhibit B and C, together with valid original powers of attorney, at the time of execution of this Agreement and prior to the commencement of Work. Copies of the executed bonds shall be attached hereto as Exhibit B and C. (d) The performance and payment bonds shall remain in effect for a period of one (1) year after Final Completion of the Work and shall be extended for any warranty work to cover the warranty period. (e) If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds, which bond or bonds shall assure performance or payment as required. 1.13.4.2 The Contractor may make such changes and alterations as the City may require in the.Work or any part thereof without affecting the validity of this Agreement and any accompanying bond. If such changes or alterations diminish the quantity of the Work to be done,they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any Work already done or material already used in said Work, then the City shall•compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. 1.14 Uncovering and Correction of Work. 1.14.1 Uncovering of Work. 47 1.14.1.1 If a portion of the Work is covered contrary to the Architect's request, required inspection, or contrary to requirements in the Contract Documents, the Work must, if required in writing by the Architect, be uncovered for the Architect's examination or inspection of the work and be replaced at the Contractor's expense without change in the Contract Time.' 1.14.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order,be at the City's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense. 1.14.2 Correction of Work. 1.14.2.1 Before or After Substantial Completion. 1.14.2.1.1 The Contractor shall promptly correct Work rejected by.the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. 1.14.2.2 After Substantial Completion. 1.14.2.2.1 In addition to the Contractor's obligations under Paragraph 1.5.7., if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Paragraph 1:11.9.1., or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the City to do so unless the City has previously given the Contractor a written acceptance of such particular condition. The City shall give such notice promptly after discovery of the condition. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the City or Architect, the City may correct it in accordance with Paragraph 1.4.5. The "prompt" correction of defective work by the Contractor after receipt of notification from the City as described above shall be defined as follows: (a) The Contractor shall make written response to the City within twenty-four(24)hours of receipt of the City's notice, acknowledging receipt of the notice and providing the proposed schedule to conduct corrective work. Corrective work shall not interfere with the City's normal operation and use of the Project,unless expressly approved by the City; 48 (b) For corrective work which is not a life safety issue or which will not, by the nature of the defect, cause subsequent damage to the Project, corrective work shall be completed within fourteen(14) calendar days; (c) For corrective work which by its nature may cause subsequent damage to the Project, corrective work required to prevent subsequent damage shall be completed within twenty-four (24) hours, and if such work is a temporary repair,permanent repair of the corrective work shall be completed within seven (7) calendar days. The Contractor shall also correct all subsequent damage caused by such corrective work; (d) For corrective work which affects services to, and ordinary use of the Project, corrective work shall be completed within twenty-four (24) hours, and if such work is a temporary repair, permanent repair of the corrective work shall be completed within seven(7) calendar days; and (e) The time frames stated above for completion of permanent corrective work shall be equitably adjusted as required for legitimate delays caused by weather delays, material acquisition and other factors beyond the Contractor's direct control. 1.14.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 1.14.2.2.3 These obligations under Subparagraph 1.14.2.2. shall survive acceptance of the Work under the Contract and termination of the Contract. The period for any Work corrected pursuant to Paragraph 1.14.2. shall be extended for a period of one year after the date said corrective work is completed. 1.14.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the City. 1.14.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 1.14.2.4.1 Where non-conforming Work is found, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits to the Architect's satisfaction. Additional testing, sampling, or inspecting needed to define nonconforming Work shall be at the Contractor's expense, and performed by the City's testing laboratory if such services are reasonably required by the Architect. All corrected Work shall be retested at the Contractor's expense. Extra architectural or other services 49 required to analyze non-conforming Work shall be paid for by the Contractor. of 1.14.2.5 Nothing contained in Paragraph 1.14.2: shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Nothing contained in Paragraph 1.14.2. is intended to limit or modify any obligations under the law or under the Contract Documents, including any warranty obligations, expressed or implied. 1.14.3 Acceptance of Nonconforming Work. 1.14.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the City may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment: shall be effected whether or not final payment has been made. 1.15 Miscellaneous Provisions. 1.15.1 Governing Law. 1.15.1.1 This Contract and any disputes related to the Work shall be governed by the law of the State of Texas, and any disputesshall be resolved in Brazoria County, Texas. 1.15.2 Successors and Assigns. 1.15.2.1 The City and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Contractor shall not assign the Contract as a whole, or in part, without written consent of the City. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 1.15.3 Written Notice. 1.15.3.1 Written notice shall be deemed to have been served only if the writing is delivered to the addressees set out below, or to such other address as has been previously clearly identified in writing by the addressee, or if delivered by mail or in form of electronic transmission to that office,or sent by registered or certified mail to that address. City: City of Pearland 3519 Liberty Drive Pearland, Texas 77582 Attn:Engineering&Projects i Contractor: Durotech, Inc. 11931 Wickchester, Suite 205 50 Houston,Texas 77043 r't� 1.15.4 Rights and Remedies. 1.15.4.1 No action or failure to act by the City, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 1.15.5 Tests and Inspections. 1.15.5.1 Tests, inspections and approvals of,portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at appropriate times. Unless otherwise provided,the Contractor shall make scheduling arrangements for such tests, inspections and approvals with an independent testing laboratory employed by the City for this purpose, or with the appropriate public authority. City shall bear the normal costs of these services, but not any excess costs attributable to Contractor-caused scheduling problems, or other Contractor error. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so the Architect may observe such procedures. 1.15.5.2 If the Architect, City or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Paragraph 1.15.5.1., the Architect will, upon written authorization from the City, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the City, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Paragraph 1.15.5.3., shall be at the City's expense. 1.15.5.3 If such procedures for testing, inspection or approval under Paragraphs 1.15:5.1 and 1.15.5.2. reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be kept and logged by the Contractor in ProTrak. All testing reports will be made available to all parties. 1.15.5.4 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. 1.15.5.5 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 1.16 Termination or Suspension of the Contract. 51 1.16.1 Termination by the Contractor. 1.16.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of ninety(90) consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: (a) issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; (b) an act of government, such as a declaration of national emergency which requires all Work to be stopped; or (c) because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Paragraph 1.11.4.1., or because the City has not made payment on a Certificate for Payment within the time stated in the Contract Documents,provided notice is given as required under Subparagraph 1.11.4.1. 1.16.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the City as described in Paragraph 1.16.3. constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365- day period,whichever is less. 1.16.1.3 If the Work is stopped for ninety(90) consecutive days for any reason described in Paragraph 1.16.1.1. or 1.16.1.2.,the Contractor may,upon fourteen(14) days' written notice to the City and Architect, terminate the Contract and recover from the City payment for Work. 1.16.1.4 . Notwithstanding anything to the contrary contained herein or in the other Contract.Documents, the City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination described in Subparagraphs 1.16.1.1., 1.16.1.2., and 1.16.1.3. 1.16.2 Termination by the Owner for Cause. 1.16.2.1 The City may terminate the Contract if the Contractor: (a) refuses or fails to supply enough properly skilled workers or proper materials; (b) fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; (c) disregards laws, ordinances, or rules, regulations or orders 52 of a public authority having jurisdiction; (d) otherwise is guilty of substantial breach of a provision of the Contract Documents; (e) fails to furnish the City, upon request, with assurances satisfactory to the City evidencing the Contractor's ability tocomplete the Work in compliance with all the requirements of the Contract Documents; (f) fails to proceed continuously and diligently with the construction and completion of the Work, except_as_permitted under the Contract Documents; or (g) fails to provide all required policies of insurance and/or bonds. 1.16.2.2 When any of the above reasons exist, the City may without prejudice to any other rights or remedies of the City and after giving the Contractor and the Contractor's surety, if any, seven days written notice of the specific default by Contractor and an opportunity to cure said default. If Contractor fails to cure default, after an additional sevenday notice the Owner may terminate employment of the Contractor and may, subject to any prior rights of the surety: (a) take possession of the site and of all materials, equipment, tools,and construction equipment and machinery thereon owned by the Contractor; (b) accept assignment of subcontracts pursuant to Paragraph 1.7.4; (c) Make demand upon Contractor's surety to complete the Work; and (d) finish the Work by whatever reasonable method the City may deem expedient. 1.16.2.3 When the City terminates the Contract for one of the reasons stated in Paragraph 1.16.2.1,the Contractor shall not be entitled to receive further payment until the Work is finished. 1.16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the City and not expressly waived, including attorney's fees, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance,the Contractor shall pay the difference to the City. This obligation for payment shall survive termination of the Contract. 1.16.2.5 If a Performance Bond has been furnished and the Contractor is declared by the City to be in default under the Contract, the Surety shall promptly, in no event to exceed 30 days, remedy the default by commencing and continuing to perform the remaining work of the Contract in accordance with its terms and conditions,or by obtaining a bid or bids in accordance with its terms and conditions. At City's election, upon J determination by the City and the Surety of the lowest responsible bidder, the Surety will complete the Work or will arrange for a Contract between such bidder and the City, and 53 make available sufficient funds to pay the cost of completion less the balance of the Contract Sum, but not exceeding the Penal Sum of the bond. The phrase"balance of the Contract Sum"as used herein shall mean the total amount payable by the City to the Contractor under the Contract, including any adjustments thereto made in accordance with the terms and conditions of this Contract, and amendments thereto less the amount previously paid by the City to the Contractor. 1.16.3 Suspension by the Owner for Convenience. 1.16.3.1 The City may, without cause, and with seven days written notice, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the City may determine. 1.16.3.2 If City suspends the Contractor's performance for convenience, an adjustment shall be made to the Contract Sum as calculated under Paragraph 1.9 and shall include profit.No adjustmentshall be made to the extent: (a) that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or (b) that an equitable adjustment is made or denied under another provision of the Contract. 1.16.4 Termination by the Owner for Convenience. 1.16.4.1 The City may, at any time, terminate the Contract, in whole or in part,with seven days written notice, for the City's convenienceand without cause. 1.16.4.2 Upon receipt of written notice from the City of such termination for the City's convenience,the Contractor shall: (a) cease operations as directed by the City in the notice; (b) take actions necessary, or that the City may direct, for the protection and preservation of the Work; and (c) except for Work not so terminated and/or directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 1.16.4.3 In the event of a termination under Paragraph 1.16.4, the Contractor shall be paid the value of its Work to the date of termination plus such sums as. are reasonably required to cover the cost to Contractor, its Subcontractors and suppliers, to shut down the Project. City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination. 1.16.4.4 Upon determination by a court of competent jurisdiction that termination of the Contract, pursuant to Paragraph 1.16.2was wrongful, such termination 54. will be deemed.converted to a termination for convenience pursuant to Paragraph 1.16.4, and Contractor's remedy for wrongful termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph 1.16.4. END OF GENERAL PROVISIONS SECTION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Paragraph. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. If the City and Construction Manager agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. 2.1 Preconstruction Phase. 2.1.1 Preliminary Evaluation. The Construction Manager shall provide a preliminary evaluation of the City's program and Project budget requirements, each in terms of the other. 2.1.2 Consultation. The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the City. The Construction Manager shall consult with the City and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to construction cost, including estimates of alternative designs or materials, preliminary budgets and possible economies. 2.1.3 Preliminary Project Schedule. When Project requirements described in Paragraph 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the City's approval. The Construction Manager shall ' coordinateand integrate the preliminary Project schedule with the services and activities of the City, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, City's occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the City and Architect. 2.1.4 Phased Construction. The Construction Manager 'shall make recommendations to the City and Architect regarding the phased issuance of 55 Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities. 2.1.4.1 Preliminary Cost Estimates. When the City has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare,for the review of the Architect and approval of the City, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. 2.1.4.1.1 When Schematic Design Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare, for the review of the Architect and approval of the City, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the City, Architect and Construction Manager. 2,111M1When Design Development Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Design Development Documents (DD's), the Construction Manager shall provide an initial cost estimate at 60% DD's and update and refine this ) estimate when the Construction Documents (CD's) are fifty percent (50%) complete and again at ninety percent (90%) complete, and at any other appropriate intervals agreed to by the City, Architect and Construction Manager necessary to develop a GMP for the project. These cost estimate updates shall incorporate the latest design changes, alternate materials and processes as required to provide a Guaranteed Maximum Price that will meet the Owners stated project budget. Should the estimates of cost of the work exceed the latest approved project budget the Construction Manager shall inform the Owner and Architect and make recommendations for corrective action. 2.1.4.2 Subcontractors and Suppliers. The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the City and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or City know of any objection to such subcontractor or supplier. The receipt of such list shall not require the City or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the City or Architect later to object to or reject any proposed subcontractor or supplier. 2.1.4.3 Long-Lead-Time Items. The Construction Manager shall recommend to the City and Architect a schedule for procurement of long-lead-time items which will constitute 56 part of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the City, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the City to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items. 2.1.4.4 Extent of Responsibility. The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the City and the City's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and City in writing. 2.1.4.5 Equal Employment Opportunity and Affirmative Action. The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. See attached Title VI Nondiscrimination Assurances attached hereto as ATTACHMENT 1 2.2 Guaranteed Maximum Price Proposal. 2.2.1 When the Drawings and Specifications are sufficiently complete, but in no case later than 90% Construction Documents, the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee along with any identified Allowances as have been determined to be necessary. Provided, however, Construction Manager understands such estimates are relied upon by the City in making various Project determinations, and, therefore, should Construction Manager's Guaranteed Maximum Price proposal exceed the City's applicable budget by more than 2.5%, all pre-construction services rendered thereafter to render the Project within 2.5% of the budget by Construction Manager shall be at its cost. 2.2.2 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order. 2.2.3 The estimated Cost of the Work shall separately identify,the Construction Manager's Contingency, a sum not to exceed three percent(2.5%) of the Guaranteed j Maximum Price, an amount established by the Owner for the Construction Manager's use, subject to Owner's approval, to cover costs arising under Paragraph 2.2.2 and other costs 57 which are properly reimbursable as Cost of the Work but not the basis for a Change Order. Upon Contractor's completion of the Project, all unused portions of the Construction Manager's Contingency and those from the Guaranteed Maximum Price shall be set aside as cost savings for the benefit of the Owner. 2.2.3.1.1 Basis of Guaranteed Maximum Price. The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis,which shall include: (a) A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. (b) A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. (c) The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. (d) The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. 2.2.3.2 The Construction Manager shall meet with the City and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the City or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. This proposal shall provide the Owner no less than ten days to accept the GMP without invalidating the proposal or any of its terms. 2.2.3.3 Unless the City accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. 2.2.3.4 Prior to the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the City may specifically authorize in writing. 2.2.3.5 Upon acceptance by the City of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contract Documents, and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents. 58 2.2.3.6 The City shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the City, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and City if such revised Drawings and Specifications are inconsistent with the agreed- upon assumptions and clarifications. 2.3 Construction Phase. 2.3.1 General. 2.3.1.1 The Construction Phase shall commence on: a) the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, and b) the City's first authorization to the Construction Manager to: 1. award a subcontract, or 2. undertake construction Work with the Construction Manager's own forces, or 3. issue a purchase order for materials or equipment required for the Work. 2.4 Administration. 2.4.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids in accordance with the applicable requirements of Chapter 2269 of the Texas Government Code from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the City and Architect.The City will then determine,with the advice of the Construction Manager, which bids will be accepted. The City may designate specific persons or entities from whom the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the City may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. 2.4.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the 59 City and Architect (1) is recommended to the City by the Construction } Manager; (2) is qualified to perform that portion of the Work; and (3) has 1' submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the City requires that another bid be accepted,then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the City by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the City. 2.4.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Paragraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the City. 2.4.4 The Construction Manager shall schedule and conduct meetings with appropriate Subcontractors at which the City, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 2.4.5 Promptly after the City's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Paragraph 1.5.11, General Conditions, including the Owner's occupancy requirements. ) 2.4.6 The Construction Manager shall provide monthly written reports to the City and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the City may reasonably require. The log shall be available to the City and Architect. The Construction Manager shall promptly inform City in writing of any circumstance or development that is likely to delay Substantial Completion of the Project in accordance with the schedule. 2.4.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the City and Architect at regular intervals. 2.4.8 Professional Services. Paragraph 1.5.14.10, General Conditions shall apply to both the Preconstruction and Construction Phase. 2.4.9 Hazardous Materials. Paragraph 1.12.3, General Conditions shall apply to both the Preconstruction and Construction Phases. SECTION 3 OWNER'S RESPONSIBILITIES. 60 3.1 Information and Services. 3.1.1 The Owner shall provide information in a timely manner regarding the requirements of the Project, including a program which sets forth the City's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 3.1.2 The City shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the City. 3.1.3 Structural and Environmental Tests, Surveys and Reports. In the Preconstruction Phase, the City shall furnish the following with reasonable promptness and at the City's expense. Except to the extent that the Construction Manager knows of any inaccuracy, or should have reasonably discovered such error or inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Paragraphs 3.1.3.1 through 3.1.3:4 but shall exercise customary precautions relating to the performance of the Work. 3.1.3.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 3.1.3.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. 3.1.3.3 The services of a geotechnical engineer when such services are requested by the Construction Manager and are reasonably required by the scope of the Project, as determined by the City or Architect. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground. corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports. and appropriate professional recommendations. 3.1.3.4 Structural,mechanical, chemical, air and water pollution tests, tests for hazardous materials,, and other laboratory and environmental tests, inspections and reports which are required by law. 3.1.3.5 The services of other consultants when such services are reasonably required by the scope of the Project,as determined by the City or Architect, and are requested by the Construction Manager. 3.2 Owner's Designated Representative. The City shall designate in writing City's Representative who shall have express authority, subject to the limitations set forth in the General Conditions, to bind the City with respect to all matters requiring 61. the City's approval or authorization. This City's Representative shall have the authority to make decisions on behalf of the City concerning estimates and schedules, construction budgets, and changes in the Work, and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in Paragraph 1.6.2.1, General Conditions,the Architect does not have such authority. 3.3 Architect. The City shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services. The City must authorize, in writing, and cause the Architect to provide additional .service, requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Construction Manager has no authority to request services,from the.Architect on the City's behalf. Such services shall be provided in accordance with time schedules agreed to by the City, Architect and Construction Manager. Upon request of the Construction Manager, the City shall furnish to the Construction Manager a copy of the City's Agreement with the Architect. SECTION 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES. The City shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: 4_1 Compensation. 4.1.1For the services described in Paragraphs 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: Pre-Construction Fee: $10,000.00 (Ten Thousand and No/100s). 4.1.1 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the, cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations,pensions and similar contributions and benefits. 4.2 Payments. 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. 4.2.2 Payments are due and payable thirty(30) calendar days from the date the correct and approved Construction Manager's invoice is received by theOwner. . 62 4.2.3 The City stipulates that it is an exempt organization as defined by the Limited Sales,Excise and Use Tax Act and, as such, is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Construction Manager shall issue exemption certificates to its Subcontractors and suppliers in lieu of said sales tax for all such materials and supplies, complying with all applicable State Comptroller's Rulings. SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The City shall compensate the Construction Manager for Construction Phase services as follows: General Conditions: $427,914.00 Four Hundred Twenty Seven Thousand Nine Hundred Fourteen Dollars and No/ 100s 5.1 Compensation. 5.1.1For the Construction Manager's performance of the -Work as described in Paragraph 2.3, the City shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Paragraph 7 and the Construction Manager's Fee determined as follows: Construction Manager At Risk Fee.(as a Percentage): 2.85% 5.2 Guaranteed Maximum Price. 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee for the Work are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. 1, subject to additions and deductions by changes in the Work as provided in the Contract Documents. Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the City. In the event the Cost of Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price ("GMP"), the savings shall accrue one hundred percent(100%)to the City. 5.3 Changes in the Work. 5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. 1 may be determined by any of the methods listed in Paragraph 1.9.2.2, General Conditions, subject to the limitations provided in the General Conditions. 5.3.1.1 In calculating adjustments to subcontracts. (except those awarded with the Owner's prior consent on-the basis of cost plus a fee), the terms "cost" and "fee" as used in Paragraph 1.9.2.2 (c), General Conditions and the term "costs" as 63 used in Paragraph 1.9.3.6, General Conditions shall have the meanings assigned to them in the General Conditions and shall not be modified by this Paragraph 5. Adjustments to subcontracts awarded with the City's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. 5.3.1.2 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work as defmed in Paragraph 6 of this Agreement, and the term "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defmed in Paragraph 5.1.1 of this Agreement. 5.3.1.3 If no specific provision is made in Paragraph 5.1.1 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of: Paragraph 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. SECTION 6 COST OF THE WORK FOR CONSTRUCTION PHASE. 6.1 Costs To Be Reimbursed. 6.1.1The tern "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the City. The Cost of the Work shall include only the items set forth in this Paragraph 6. 6.1.1.1 Labor Costs. 6.1.1.1.1 Wage Rates. Pursuant to Section 2258.023(a) of the Texas :Government Code, wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as ATTACHMENT 3. 6.1.1.1.2 Statutory Penalty. Pursuant to Section 2258.023(b) of the Texas Government Code, if the Contractor or any subcontractor violates the requirements of this section the Contractor or subcontractor as the case may be shall pay the City Sixty. Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates. 6.1.1.1.3 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement, at off-site workshops. ( 6.1.1.1.4 Wages or salaries of the.Construction Manager's supervisory 64 and administrative personnel when stationed at the site with the Owner's agreement. See attached Position/Rate table No. Description Rate 1 Project Executive $115.00 per hour 2 Project Manager $74.00 per hour 3 Estimator $98.00 per hour 4 Safety/Field Operation $96.00 per hour Manager 5 Lead Superintendent $65.00 per hour 6 Assistant Superintendent $46.00 per hour 7 Project Engineer $41.00 per hour 8 Quality Control Inspector $68.00 per hour 9 Contract Administrator $33.00 per hour 10 BIM Coordinator $55.00 per hour 11 IT Coordinator $95.00 per hour 12 Labor Burden 42.5 % 6.1.1.1.5 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. Further, the time for performance does not necessitate overtime work and the City shall not be required to reimburse the "premium time" portion of any overtime payments by Contractor, unless otherwise approved, in writing, in advance by the City. 6.1.1.1.6 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements,and,for personnel not covered by such agreements, customary benefits such as sick leave,medical and health benefits,holidays,vacations and pensions,provided that such costs are based on wages and salaries included in the Cost of the Work under Paragraphs 6.1.1.1.1 through 6.1.1.1.4. 65 6.1.1.1.7 Subcontract Costs. Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. 6.1.1.1.8 Costs of Materials and Equipment Incorporated in the Completed Construction. (a) Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. (b) Costs of materials described in the preceding Paragraph 6.1.4.(a) in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to the City at the completion of the Work or, at the City's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the City as a deduction from the Cost of the Work. 6.1.1.1.9 Costs of Other Materials and Equipment, Temporary Facilities and Related Items. (a) ;Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. (b) Rental charges for. temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site, whether rented from the Construction Manager or others, and costs of transportation, installation,minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. (c) Costs of removal of debris from the site. (d) Reproduction costs, costs of telegrams, facsimile transmissions and long-distance telephone calls, postage and express delivery charges,telephone at the site and reasonable petty cash expenses of the site office. (e) That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. 66 6.1.1.1.10 Miscellaneous Costs. (a) That portion directly attributable to this Contract of premiums for insurance and bonds. (b) Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. (c) Fees of testing laboratories for tests required by the Contract Documents, except those related to nonconforming Work other than that for which payment is permitted by Paragraph 6.1.8. (d) Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the City's consent; provided, however, that such costs of legal defenses, judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Paragraph 1.5.19.1, General Conditions or other provisions of the Contract Documents. (e) Data processing costs related to the Work. (f) Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the City set forth in this Agreement. 6.1.1.1.11 ' Other Costs. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City. The costs described in Paragraphs 6.1.1.1 through 6.1.1.11 shall be included in the Cost of the Work notwithstanding any provision of General Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Paragraph 6.2. 6.2 Costs Not To Be Reimbursed. 6.2.1.1 The Cost of the Work shall not include: (a) Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Paragraphs 6.1.2.1 and 6.1.2.2. 67 (b) Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Paragraph 6.1. (c) Overhead and general expenses, except as may be expressly included in Paragraph 6.1. (d) The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. (e) Rental costs of machinery and equipment, except as specifically provided in Paragraph 6.1.5(b). (f) Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the City set forth in this Agreement. (g) Costs incurred in the performance of Preconstruction Phase Services. (h) Except as provided in Paragraph 6.1.7, any cost not specifically and expressly described in Paragraph 6.1. (i) Costs which would cause the Guaranteed Maximum Price to be exceeded. 6.3 Discounts,Rebates and Refunds. 6.3.1.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the City if(1) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the City, or (2) the City has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the City, and the Construction Manager shall make provisions so that they can be secured. 6.3.1.2 Amounts which accrue to the City in accordance with the provisions of Paragraph 6.3.1 shall be credited to the City as a deduction from the Cost of the Work. 6.4 Accounting Records. 6.4.1.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to the City. The City and the City's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. SECTION 7 PAYMENT. 68 7.1 Progress Payments. 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager, in a form acceptable to City and the Architect, and Certificates for Payment issued by the Architect, the City shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. 7.1.1.1 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. 7.1.1.2 Provided an Application for Payment is received by the Architect not later than the 30th day of a month, the City shall make payment to the Construction Manager not later than the 30th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the City not later than thirty(30) days after the Architect receives the Application for Payment. 7.1.1.3 With each Application for Payment, the Construction Manager shall submit payrolls,petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the City or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1)progress payments.already received by the Construction Manager;less(2)that portion of those payments attributable to the Construction Manager's Fee;plus (3)payrolls for the period covered by the present Application for Payment. 7.1.1.4 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the City and Architect may require. This schedule,unless objected to by the City or Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.1.5 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of(1)the percentage of that portion of the Work which has actually been completed or(2)the percentage obtained by dividing(a)the expense which has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. 7.1.1.6 Subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: (a) Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage -- completion of each portion of the Work by the share of the Guaranteed Maximum 69 Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the City of changes in the Work, amounts not in dispute maybe included as provided in Paragraph 1.9.3.7, General Conditions, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. (b) Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the City, suitably stored off the site at a location agreed upon in writing. (c) Add the Construction Manager's Fee, less retainage of: (i) ten percent (10%) where the GMP is less than $400,000; or (ii) five percent (5%) where the GMP is $400,000 or more. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Paragraphs at the rate stated in Paragraph 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Paragraphs bears to a reasonable estimate of the probable Cost of the Work upon its completion. (d) Subtract the aggregate of previous payments made by the City. (e) Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Paragraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the a City's accountants in such documentation. (f) Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph 1.11.5, General Conditions. 7.1.1.7 Except with the City's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent(5%). The City and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.1.8 Except with the City's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 7.1.1.9 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Paragraph 7.1.4 or other supporting data, that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the City, will be performed by the City's accountants acting in the sole interest of the City. 70 7.1.2 Final Payment. 7.1.2.1 Final payment shall be made by the City to the Construction Manager when (1) the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct punch list items or nonconforming Work, as provided in Paragraph 1.14.2.2, General Conditions, and to satisfy other requirements, if any, which necessarily survive fmal payment; (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the City's accountants; and (3) a fmal Certificate for Payment has then been issued by the Architect; such fmal payment shall be made by the City not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: 7.1.2.2 The amount of the fmal payment shall be calculated as follows: (a) Take the sum of the Cost of the Work substantiated by the Construction Manager's fmal accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. (b) Subtract amounts, if any, for which the Architect withholds or the City is entitled to withhold under this Agreement, in whole or in part, a fmal Certificate for Payment as provided in Paragraph 1.11.5.1, General Conditions or other provisions of the Contract Documents. (c) Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. 7.1.2.3 The City's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager, together with all backup documentation reasonably required by the City. Based upon such Cost of the Work as the City's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Paragraph 7.2.1 have been met,the Architect will,within seven days after receipt of the written report of the Owner's accountants, either issue to the City a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Paragraph 1.11.5.1, General Conditions. The time periods stated in this Paragraph 7.2 supersede those stated in Paragraph 1.11.4.1, General Conditions. 7.1.2.4 If the City's accountants report the Cost of the Work as substantiated by the Construction Manager's fmal accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Paragraph 8 without a 71 further decision of the Architect. Unless agreed to otherwise, a demand for mediation of the disputed amount shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this 30-day period shall result in the substantiated amount reported by the City's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the City shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. 7.1.2.5 If, subsequent to final payment and at the City's request,the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (1)to correct nonconforming Work or (2) arising from the resolution of disputes, the City shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any, related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings,the amount of such savings shall be recalculated and appropriate credit given to the City in determining the net amount to be paid by the City to the Construction Manager. SECTION 8 MISCELLANEOUS PROVISIONS! 8.1 Dispute Resolution. 8.1.1 During both the Preconstruction and Construction Phases, claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Paragraph 1.6.3., General Conditions, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation. 8.2 Other Provisions. 8.2.1.1 Extent of Contract. This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the City and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the City and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 8.2.1.2 Ownership and Use of Documents. Paragraph 1.3.4, General Conditions, shall apply to both the Preconstruction and Construction Phases. 8.2.1.3 Governing Law. The Contract shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazoria County, Texas, United States of America. 8.2.1.4 Assignment. The City and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain 72 legally responsible for all obligations under the Contract. r SECTION 9 TERMINATION OR SUSPENSION. 9.1Termination Prior To Establishing Guaranteed.Maximum Price. 9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price,the City may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Paragraph 1.16.1.1, General Conditions. 9.1.1.1 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 prior to commencement of the Construction Phase,the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Paragraph 4.1.1. 9.1.1.2 If.the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 after commencement of the Construction Phase,the Construction Manager shall be paid , in addition to the compensation provided in Paragraph 9.1.2, an amount calculated as follows: (a) Take the Cost of the Work incurred.by the Construction Manager. (b) Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Paragraph 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, an amount which bears the same ratio to that fixed-sum Fee as the.Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of.the Work upon its completion. (c) Subtract the aggregate of previous payments made by the City on account of the Construction Phase. The City shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the City, for any equipment owned by the Construction Manager which the City elects to retain and which is not otherwise included in the Cost of the Work under Paragraph 9.1.3.(a)..To the extent that the City elects to take legal assignment of subcontracts and purchase orders (including rental agreements),the Construction Manager shall, as a condition of receiving the payments referred to in Paragraph 9, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the City may require for the purpose of fully vesting in the City the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into. by the Construction Manager with the City's written approval,prior to the execution of Amendment No. 1 shall 73 contain provisions permitting assignment to the City as described above. If the City accepts such assignment, the City shall reimburse the Construction Manager with respect to all valid and properly payable costs arising under the subcontract, purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated. If the City elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the City shall pay the Construction Manager the costs necessarily and reasonably incurred by the Construction Manager by reason of such termination, but in no event to include any overhead or profit on work not performed. 9.1.2 Termination Subsequent to Establishing Guaranteed Maximum Price. Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Paragraph 1.16, General Conditions. 9.1.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Paragraphs 9.1.2 and 9.1.3 of this Agreement. 9.2.2 In the event of such termination by the Construction Manager,the amount to be paid to the Construction Manager under Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive under , Paragraphs 9.1.2 and 9.1.3 above. In no event shall Construction Manager nor any supplier or subcontractor be entitled to any fee or lost profits for work not performed. 9.3 Suspension. The Work may be suspended by the City as provided in Paragraph 1.16, General Conditions; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Paragraph 1.16.3.2, General Conditions, except that the term "cost of performance of the Contract"in that Paragraph shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager's Fee as described in Paragraphs 5.1.1 and 5.3.4 of this Agreement. SECTION 10 OTHER CONDITIONS AND SERVICES. 10.1 Construction Manager represents to the City that it has, and will keep in effect at all times during the term of this Contract, any licenses, permits, and approvals which are legally required for the Construction Manager to practice its trade. 10.1.1 Authority to do business. The Construction Manager represents that it has a certificate of authority authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this Contract. 10.1.2 Authority to Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective 74 corporations. 10.1.3 Severability. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid,illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision herein and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 10.1.4 Presumption Against Waiver. No waiver by either party hereto of any one or more defaults by the other party hereto in the performance of this Contract shall be construed as a waiver of any future defaults whether of a like or different character. 10.1.5 Owner's Reserved Rights. The City shall have the rights by its officers, employees or agents to examine and inspect the Construction Manager's Work at any time to verify Construction Manager's compliance with the terms of this Contract. Any approval by City or acceptance of Construction Manager's Work shall not waive any obligation of Construction Manager to correct defective work. 10.1.6 Benefit. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns where permitted by Contract. Nothing in this Paragraph shall be construed to waive the conditions elsewhere contained in this Contract applicable to assignment by the Construction Manager. Nothing contained in this Contract shall be construed to confer any benefit upon any subcontractor or any other third party. 10.1.7 Headings, Gender, Number. The headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa,unless the context requires otherwise. 10.1.8 Agreement Read. The parties acknowledge that they have had opportunity to consult with counsel of their choice, have read, understand and intend to be bound by the teens and conditions of this Agreement. 10.1.9 Liquidated Damages. The amount of liquidated damages for the Construction Manager's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Construction Manager because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. As a result of the difficulty in estimation,calculation and ascertainment of City's damages due,to a failure of Construction Manager to achieve timely completion of the Work, if the Construction Manager should neglect, fail, or refuse to either Substantially Complete.or Finally Complete the Work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of the Contract Documents,then the Construction Manager does hereby agree as part of the consideration for the awarding of this Agreement that the Owner may permanently withhold from the Construction Manager's total compensation the sum of 75 One Thousand Five Hundred and no /100 DOLLARS ($ 1.500.00) for each and every calendar day that the Construction Manager shall be in default after the time stipulated for Substantial Completion not as a penalty, but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 10.1.10Fina1 Completion. Contractor shall achieve Final Completion within 30 calendar days of the date of Substantial Completion, failing which, Contractor shall provide a full time•on site superintendent until Final Completion at its own cost and not as a cost of the Work. 10.1.11 Verification No Boycott Israel. To the extent this Contract is considered a contract for goods or services subject to § 2270.002 Texas Government Code, Contractor verifies that it i) does not boycott Israel; and ii) will not boycott Israel during the term of this Contract. List of ATTACHMENTS 1 Owner's Insurance Requirements of Contractor 2 Special Conditions of the Contract 3 Wage Rate finding for Building Construction In Brazoria County 4 Appendix A Title VI Assurances ,,-----) List of Exhibits __; A Contractor's Insurance Certificates B Performance Bond C Payment Bond DU:, CH,IN g. CITY OF PEARLAND V.4 4 Y• Y• B B A Printed Name: bV 11. . (A.M., MAK)) City M. ager: r..t ,.errti. Title: C('c��o Date: AV Date:0D4 0 Z�, D APPROVED: APPROVED: Notary: p Q ^ City Secretary : C.rk_d (j• . 0..'Ci'l.P/.�, Date: 'g•4Y Pv' « d' ••'•• ., CAROL L.WELLS *-1*'- My Notary ID#128952025 9,f�F;.c+"• Expires April 11,2020 76 CITY OF PEARLAND STANDARD FORM OF AGREEMENT APPENDIX B House Bill 89 Verification David Rowe (Person name), the undersigned representative (hereafter referred to as "Representative") of Durotech Inc. (company or business name, hereafter referred to as "Business Entity"), being an adult over the age of eighteen (18)years of age, after being duly sworn by the undersigned notary, do hereby depose and affirm the following: 1. That Representative is authorized to execute this verification on behalf of Business Entity; 2. That Business Entity does not boycott Israel and will not boycott Israel during the term of any contract that will be entered into between Business Entity and the City of Pearland; and 3. That Representative understands that the term "boycott Israel" is defined by Texas Government Code Section 2270.001 to mean refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes. , Et‘) SIGNATURE OF REPRESENTATIVE SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this 26th day of October , 2018 . lar>lit0 • Nota Public stir,;.rr ;,, REBECCA J.MEADOWS MY COMMISSION EXPIRES -,„ P,;.E 0. September 17,2019 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. • CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2018-419337 Durotech Houston,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 10/26/2018 being filed. City of Pearland Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. RFP No.0718-54 Fire Station 8 Project No.FA1501-Preconstruction&Construction Services 4 Nature of interest Name of interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary Rowe, David Houston,TX United States X • 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is David Rowe , and my date of birth is November 3,1961 My address is 11931 Wickchester Lane,Suite 205 , Houston , Texas , 77043 , USA . (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in Harris County at`t'-of Texas on the 26th day of October ,2018 (month) (year) (a i ignature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.6711 ATTACHMENT 1 OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR 1. Definitions. For purposes of this Agreement: 1.1 Owner Parties. "Owner Parties" means (a) the City of Pearland, its successors and assigns, and the Engineer, (b) any officers, employees, or agents of such persons or entities, and (c) others as required by the Contract Documents, if any. 1.2 Contractor. "Contractor" shall mean the vendor providing the service or work to be performed under this Agreement. 1.3 Subcontractor. "Subcontractor" shall include subcontractors of any tier. 1.4 ISO. "ISO"means Insurance Services Office. 2. Contractor Insurance Representations to Owner Parties 2.1 It is expressly understood and agreed that the insurance coverages required herein: 2.1.1 represent Owner Parties' minimum requirements and are not to be construed to void or limit the Contractor's indemnity obligations as contained in this Agreement nor represent in any manner a determination of the insurance coverages the Contractor should or should not maintain for its own protection; and 2.1.2 are being, or have been, obtained by the Contractor in support of the Contractor's liability and indemnity obligations under this Agreement. Neither the requirements as to insurance to be carried as provided for herein, the insolvency, bankruptcy or failure of any insurance company carrying insurance of the Contractor, nor the failure of any insurance company to pay claims accruing, shall be held to affect, negate or waive any of the provisions of this Agreement. 2.2 Failure to obtain and maintain the required insurance shall constitute a material breach of, and default under, this Agreement. If the Contractor shall fail to remedy such breach within five (5) business days after notice by the Owner, the Contractor will be liable for any and all costs, liabilities, damages and penalties resulting to the Owner Parties from such breach, unless a written waiver of the specific insurance requirement(s) is provided to the Contractor by the Owner. In the event of any failure by the Contractor to comply with the provisions of this Agreement, the Owner may, without in any way compromising or waiving any right or remedy at law or in equity, on notice to the Contractor, purchase such insurance, at the Contractor's expense, provided that the Owner shall have no obligation to do so and if the Owner shall do so, the Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. 10-2012 00700-Cl 3. Conditions Affecting All Insurance Required Herein 3.1 Cost of Insurance. All insurance coverage shall be provided at the Contractor's sole expense. 3.2 Status and Rating of Insurance Company. All insurance coverage shall be written through insurance companies authorized to do business in the state in which the work is to be performed and rated no less than A-: VII in the most current edition of A. M. Best's Key Rating Guide. 3.3 Restrictive, Limiting, or Exclusionary Endorsements. All insurance coverage shall be provided to the Owner Parties in compliance with the requirements herein and shall contain no endorsements that restrict, limit, or exclude coverage required herein in any manner without the prior express written approval of the Owner. 3.4 Limits of Liability. The limits of liability may be provided by a single policy of insurance or by a combination of primary and umbrella policies, but in no event shall the total limits of liability available for any one occurrence or accident be less than the amount required herein. 3.5 Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage. All insurance coverage shall contain the following express provision: In the event of cancellation, non-renewal, or material reduction in coverage affecting the certificate holder, thirty (30) days prior written notice shall be given to the certificate holder by certified mail or registered mail,return receipt requested. 3.6 Waiver of Subrogation. The Contractor hereby agrees to waive its rights of recovery from the Owner Parties with regard to all causes of property and/or liability loss and shall cause a waiver of subrogation endorsement to be provided in favor of the Owner Parties on all insurance coverage carried by the Contractor, whether required herein or not. 3.7 Deductible/Retention. Except as otherwise specified herein, no insurance required herein shall contain a deductible or self-insured retention in excess of $25,000 without prior written approval of the Owner. All deductibles and/or retentions shall be paid by, assumed by, for the account of, and at the Contractor's sole risk. The Contractor shall not be reimbursed for same. 4. Maintenance of Insurance. The following insurance shall be maintained in effect with limits not less than those set forth below at all times during the term of this Agreement and thereafter as required: 4.1 Commercial General Liability Insurance 4.1.1 Coverage. Such insurance shall cover liability arising out of all locations and operations of the Contractor, including but not limited to liability assumed under this contract (including the tort liability of another assumed 10-2012 00700-C2 in a business contract). Defense shall be provided as an additional benefit and not included within the limit of liability. 4.1.2 Form. Commercial General Liability Occurrence form (at least as broad as an unmodified ISO CG 0001 0798 or its equivalent). 4.1.3 Amount of Insurance. Coverage shall be provided with limits of not less than: Each Occurrence Limit $1,000,000 General Aggregate Limit $2,000,000 Product-Completed Operations Aggregate Limit $2,000,000 Personal and Advertising Injury Limit $1,000,000 4.1.4 Required Endorsements a. Additional Insured. Additional insured status shall be provided in favor of the Owner Parties on any of the following: i. ISO form CG 20 10 11 85; or ii. ISO form CG 20 26 11 85; or iii. a combination of ISO forms CG 20 33 10 01 and CG 20 37 10 01; or iv. any form providing equivalent protection to Owner. b. Designated Construction Project(s) Aggregate Limit. The aggregate limit shall apply separately to this Agreement through use of an ISO CG 25 03 03 97 endorsement or its equivalent. c. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. d. Personal Injury Liability. The personal injury contractual liability exclusion shall be deleted. e. Primary and Non-Contributing Liability. It is the intent of the parties to this Agreement that all insurance required herein shall be primary to all insurance available to the Owner Parties. The obligations of the Contractor's insurance shall not be affected by any other insurance available to the Owner Parties and shall seek no contribution from the Owner Parties' insurance, whether primary, excess contingent, or on any other basis. The Contractor's insurance coverage shall be endorsed to provide such primary and non- contributing liability. f. Waiver of Subrogation, as required in 3.6, above. 4.1.5 Continuing Commercial General Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to Owner stating Work completion date. 10-2012 00700-C3 4.2 Auto Liability Insurance 4.2.1 Coverage. Such insurance shall cover liability arising out of any auto ; (including owned, hired, and non-owned). 4.2.2 Form. Business Auto form (at least as broad as an unmodified ISO CA 0001 or its equivalent). 4.2.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$1,000,000. 4.2.4 Required Endorsements a. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.3 Employer's Liability Insurance 4.3.1 Coverage. Employer's Liability Insurance shall be provided as follows: 4.3.2 Amount of Insurance. Coverage shall be provided with a limit of not less than: Employer's Liability: $1,000,000 each accident and each disease. 4.3.3 Required Endorsements a. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.4 Umbrella Liability Insurance 4.4.1 Coverage. Such insurance shall be excess over and be no less broad than all coverages described above and shall include a drop-down provision for exhaustion of underlying limits. 4.4.2 Form. This policy shall have the same inception and expiration dates as the commercial general liability insurance required above. 4.4.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$5,000,000. 4.4.4 Continuing Umbrella Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 10-2012 00700-C4 4.5 Professional Liability Insurance 4.5.1 Coverage. The Contractor shall provide professional liability insurance for any professional design or engineering drawing required by the work. Such insurance shall indemnify the Owner from claims arising from the negligent performance of professional services of any type, including but not limited to design or design/build services as part of the Work to be performed. 4.5.2 Form. This insurance shall include prior acts coverage sufficient to cover all services rendered by the Contractor and by its consultants under this Agreement. It is recognized that this coverage may be provided on a Claims-Made basis. 4.5.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$1,000,000. 4.5.4 Continuing Professional Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 4.6 Builder's Risk 4.6.1 Insureds. Insureds shall include: a. Owner, General Contactor and all Loss Payees and Mortgagees as Named Insureds; and b. subcontractors of all tiers in the Work as Additional Insureds. 4.6.2 Covered Property. Such insurance shall cover: a. all structure(s) under construction, including retaining walls, paved surfaces and roadways, bridges, glass, foundation(s), footings, underground pipes and wiring, excavations, grading, backfilling or filling; b. all temporary structures (e.g., fencing, scaffolding, cribbing, false work, forms, site lighting, temporary utilities and buildings) located at the site; c. all property including materials and supplies on site for installation; d. all property including materials and supplies at other locations but intended for use at the site; e. all property including materials and supplies in transit to the site for installation by all means of transportation other than ocean transit; and f. other Work at the site identified in the Agreement to which this Exhibit is attached. 10-2012 00700-C5 Form a. Coverage shall be at least as broad as an unmodified ISO Special form, shall be provided on a completed-value basis, and shall be primary to any other coverage insurance available to the insured parties, with that other insurance being excess, secondary and non- contributing. b. No protective safeguard warranty shall be permitted. c. Required coverage shall further include: i. Additional expenses due to delay in $ TBD completion of project(where applicable) ii. Agreed value Included without sublimit iii. Damage arising from error, omission or Included without sublimit deficiency in construction methods, design, specifications, workmanship or materials, including collapse iv. Debris removal additional limit 25% of direct damage loss v. Earthquake (where applicable) $ TBD vi. Earthquake sprinkler leakage (where $ TBD applicable) vii. Expediting expenses $ TBD viii. Flood (where applicable) $ TBD ix. Freezing Included without sublimit - x. Mechanical breakdown, including hot& Included without sublimit cold testing (where applicable) xi. Notice of cancellation, non-renewal or Included material reduction—60 days prior written notice to each insured xii. Occupancy clause, as required in F, Included below xiii. Ordinance or law Included without sublimit xiv. Pollutant clean-up and removal $ TBD xv. Preservation of property Included without sublimit xvi. Replacement cost Included xvii. Theft Included without sublimit xviii. Waiver of subrogation as required in G, Included below. 4.6.3 Amount of Insurance. Coverage shall be provided in an amount equal at all times to the full replacement value and cost of debris removal for any single occurrence. 10-2012 00700-C6 4.6.4 Deductibles. Deductibles shall not exceed the following: a. All Risks of Direct Damage, Per $5,000 Occurrence, except b. Delayed Opening Waiting Period 5 Days c. Flood, Per Occurrence $25,000 or excess of NFIP if in Flood Zone A, B or V d. Earthquake and Earthquake Sprinkler $25,000 Leakage, Per Occurrence 4.6.5 Termination of Coverage. The termination of coverage provision shall be endorsed to permit occupancy of the covered property being constructed so long as such occupancy does not exceed 20% of the usable area of the property. This insurance shall be maintained in effect, unless otherwise provided for in the Contract Documents, until the earliest of the following dates: a. the date on which all persons and organizations who are insureds under the policy agree that it shall be terminated; b. the date on which final payment, as provided for in the Agreement to which this Exhibit is attached,has been made; or c. the date on which the insurable interests in the Covered Property of all insureds other than Contractor have ceased. r � 4.6.6 Waiver of Subrogation. The waiver of subrogation provision shall be endorsed as follows: a. A waiver of subrogation shall be provided in favor of all insureds. b. The waiver of subrogation provisions shall be endorsed as follows: Should a covered loss be subrogated, either in whole or in part, your rights to any recovery will come first, and we will be entitled to a recovery only after you have been fully compensated for the loss. 5. Intentionally left blank. 6. Evidence of Insurance 6.1 Provision of Evidence. Evidence of the insurance coverage required to be maintained by the Contractor, represented by certificates of insurance, evidence of insurance, and endorsements issued by the insurance company or its legal agent, and must be furnished to the Owner prior to commencement of Work and not later than fifteen (15) days after receipt of this Agreement. New certificates of insurance, evidence of insurance, and endorsements shall be provided to the Owner f prior to the termination date of the current certificates of insurance, evidence of insurance, and endorsements. 10-2012 00700-C7 6.2 Form 6.2.1 All property insurance required herein shall be evidenced by ACORD form ( ) 28, "Evidence of Property Insurance". 6.2.2 All liability insurance required herein shall be evidenced by ACORD form 25, "Certificate of Insurance". 6.3 Specifications. Such certificates of insurance, evidence of insurance, and endorsements shall specify: 6.3.1 The Owner as a certificate holder with correct mailing address. 6.3.2 Insured's name, which must match that on this Agreement. 6.3.3 Insurance companies affording each coverage, policy number of each coverage, policy dates of each coverage, all coverages and limits described herein, and signature of authorized representative of insurance company. 6.3.4 Producer of the certificate with correct address and phone number listed. 6.3.5 Additional insured status required herein. 6.3.6 Amount of any deductibles and/or retentions. 6.3.7 Cancellation, non-renewal and material reduction in coverage notification as required by this Agreement. Additionally, the words "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon Company, it agents or representatives" shall be deleted from the cancellation provision of the ACORD 25 certificate of insurance form. 6.3.8 Designated Construction Project Aggregate Limits required herein. 6.3.9 Personal Injury contractual liability required herein. 6.3.10 Primary and non-contributing status required herein. 6.3.11 Waivers of subrogation required herein. 6.4 Required Endorsements. A copy of each of the required endorsements shall also be provided. 6.5 Failure to Obtain. Failure of any Owner Party to demand such certificate or other evidence of full compliance with these insurance requirements or failure of any Owner Party to identify a deficiency from evidence that is provided shall not be construed as a waiver of the Contractor's obligation to maintain such insurance. 6.6 Certified Copies. Upon request of any Owner Party, the Contractor shall provide to the Owner a certified copy of all insurance policies required herein within ten (10) days of any such request. Renewal policies, if necessary, shall be delivered to the Owner prior to the expiration of the previous policy. 6.7 Commencement of Work. Commencement of Work without provision of the required certificate of insurance, evidence of insurance and/or required endorsements, or without compliance with any other provision of this Agreement, shall not constitute a waiver by any Owner Party of any rights. The Owner shall have the right, but not the obligation, of prohibiting the Contractor or any subcontractor from performing any Work until such certificate of insurance, evidence of insurance and/or required endorsements are received and approved by the Owner. 10-2012 00700-C8 7. Insurance Requirements of Contractor's Subcontractors 7.1 Insurance similar to that required of the Contractor shall be provided by all subcontractors (or provided by the Contractor on behalf of subcontractors) to cover operations performed under any subcontract agreement. The Contractor shall be held responsible for any modification in these insurance requirements as they apply to subcontractors. The Contractor shall maintain certificates of insurance from all subcontractors containing provisions similar to those listed herein (modified to recognize that the certificate is from subcontractor) enumerating, among other things, the waivers of subrogation, additional insured status, and primary liability as required herein, and make them available to the Owner upon request. 7.2 The Contractor is fully responsible for loss and damage to its property on the site, including tools and equipment, and shall take necessary precautions to prevent damage to or vandalism, theft, burglary, pilferage and unexplained disappearance of property. Any insurance covering the Contractor's or its subcontractor's property shall be the Contractor's and its subcontractor's sole and complete means or recovery for any such loss. To the extent any loss is not covered by said insurance or subject to any deductible or co-insurance, the Contractor shall not be reimbursed for same. Should the Contractor or its subcontractors choose to self insure this risk, it is expressly agreed that the Contractor hereby waives, and shall cause its subcontractors to waive, any claim for damage or loss to said property in favor of the Owner Parties. 8. Use of the Owner's Equipment. The Contractor, its agents, employees, subcontractors or suppliers shall use the Owner's equipment only with express written permission of the Owner's designated representative and in accordance with the Owner's terms and condition for such use. If the Contractor or any of its agents, employees, subcontractors or suppliers utilize any of the Owner's equipment for any purpose, including machinery, tools, scaffolding, hoists, lifts or similar items owned, leased or under the control of the Owner, the Contractor shall defend, indemnify and be liable to the Owner Parties for any and all loss or damage which may arise from such use. 9. Release and Waiver. The Contractor hereby releases, and shall cause its subcontractors to release, the Owner Parties from any and all claims or causes of action whatsoever which the Contractor and/or its subcontractors might otherwise now or hereafter possess resulting in or from or in any way connected with any loss covered by insurance, whether required herein or not, or which should have been covered by insurance required herein, including the deductible and/or uninsured portion thereof, maintained and/or required to be maintained by the Contractor and/or its subcontractors pursuant to this Agreement. 10-2012 00700-C9 ATTACHMENT 2 SPECIAL CONDITIONS OF AGREEMENT The following Special Conditions modify the General Conditions, Document 00700. Where a portion of the General Conditions is modified or deleted by these Special Conditions,the unaltered portions of the General Conditions shall remain in effect. ARTICLE 1 DEFINITIONS AND INTERPRETATIONS 1.01 Add the following paragraph to the end of Article 1.01: The OWNER'S representative on the project site is: Ronnie Hart telephone: 281. 652. 1750 The CONSTRUCTION MANAGER is: Jason Goin telephone: 281 541 0931 The CONSTRUCTION INSPECTOR is: TBD ARTICLE 4 RIGHTS AND RESPONSIBILITIES OF THE CONTRACTOR EXHIBIT A Owner's Insurance Requirements of Contractor,Article 4.6 Builder's Risk— Builder's Risk Insurance is required for this project. ARTICLE 5 PROSECUTION AND PROGRESS Temporary Facilities Contractor is be required to provide an on-site construction office for the duration of this project. Contractor is required to coordinate with the Owner for all Traffic Control Documents. Contractor to coordinate with the Architect& Owner for procurement of Traffic Control Documents prior to TXDOT permitting. Contractor is to keep a minimum of one lane open at all times, in both directions.No lane closures to extend beyond the defined work day. END OF SECTION 08/2018 00800- 1 of 1 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 General Decision Number: TX18O282 09/14/2018 TX282 ATTACHMENT 3 Superseded General Decision Number: TX2O17O282 ate: Texas / Construction Type: Building County: Brazoria County in Texas. BUILDING CONSTRUCTION PROJECTS (does not include single family homes or apartments up to and including 4 stories). Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.35 for calendar year 2018 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015. If this contract is covered by the EO, the contractor must pay all workers in any classification listed on this wage determination at least $10.35 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2018. The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. �Jification Number Publication Date 0 01/05/2018 1 01/12/2018 2 08/03/2018 3 09/14/2018 ASBEOO22-009 06/01/2018 Rates Fringes ASBESTOS WORKER/HEAT & FROST INSULATOR (Duct, Pipe and Mechanical System Insulation) $ 24.15 13.29 BOILOO74-003 01/01/2017 Rates Fringes BOILERMAKER $ 28.00 22.35 CARPO551-009 04/01/2016 Rates Fringes CARPENTER (Excludes Drywall Hanging, Form Work, and Metal ctud Installation) $ 23.05 8.78 -- ,fECO716-005 08/28/2017 Rates Fringes https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 1/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 ELECTRICIAN (Excludes Low Voltage Wiring and Installation of Alarms) $ 32.25 9.14 r ELEV0031-003 01/01/2018 Rates Fringes ELEVATOR MECHANIC $ 41.28 32.645+a+b FOOTNOTES: A. 6% under 5 years based on regular hourly rate for all hours worked. 8% over 5 years based on regular hourly rate for all hours worked. B. Holidays: New Year's Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Friday after Thanksgiving Day; Christmas Day; and Veterans Day. ENGIO45O-002 04/01/2014 Rates Fringes POWER EQUIPMENT OPERATOR Cranes $ 34.85 9.85 * IR0NOO84-011 06/01/2018 Rates Fringes IRONWORKER, ORNAMENTAL $ 23.77 7.12 v, jRONO135-002 09/01/2018 Rates Fringes IRONWORKER, STRUCTURAL $ 31.85 12.14 PLASOO79-004 01/01/2015 Rates Fringes PLASTERER $ 19.92 1.00 PLUMOO68-002 10/01/2017 Rates Fringes PLUMBER $ 34.90 10.54 PLUMO211-010 10/01/2017 Rates Fringes PIPEFITTER (Including HVAC Pipe Installation) $ 34.10 11.71 SHEEOO54-003 07/01/2017 Rates Fringes SHEET METAL WORKER (Excludes HVAC Duct and Unit Installation) $ 27.72 13.70 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 2/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 SUTX2O14-008 07/21/2014 Rates Fringes USTICAL CEILING MECHANIC $ 16.41 3.98 BRICKLAYER $ 19.86 0.00 CAULKER $ 15.36 0.00 CEMENT MASON/CONCRETE FINISHER $ 13.33 0.00 DRYWALL FINISHER/TAPER $ 16.30 3.71 DRYWALL HANGER AND METAL STUD INSTALLER $ 17.45 3.96 ELECTRICIAN (Alarm Installation Only) $ 17.97 3.37 ELECTRICIAN (Low Voltage Wiring Only) $ 18.00 1.68 FLOOR LAYER: Carpet $ 20.00 0.00 FORM WORKER $ 12.57 0.00 GLAZIER $ 19.12 4.41 INSULATOR - BATT $ 14.87 0.73 `CINWORKER, REINFORCING $ 12.10 0.00 ti LABORER: Common or General $ 10.55 0.00 LABORER: Mason Tender - Brick $ 13.37 0.00 LABORER: Mason Tender - Cement/Concrete $ 10.86 0.00 LABORER: Pipelayer $ 12.94 0.00 LABORER: Roof Tearoff $ 11.28 0.00 LABORER: Landscape and Irrigation $ 9.49 0.00 LATHER $ 19.73 0.00 OPERATOR: Backhoe/Excavator/Trackhoe $ 15.56 0.00 OPERATOR: Bobcat/Skid Steer/Skid Loader $ 13.93 0.00 OPERATOR: Bulldozer $ 20.77 0.00 OPERATOR: Drill $ 16.22 0.34 ARATOR: Forklift $ 15.64 0.00 OPERATOR: Grader/Blade $ 13.37 0.00 OPERATOR: Loader $ 13.55 0.94 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 3/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 OPERATOR: Mechanic $ 17.52 3.33 OPERATOR: Paver (Asphalt, Aggregate, and Concrete) $ 16.03 0.00 'RATOR: Roller $ 16.00 0.00 PAINTER (Brush, Roller and Spray), Excludes Drywall Finishing/Taping $ 16.77 4.51 ROOFER $ 15.40 0.00 SHEET METAL WORKER (HVAC Duct Installation Only) $ 20.05 4.19 SHEET METAL WORKER (HVAC Unit Installation Only) $ 19.67 2.24 SPRINKLER FITTER (Fire Sprinklers) $ 22.17 9.70 TILE FINISHER $ 12.00 0.00 TILE SETTER $ 16.17 0.00 TRUCK DRIVER: 1/Single Axle Truck $ 14.95 5.23 TRUCK DRIVER: Dump Truck $ 12.39 1.18 ' ICK DRIVER: Flatbed Truck $ 19.65 8.57 TRUCK DRIVER: Semi-Trailer Truck $ 12.50 0.00 TRUCK DRIVER: Water Truck $ 12.00 4.11 WATERPROOFER $ 14.39 0.00 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons --;ulting from, or to assist a family member (or person who is family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 4/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than "SU" or "UAVG" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUMO198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example,. is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the "SU" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2O12-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Assification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 5/7 10/15/2018 https://www.wdol.gov/wdol/scafiies/davisbacon/TX282.dvb?v=3 average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. AVG rate will be updated once a year, usually in January of (' year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. i ch regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an "--,:erested party may appeal directly to the Administrative )riew Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. https://www.wdol.gov/wdoi/scafiies/davisbacon/TX282.dvb?v=3 6/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. .� . END OF GENERAL DECISION } https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 7/7 ATTACHMENT 4 Title VI Nondiscrimination Assurances APPENDIX A During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: (1) Compliance with Regulations: The contractor shall comply with the Regulations relative to nondiscrimination in Federally-Assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. (2) Nondiscrimination: The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Sub-Recipient or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information the contractor shall so certify to the Sub-Recipient, or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract,the Sub-Recipient shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: (a) withholding of payments to the contractor under the contract until the contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part. 1 (6) Incorporation of Provisions:The contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the Sub-Recipient or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for non-compliance. Provided, however, that, in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the Sub-Recipient to enter into such litigation to protect the interests of the Sub-Recipient, and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. 1 ® DATE(MMIDD/YYYY) ACORN CERTIFICATE OF LIABILITY INSURANCE 10/26/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES W.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED ,;ESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. • IMPORTANT:.If the certificate holderisan ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and'conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to thecertificate holder in lieu of such endorsement(s). R CONTACT PRODUCE NAME: MCGRIFF,SEIBELS&WILLIAMS OF TEXAS,INC. PHONE 713-877-8975 FAX 713-877-8974 818 Town&Country Blvd,Suite 500 (A/C.No,Ext): (A/C,No): Houston,TX 77024-4549 E-MAIL ADDRESS: - INSURER(S)AFFORDING COVERAGE NAIC# INSURERA:Hartford Underwriters Insurance Company 30104 - INSURED - INSURER B:Trumbull Insurance Company 27120 Durotech,Inc. Durotech GP LLC INSURER C:XL Specialty Insurance Company 37885 11931 Wickchester Lane 205 INSURER D:Pacific Insurance Company,Limited 10046 Suite Houston,TX 77043 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:HEVFPCDE • REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT-TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN;THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR -_ - ADDL SUER POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSD wVD POLICY NUMBER (MMIDD/YYYY) (MM/DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY 61 UEAQI0214 05/31/2018 05/31/2019 EACH OCCURRENCE $ 2,000,000 DAMAGE TO CLAIMS-MADE X OCCUR PREMISES(EaE ccu NTEence) $ 300,000 MED EXP(Any one person) $- 10,000 - -X X - PERSONAL&ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: I GENERAL AGGREGATE $ 4,000,000 POLICY X PO- LOC PRODUCTS-COMP/OP AGG $ 4,000,000 JERCT _'_ OTHER: $ B', )rOMOBILE LIABILITY 61UEAQ10258 05/31/2018 05/31/2019 COMBINED SINGLE LIMIT 1,000,000 (Ea accident) " $ X ANY AUTO BODILY INJURY(Per person) $ . OWNED SCHEDULED X X BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS HIREDNON-OWNED PROPERTY DAMAGE $ X AUTOS ONLY y AUTOS ONLY (Per accident) $ C UMBRELLA LIAB X OCCUR US00078826L118A 05/31/2018 05/31/2019 EACH OCCURRENCE $ 5,000,000 X EXCESS LIAB CLAIMS-MADE X X AGGREGATE $ 5,000,000 DED RETENTION$ $ A WORKERS COMPENSATION 61 WEAQI0215 05/31/2018 05/31/2019 X STATUTE OTH- ER AND EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE_Y/N E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? N. NIA X (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 D Contractors'Professional 13CPIB18055 05/31/2018 05/31/2019 Each Professional Incident $ 1,000,000 Aggregate Limit $ 1,000,000 $ $ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Project Name:Pearland Fire Station#8 The City of Pearland,its successors and assigns,and the Engineer,any officers,employees,or agents of such persons or entities are included as an Additional Insured with respect to General Liability and Automobile Liability coverages,where required by written contract. General Liability coverage is primary and non-contributory,where required by written contract. Waivers of Subrogation are provided on behalf of The City of Pearland,its successors and assigns,and the Engineer,any officers, employees,or agents of such persons or entities with respect to Workers'Compensation,General Liability and Automobile Liability coverages,where required by written contract. Excess Liability coverage follows form. Subject to policy forms,terms,conditions,limitations and exclusions. In the event of cancellation by the insurance. companies,the policies have been endorsed to provide(30)days Notice of Cancellation(except for non-payment)to the certificate holder shown below. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Pearland AUTHORIZED REPRESENTATIVE _ 3519Liberty Drive Pear . ( Pearland,TX 77581 I Page 1 of 1 ©1988-2015 ACORD CORPORATION. All rights reserved. Ar+non"JC i')nacrnn This SPECIAL MULTI-FLEX POLICY is provided by the stock insurance company(s) of The Hartford Insurance Group, shown below. COMMON POLICY DECLARATIONS POLICY NUMBER: 61 UEA QI0214 S5 THE RENEWAL OF: 61 UEA QI0214 HARTFORD Named Insured and Mailing Address: DUROTECH LP (GENERAL PARTNER: DUROT (No.,Street,Town,State,Zip Code) ECH GP LLC) ; DUROTECH INC GENERAL 11931 WICKCHESTER LN STE 205 HOUSTON , TX 77043 (HARRIS COUNTY) Policy Period: From 05/31/18 To 05/31/19 12:01 A.M. , Standard time at your mailing address shown above. In return for the payment of the premium, and subject to all of the terms of this policy, we agree with you to provide . insurance as stated in this policy. The Coverage Parts that are a part of this policy are listed below. The Advance Premium shown may be subject to adjustment. Total Advance Premium: Coverage Part and Insurance Company Summary Advance Premium COMMERCIAL GENERAL LIABILITY EMPLOYEE BENEFITS LIABILITY DATA BREACH COVERAGE PART . HARTFORD UNDERWRITERS INSURANCE COMPANY ONE HARTFORD PLAZA HARTFORD, CONNECTICUT 06155 Form Numbers of Coverage Parts, Forms and Endorsements that are a part of this policy and that are not • listed in the Coverage Parts. HM0001 IL00171198 HM99011185 IH09850115 IH99400409 IH99410409 IL00210908 IL02751113 HC00051212 HC00100798 HC00200295 Agent/Broker Name: MCGRIFF SEIBELS & WILLIAMS INC • Countersigned by ea.? Cad 05/30/18 (Where required by law) - Authorized Representative Date . Form HM 00 10 01 07 COMMERCIAL GENERAL LIABILITY - COVERAGE PART - DECLARATIONS POLICY NUMBER: 61 UEA QI0214 This COMMERCIAL GENERAL LIABILITY COVERAGE PART consists of: A. This Declarations; B. Commercial General Liability Schedule; C. Commercial General Liability Coverage Form; and D. Any Endorsements issued to be a part of this Coverage Part and listed below. LIMITS OF INSURANCE The Limits of Insurance, subject to all the terms of this Policy that apply, are: Each Occurrence Limit $1,000,000 • Damage to Premises Rented to You Limit -Any One Premises $300,000 Medical Expense Limit Any One Person $10,000 Personal and Advertising Injury Limit $1,000,000 General Aggregate Limit, $2,000,000 (other than Products-Completed Operations) Products-Completed Operations Aggregate Limit $2,000,000 ADVANCE PREMIUM: AUDIT PERIOD: ANNUAL AUDIT Except in this Declarations, when we use the word "Declarations" in this Coverage Part, we mean this "Declarations" or the "Common Policy Declarations." Form Numbers of Coverage Forms, Endorsements and Schedules that are part of this Coverage Part: HC70010605 CG25020798 HC00880916 HC21231001 HC21260390 HC21400914 HC21820605 HC23700115 HC24981214 HC30060916_ CH-W.010916'7 HG01030606 HG21020204 HS24240317 `HST 8k30x7.x10 CG01131204 CG03000196 HC20311210 HC21370305 HC21900608 HC21930304 HG21210206 HS03260713 HS21381014 IL01680312 HC12101185T IH12011185 GH27750616 - AMENDED EXCESS OF WRAP COVERGE DESIGNATED PROJECTS - PER. EXPIRING IH12011185 GH30510610 - EFIS EXCEPTION FORM WITH FILL IN ATTACHED IN SIEBEL Form HC 00 10 07 98 • COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. (1) The "bodily injury" or"property damage" is Read the entire policy carefully to determine rights, caused by an "occurrence" that takes duties and what is and is not covered. place in the"coverage territory'; Throughout this policy the words "you" and "your" (2) The "bodily injury" or "property damage" refer to the Named Insured shown in the occurs during the policy period; and Declarations, and any other person or organization (3) Prior to the policy period, no insured listed qualifying as a Named Insured under this policy. The under Paragraph 1. of Section II - Who Is words "we", "us" and "our" refer to the stock An Insured and no "employee" authorized insurance company member of The Hartford by you to give or receive notice of an providing this insurance. "occurrence" or claim, knew that the The word "insured" means any person or "bodily injury" or "property damage" had organization qualifying as such under Section II - occurred, in whole or in part. If such a Who Is An Insured. listed insured or authorized "employee" Other words and phrases that appear in quotation knew, prior to the policy period, that the marks have special meaning. Refer to Section V - "bodily injury" or "property damage" Definitions. occurred, then any continuation, change SECTION I-COVERAGES or resumption of such "bodily injury" or "property damage" during or after the COVERAGE A BODILY INJURY AND PROPERTY policy period will be deemed to have been DAMAGE LIABILITY known prior to the policy period. 1. Insuring Agreement c. "Bodily injury" or "property damage" will be a. We will pay those sums that the insured deemed to have been known to have becomes legally obligated to pay as damages occurred at the earliest time when any because of "bodily injury" or "property insured listed under Paragraph 1. of Section II damage" to which this insurance applies. We - Who Is An Insured or any "employee" will have the right and duty to defend the authorized by you u to give or receive notice of insured against any "suit" seeking those im: damages. However, we will have no duty to (1) Reports all, or any part, of the "bodily • defend the insured against any "suit" seeking injury" or "property damage" to us or any damages for "bodily injury" or "property other insurer; damage" to which.this insurance does not (2) We may, at our discretion, investigate Receives a written or verbal demand or any"occurrence" and settle any claim or"suit" claim for damages because of the "bodily injury" or"property damage"; or that may result. But: (1) The amount we will pay for damages is (3) Becomes aware byany other means that limited as described in Section III - Limits "bodily injury" or eany damage has occurred or has begun to occur. Of Insurance;and (2) Our right and duty to defend ends when d. Damages because of "bodily injury" include • damages claimed by any person or we have used up the applicable limit of insurance in the payment of judgments or organization for care, loss of services or death resulting at any time from the "bodily settlements under Coverages A or B or injury medical expenses under Coverage C. . e. Incidental Medical Malpractice And Good No other obligation or liability to pay sums or Samaritan Coverage perform acts or services is covered unless explicitly provided for under Supplementary "Bodily injury" arising out of the rendering of Payments- Coverages A and B. or failure to render the following health care services by any "employee" or "volunteer b. This insurance applies to "bodily injury" and "property damage" only if: worker" shall be deemed to be caused by an "occurrence"for: • HG 00 01 09 16 Page 1 of 21 ©2016 The Hartford (Includes copyrighted material of Insurance Services Office, Inc. with its permission.) • (1) Professional health care services such as: (a) Liability to such party for, or for the (a) Medical, surgical, dental, laboratory, x- cost of, that party's defense has also ray or nursing services or treatment, been assumed in the same "insured _' contract"; and advice or instruction, or the related furnishing of food or beverages; (b)Such attorney fees and litigation (b)Any health or therapeutic service, expenses are for defense of that party treatment,advice or instruction; or against a civil or alternative dispute resolut(c)The furnishing or dispensing of drugs damagesn proceeding t in which or medical, dental, or surgical supplies to which this insurance 9 pp applies are alleged. or appliances; or (2) First aid services, which include: c. Liquor Liability "Bodily injury" or"property damage"for which (a) Cardiopulmonary resuscitation, any insured may be held liable by reason of: whether performed manually or with a defibrillator; or (1) Causing or contributing to the intoxication (b)Services performed as a Good of any person; Samaritan. (2) The furnishing of alcoholic beverages to a For the purpose of determiningthe limits of person under the legal drinking age or P p under the influence of alcohol; or insurance, any act or omission together with all related acts or omissions in the furnishing (3) Any statute, ordinance or regulation of these services to any one person will be relating to the sale, gift, distribution or use considered one"occurrence". of alcoholic beverages. However, this Incidental Medical Malpractice This exclusion applies even if the claims And Good Samaritan Coverage provision against any insured allege negligence or applies only if you are not engaged in the other wrongdoing in: business or occupation of providing any of the (a)The supervision, hiring, employment, services described in this provision. training or monitoring of others by that 2. Exclusions insured; or This insurance does not apply to: (b) Providing or failing to provide ' a. Expected Or Intended Injury transportation with respect to any p 1 y person that may be under the influence "Bodily injury" or"property damage" expected of alcohol; or intended from the standpoint of the if the "occurrence" which caused the "bodily insured. This does not apply to injury" or "property damage", involved that "bodily injury,� "property property damage" resulting which is described in Paragraph (1), (2) or(3) from the use of reasonable force to protect above. persons or property. b. Contractual LiabilityHowever, this exclusion applies only if you are in the business of manufacturing, . "Bodily injury" or"property damage"for which distributing, selling, serving or furnishing the insured is obligated to pay damages by alcoholic beverages. For the purposes of this reason of the assumption of liability in a exclusion, permitting a person to bring contract or agreement. This exclusion does alcoholic beverages on your premises, for not apply to liability for damages: consumption on your premises, whether or (1) That the insured would have in the not a fee is charged or a license is required absence of the contract or agreement; or for such activity, is not by itself considered the (2) Assumed in a contract or agreement that business of selling, serving or furnishing alcoholic beverages. is an "insured contract", provided the "bodily injury" or "property damage" d. Workers'Compensation And Similar Laws • occurs subsequent to the execution of the Any obligation of the insured under a workers' contract or agreement. Solely for the compensation, disability benefits or purposes of liability assumed in an unemployment compensation law or any "insured contract", reasonable attorney similar law. fees and necessary litigation expenses e. Employer's Liability incurred by or for a party other than an insured are deemed to be damages "Bodily injury"to: because of "bodily injury" or "property (1) An "employee"of the insured arising out of damage", provided: and in the course of: Page 2of21 HG00010916 (a) Employment by the insured; or (c)Which are or were at any time (b)Performing duties related to the transported, handled, stored, treated, �, conduct of the insured's business; or disposed of, or processed as waste by (2) The spouse, child, parent, brother or sister orfor: of that "employee" as a consequence of (i) Any insured; or Paragraph(1) above. (ii) Any person or organization for This exclusion applies: whom you may be legally (1) Whether the insured may be liable as an responsible; employer or in any other capacity; and (d)At or from any premises, site or (2) To any obligation to share damages with location on which any insured or any or repay someone else who must pay contractors or subcontractors working damages because of the injury. directly or indirectly on any insured's This exclusion does not apply to liability behalf are performing operations if the "pollutants" are brought on or to the assumed by the insured under an "insured premises, site or location in connection contract". with such operations by such insured, . f. Pollution contractor or subcontractor. However, (1) "Bodily injury" or "property damage" this subparagraph does not apply to: arising out of the actual, alleged or (i) "Bodily injury"or"property damage" threatened discharge, dispersal, seepage, release or escape of arising out of the escape of fuels, migration,atlubricants or other operating fluids "pollwhich are needed to perform the (a)At or from any premises, site or normal electrical, hydraulic or location which is or was at any time mechanical functions necessary for owned or occupied by, or rented or the operation of"mobile equipment" loaned to, any insured. However, this or its parts, if such fuels, lubricants subparagraph does not apply to: or other operating fluids escape (i) "Bodily injury" if sustained within a from a vehicle part designed to building and caused by smoke, hold, store or receive them. This ( ) fumes, vapor or soot produced by exception does not apply if the \.-', or originating from equipment that "bodily injury" or"property damage" is used to heat, cool or dehumidify arises out of the intentional the building, or equipment that is discharge, dispersal or release of used to heat water for personal the fuels, lubricants or other use, by the building's occupants or operating fluids, or if such fuels, their guests; lubricants or other operating fluids (ii) "Bodily injury" or"property damage" are brought on or to the premises, for which you may be held liable, if site or location with the intent that you are a-contractor and the owner they be discharged, dispersed or or lessee of such premises, site or released as part of the operations location has been added to your being performed by such insured, policy as an additional insured with contractor or subcontractor; respect to your ongoing operations (ii) "Bodily injury"or"property damage" performed for that additional sustained within a building and insured at that premises, site or caused by the release of gases, location and such premises, site or fumes or vapors from materials • location is not and never was brought into that building in owned or occupied by, or rented or connection with operations being loaned to; any insured, other than performed by you or on your behalf that additional insured; or by a contractor or subcontractor; or (iii) "Bodily injury" or"property damage" (iii) "Bodily injury"or"property damage" arising out of heat, smoke or fumes arising out of heat, smoke or fumes from a"hostile fire"; from a"hostile fire"; or (b)At or from any premises, site or (e)At or from any premises, site or location which is or was at any time location on which any insured or any , used by or for any insured or others for contractors or subcontractors working r' ,, the handling, storage, disposal, directly or indirectly on any insured's processing or treatment of waste; behalf are performing operations if the HG 00 01 09 16 Page 3 of 21 operations are to test for, monitor, (4) Liability assumed under any "insured clean up, remove, contain, treat, contract" for the ownership, maintenance detoxify or neutralize, or in any way or use of aircraft or watercraft; respond to, or assess the effects of, p (5) "Bodily injury" or "property damage" "pollutants". arising out of: • (2) Any loss, cost or expense arising out of (a) The operation of machinery or any: equipment that is attached to, or part (a) Request, demand, order or statutory or of, a land vehicle that would qualify regulatory requirement that any under the definition of "mobile insured or others test for, monitor, equipment" if it were not subject to a clean up, remove, contain, treat, compulsory or financial responsibility detoxify or neutralize, or in any way law or other motor vehicle insurance respond to, or assess the effects of, law where it is licensed or principally "pollutants"; or garaged;or (b)Claim or suit by or on behalf of a (b) The operation of any of the machinery governmental authority for damages or equipment listed in Paragraph f.(2) because of testing for, monitoring, or f.(3) of the definition of "mobile cleaning up, removing, containing, equipment"; or treating, detoxifying or neutralizing, or (6) An aircraft that is not owned by any in any way responding to, or assessing insured and is hired, chartered or loaned the effects of,"pollutants". with a paid crew. However, this exception However,this paragraph does not apply to does not apply if the insured has any other liability for damages because of "property insurance for such "bodily injury" or damage" that the insured would have in "property damage", whether the other the absence of such request, demand, insurance is primary, excess, contingent order or statutory or regulatory or on any other basis. requirement, or such claim or "suit" by or h. Mobile Equipment on behalf of a governmental authority. "Bodily injury" or "property damage" arising g. Aircraft,Auto Or Watercraft out of: "Bodily injury" or "property damage" arising (1) The transportation of "mobile equipment" out of the ownership, maintenance, use or by an "auto" owned or operated by or entrustment to others of any aircraft, "auto"or rented or loaned to any insured;or watercraft owned or operated by or rented or (2) The use of"mobile equipment" in, or while loaned to any insured. Use includes operation in practice for, or while being prepared for, and"loading or unloading". any prearranged racing, speed, This exclusion applies even if the claims demolition, or stunting activity. against any insured allege negligence or i. War other wrongdoing in the supervision, hiring, employment, training or monitoring of others "Bodily injury" or"property damage", however by that insured, if the "occurrence" which caused, arising,directly or indirectly, out of: caused the "bodily injury" or "property (1) War, including undeclared or civil war; damage" involved the ownership, (2) Warlike action by a military force, including maintenance, use or entrustment to others of action in hindering or defending against an any aircraft, "auto" or watercraft that is owned actual or expected attack, by any ' or operated by or rented or loaned to any government, sovereign or other authority insured. using military personnel or other agents; This exclusion does not apply to: or (1) A watercraft while ashore on premises you (3) Insurrection, rebellion, revolution, usurped own or rent; power, or action taken by governmental (2) A watercraft you do not own that is: authority in hindering or defending against (a) Less than 51 feet long; and any of these. (b) Not being used to carry persons for a .1. Damage To Property charge; "Property damage"to: • (3) Parking an "auto" on, or on the ways next (1) Property you own, rent, or occupy, to, premises you own or rent, provided the including any costs or expenses incurred "auto" is not owned by or rented or loaned by you, or any other person, organization to you or the insured; or entity, for repair, replacement, Page 4 of 21 HG 00 01 09 16 enhancement, restoration or maintenance m. Damage To Impaired Property Or Property of such property for any reason, including Not Physically Injured , prevention of injury to a person or damage "Property damage" to "impaired property" or to another's property; property that has not been physically injured, (2) Premises you sell, give away or abandon, arising out of: if the "property damage" arises out of any (1) A defect, deficiency, inadequacy or part of those premises; dangerous condition in "your product" or (3) Property loaned to you; "your work"; or (4) Personal property in the care, custody or (2) A delay or failure by you or anyone acting control of the insured; on your behalf to perform a contract or (5) That particular part of real property on agreement in accordance with its terms. , which you or any contractors or This exclusion does not apply to the loss of subcontractors use of other property arising out of sudden working directly or indirectly on your behalf and accidental physical injury to "your are performing operations, if the "property product" or "your work" after it has been put damage"arises out of those operations; or to its intended use. (6) That particular part of any property that n. Recall Of Products, Work Or Impaired must be restored, repaired or replaced Property because "your work" was incorrectly performed on it. Damages claimed for any loss, cost or Paragraphs (1), (3) and (4) of this exclusion expense incurred by you or others for the loss • do not apply to "property damage"(other than of use, withdrawal, recall, inspection, repair, damage by fire) to premises, including the replacement, adjustment, removal or disposal of: contents of such premises, rented to you for a period of seven or fewer consecutive days. A (1) "Your product"; separate limit of insurance applies to Damage (2) "Your work"; or To Premises Rented To You as described in . Section III-Limits Of Insurance. (3) "Impaired property"; Paragraph (2) of this exclusion does not apply if such product, work, or property is withdrawn if the premises are "your work" and were or recalled from the market or from use by never occupied, rented or held for rental by any person or organization because of a , known or suspected defect, deficiency, you. Paragraphs (3) and (4) of this exclusion do inadequacy or dangerous condition in it. not apply to "property damage" arising from o. Personal And Advertising Injury the use of elevators. "Bodily injury" arising out of "personal and Paragraphs (3), (4), (5) and (6) of this advertising injury". exclusion do not apply to liability assumed p. Access or Disclosure Of Confidential Or under a sidetrack agreement. Personal Information And Data-related Paragraphs (3) and (4) of this exclusion do Liability not apply to "property damage" to borrowed Damages arising out of: . equipment while not being used to perform (1) Any access to or disclosure of any operations at the job site. person's or organization's confidential or Paragraph(6) of this exclusion does not apply personal information, including patents, to "property damage" included in the trade secrets, processing methods, "products-completed operations hazard". customer lists, financial information, credit k. Damage To Your Product card information, health information or any "Property damage" to "your product" arising other type of nonpublic information; or out of it or any part of it. (2) The loss of, loss of use of, damage to, I. Damage To Your Work corruption of, inability to access, or "Property damage" to "your work" arising out inability to manipulate electronic data. of it or any part of it and included in the This exclusion applies even if damages are "products-completed operations hazard". claimed for notification costs, credit This exclusion does not apply if the damaged monitoring expenses, forensic expenses, work or the work out of which the damage public relations expenses or any other loss, ------ arises was performed on your behalf by a cost or expense incurred by you or others subcontractor. arising out of that which is described in Paragraph(1) or(2) above. HG 00 01 0916 Page 5 of 21 However, unless Paragraph (1) above detoxifying or neutralizing or in any applies, this exclusion does not apply to way responding to or assessing the damages because of"bodily injury". effects of an"asbestos hazard". As used in this exclusion, electronic data s. Recording And Distribution Of Material Or means information, facts or programs stored Information In Violation Of Law as or on, created or used on, or transmitted to "Bodily injury" or "property damage" arising or from computer software, including systems directly or indirectly out of any action or and applications software, hard or floppy omission that violates or is alleged to violate: disks, CD-ROMS, tapes, drives, cells, data (1) The Telephone Consumer Protection Act processing devices or any other media which (TCPA), including any amendment of or are used with electronically controlled addition to such law; equipment. q. Employment-Related Practices (2) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; "Bodily injury"to: (3) The Fair Credit Reporting Act(FCRA), and (1) A person arising out of any "employment- any amendment of or addition to such law, related practices"; or including the Fair and Accurate Credit (2) The spouse, child, parent, brother or sister Transaction Act(FACTA); or of that person as a consequence of"bodily (4) Any federal, state or local statute, injury" to that person at whom any ordinance or regulation, other than the "employment-related practices" are TCPA or CAN-SPAM Act of 2003 or FCRA directed. and their amendments and additions, that This exclusion applies: addresses, prohibits or limits the printing, (1) Whether the injury-causing event dissemination, disposal, collecting, described in the definition of"employment- recording, sending, transmitting, related practices" occurs before communicating or distribution of material employment, during employment or after or information. employment of that person; Damage To Premises Rented To You - (2) Whether the insured may be liable as an Exception For Damage By Fire, Lightning Or • ` employer or in any other capacity; and Explosion �\___ (3) To any obligation to share damages with Exclusions c.through h. and j. through n. do not or repay someone else who must pay apply to damage by fire, lightning or explosion to damages because of the injury, premises while rented to you or temporarily r. Asbestos occupied by you with permission of the owner. A separate limit of insurance applies to this (1) "Bodily injury" or "property damage" coverage as described in Section III - Limits Of arising out of the"asbestos hazard". Insurance. (2) Any damages, judgments, settlements, COVERAGE B PERSONAL AND ADVERTISING • loss, costs or expenses that: INJURY LIABILITY (a) May be awarded or incurred by reason 1. Insuring Agreement of any claim or suit alleging actual or a. We will pay those sums that the insured threatened injury or damage of any becomes legally obligated to pay as damages nature or kind to persons or property because of "personal and advertising injury" which would not have occurred in to which this insurance applies. We will have whole or in part but for the "asbestos the right and duty to defend the insured hazard"; against any "suit" seeking those damages. (b)Arise out of any request, demand, However, we will have no duty to defend the order or statutory or regulatory insured against any "suit" seeking damages requirement that any insured or others for "personal and advertising injury" to which test for, monitor, clean up, remove, this insurance does not apply.We may, at our encapsulate, contain, treat, detoxify or discretion, investigate any offense and settle neutralize or in any way respond to or any claim or"suit"that may result. But: assess the effects of an "asbestos (1) The amount we will pay for damages is hazard"; or limited as described in Section III - Limits (c) Arise out of any claim or suit for Of Insurance; and damages because of testing for, (2) Our right and duty to defend end when we r--, monitoring, cleaning up, removing, encapsulating, containing, treating, have used up the applicable limit of insurance in the payment of judgments or Page 6 of 21 HG 00 01 0916 • • settlements under Coverages A or B or h. Wrong Description Of Prices medical expenses under Coverage C. "Personal and advertising injury"arising out of No other obligation or liability to pay sums or the wrong description of the price of goods, perform acts or services is covered unless products or services. explicitly provided for under Supplementary i. Infringement Of Intellectual Property Payments-Coverages A and B. Rights . b. This insurance applies to "personal and (1) "Personal and advertising injury" arising advertising injury" caused by an offense out of any actual or alleged infringement arising out of your.business but only if the or violation of any intellectual property offense was committed in the ""coverage rights such as copyright, patent, territory" during the policy period. trademark, trade name,trade secret, trade 2. Exclusions dress, service mark or other designation This insurance does not apply to: of origin or authenticity; or a. Knowing Violation Of Rights Of Another (2) Any injury or damage alleged in any clam or "suit" that also alleges an infringement "Personal and advertising injury"arising out of by, at the direction or or violation of any intellectual property an offense committed right, whether such allegation of with the consent or acquiescence of the infringement or violation is made by you or insured with the .expectation of inflicting by any other party involved in the claim or "personal and advertising injury". "suit", regardless of whether this b. Material Published With Knowledge Of insurance would otherwise apply. Falsity However, this exclusion does not apply if the "Personal and advertising injury" arising out of only allegation in the claim or "suit" involving oral, written or electronic publication, in any any intellectual property right is limited to: manner, of material, if done by or at the (1) Infringement, in your"advertisement",of: • direction of the insured with knowledge of its falsity. (a) Copyright; c. Material Published.Prior To Policy Period (b) Slogan;or "Personal Personal and advertising injury"arising out of (c) Title of any literary or artistic work; or oral, written or electronic publication, in any (2) Copying, in your "advertisement", a manner, of material whose first publication person's or organization's "advertising took place before the beginning of the policy idea"or style of"advertisement". period. j. Insureds In. Media And Internet Type d. Criminal Acts Businesses "Personal and advertising injury" arising out of "Personal and advertising injury" committed a criminal act committed by or at the direction by an insured whose business is: of the insured. (1) Advertising, broadcasting, publishing or e. Contractual Liability telecasting; "Personal and advertising injury"for which the (2) Designing or determining content of web insured has assumed liability in a contract or sites for others; or agreement. This exclusion does not apply to (3) An Internet search, access, content or liability for damages that the insured would service provider. have in the absence of the contract or agreement. However, this exclusion does not apply to • Paragraphs a., b. and c. of the definition of f. Breach Of Contract "personal and advertising injury" under the "Personal and advertising injury"arising out of a Definitions Section. breach of contract, except an implied contract to For the purposes of this exclusion,the placing use another's "advertising idea" in your of frames, borders or links, or advertising, for "advertisement". g you or others anywhere on the Internet, is not g. Quality Or Performance Of Goods - Failure by itself, considered the business of To Conform To Statements advertising, broadcasting, publishing or "Personal and advertising injury"arising out of telecasting. the failure of goods, products or services to k. Electronic Chatrooms Or Bulletin Boards conform with any statement of quality or "Personal and advertising injury"arising out of performance made in your"advertisement". an electronic chatroom or bulletin board the HG 00 01 09 16 Page 7 of 21 insured hosts, owns, or over which the (4) Computer code, software or programming insured exercises control. used to enable: I. Unauthorized Use Of Another's Name Or (a)Your web site; or Product (b)The presentation or functionality of an "Personal and advertising injury"arising out of "advertisement" or other content on the unauthorized use of another's name or your web site. product in your e-mail address, domain name q. Right Of Privacy Created By Statute or metatags, or any other similar tactics to mislead another's potential customers. "Personal and advertising injury"arising out of the violation of a person's right of privacy m. Pollution created by any state or federal act. "Personal and advertising injury" arising out of However, this.exclusion does not apply to the actual, alleged or threatened discharge, liability for damages that the insured would dispersal, seepage, migration, release or have in the absence of such state or federal escape of"pollutants"at any time. act. n. Pollution-Related r. Violation Of Anti-Trust law Any loss, cost or expense arising out of any: "Personal and advertising injury"arising out of (1) Request, demand, order or statutory or a violation of any anti-trust law. regulatory requirement that any insured or s. Securities others test for, monitor, clean up, remove, "Personal and advertising injury" arising out of contain, treat, detoxify or neutralize, or in the fluctuation in price or value of any stocks, any way respond to, or assess the effects bonds or other securities. • of, "pollutants"; or . (2) Claim or suit by or on behalf of a t. Recording And Distribution Of Material Or governmental authority for damages Information In Violation Of Law because of testing for, monitoring, "Personal and advertising injury" arising cleaning up, removing, containing, directly or indirectly out of any action or treating, detoxifying or neutralizing, or in omission that violates or is alleged to violate: any way responding to, or assessing the (1) The Telephone Consumer Protection Act effects of, "pollutants". (TCPA), including any amendment of or o. War addition to such law; "Personal and advertising injury", however (2) The CAN-SPAM Act of 2003, including . caused, arising, directly or indirectly, out of: any amendment of or addition to such law; (1) War, including undeclared or civil war; (3) The Fair Credit Reporting Act(FCRA), and (2) Warlike action by a military force, including any amendment of or addition to such law, action in hindering or defending against an including the Fair and Accurate Credit actual or expected attack, by any Transaction Act(FACTA); or government, sovereign or other authority (4) Any federal, state or local statute, using military personnel or other agents; ordinance or regulation, other than the or TCPA or CAN-SPAM Act of 2003 or FCRA (3) Insurrection, rebellion, revolution, usurped and their amendments and additions, that power, or action taken by governmental addresses, prohibits or limits the printing, authority in hindering or defending against dissemination, disposal, collecting, any of these. recording, sending, transmitting, Internet Advertisements And Content Of communicating or distribution of material p. or information. Others u. Employment-Related Practices "Personal and advertising injury" arising out of: "Personal and advertising injury"to: (1) An "advertisement"for others on your web (1) A person arising out of any "employment- site; related practices"; or (2) Placing a link to a web site of others on (2) The spouse, child, parent, brother or sister of that person as a consequence of your web site; "personal (3) Content, includinginformation, sounds, and advertising injuryto that person at whom any "employment-related text, graphics, or images from a web site practices"are directed. of others displayed within a frame or border on your web site; or Page 8of21 HG00010916 This exclusion applies: COVERAGE C MEDICAL PAYMENTS (1) Whether the injury-causing event 1. Insuring Agreement described in the definition of"employment- a. We will pay medical expenses as described related practices" occurs before below for "bodily injury" caused by an employment, during employment or after accident: employment of that person; (1) On premises you own or rent; (2) Whether the insured may be liable as an (2) On ways next to premises you own or employer or in any other capacity; and • (3) To any obligation to share damages with rent; or or repay someone else who must pay (3) Because of your operations; damages because of the injury. provided that: v. Asbestos (1) The accident takes place in the "coverage (1) "Personal and advertising injury" arising territory"and during the policy period; out of the"asbestos hazard". (2) The expenses are incurred and reported (2) Any damages, judgments, settlements, to us within three years of the date of the loss, costs or expenses that: accident; and (a) May be awarded or incurred by reason (3) The injured person submits to of any claim or suit alleging actual or examination, at our expense, by threatened injury or damage of any physicians of our choice as often as we nature or kind to persons or property reasonably require. which would not have occurred in b. We will make these payments regardless of whole or in part but for the "asbestos fault. These payments will not exceed the hazard"; applicable limit of insurance. We will pay (b)Arise out of any request, demand, reasonable expenses for: order or statutory or regulatory (1) First aid administered at the time of an requirement that any insured or others accident; test for, monitor, clean up, remove, (2) Necessary medical, surgical, X-ray and encapsulate, contain, treat, detoxify or dental services, including prosthetic neutralize or in any way respond to or devices; and assess the effects of an "asbestos hazard"; or (3) Necessary ambulance, hospital, professional nursing and funeral services. (c)Arise out of any claim or suit for damages because of testing for, 2. Exclusions monitoring, cleaning up, removing, We will not pay expenses for"bodily injury": encapsulating, containing, treating, a. Any Insured detoxifying or neutralizing or in any To any insured, except"volunteer workers". way responding to or assessing the effects of an"asbestos hazard". b. Hired Person w. Access Or Disclosure Of Confidential Or To a person hired to do work for or on behalf • Personal Information of any insured or a tenant of any insured. "Personal and advertising injury" arising out of c. Injury On Normally Occupied Premises any access to or disclosure of any person's or To a person injured on that part of premises organization's confidential or personal you own or rent that the person normally information, including patents, trade secrets, occupies. processing methods, customer lists, financial d. Workers Compensation And Similar Laws information, credit card information, health information or any other type of nonpublic To a person, whether or not an "employee" of information. any insured, if benefits for the"bodily injury"are This exclusion applies even if damages are payable or must be provided under a workers' compensation or disability benefits law or a claimed for notification costs, credit similar law. monitoring expenses, forensic 'expenses, public relations expenses or any other loss, e. Athletics Activities cost or expense incurred by you or others To a person injured while practicing, arising out of any access to or disclosure of instructing or participating in any physical any person's or organization's confidential or exercises or games, sports, or athletic personal information. contests. HG 00 01 09 16 Page 9 of 21 • f. Products-Completed Operations Hazard assumed by the insured in the same "insured Included within the "products-completed contract'; operations hazard".. d. The allegations in the "suit" and the g. Coverage A Exclusions information we know about the "occurrence" Excluded under Coverage A. are such that no conflict appears to exist between the interests of the insured and the SUPPLEMENTARY PAYMENTS - COVERAGES interests of the indemnitee; A AND B e. The indemnitee and the insured ask us to 1. We will pay, with respect to any claim we conduct and control the defense of that investigate or settle, or any "suit" against an indemnitee against such "suit" and agree that ' insured we defend: we can assign the same counsel to defend a. All expenses we incur. the insured and the indemnitee; and b. Up to $1,000 for cost of bail bonds required f. The indemnitee: because of accidents or traffic law violations (1) Agrees in writing to: arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. (a) Cooperate with us in the investigation, We do not have to furnish these bonds. settlement or defense of the"suit"; c. The cost of appeal bonds or bonds to release (b) Immediately send us copies of any attachments, but only for bond amounts demands, notices, summonses or legal within the applicable limit of insurance.We do papers received in connection with the not have to furnish these bonds. "suit"; d. All reasonable expenses incurred by the (c) Notify any other insurer whose. insured at our request to assist us in the coverage is available to the investigation or defense of the claim or"suit", indemnitee; and including actual loss of earnings up to $500 a (d)Cooperate with us with respect to day because of time off from work. coordinating other applicable e. All court costs taxed against the insured in insurance available to the indemnitee; the "suit". However, such costs do not and include attorneys' fees, attorneys' expenses, (2) Provides us with written authorization to: witness or expert fees, or any other expenses — of a party taxed to the insured. (a) Obtain records and other information f. Prejudgment interest awarded against the related to the"suit"; and insured on that part of the judgment we pay. If (b)Conduct and control the defense of the we make an offer to pay the applicable limit of indemnitee in such"suit". insurance, we will not pay any prejudgment So long as the above conditions are met, interest based on that period of time after the attorneys' fees incurred by us in the defense of offer. that indemnitee, necessary litigation expenses g. All interest on the full amount of any judgment incurred by us and necessary litigation expenses that accrues after entry of the judgment and incurred by the indemnitee at our request will be • before we have paid, offered to pay, or paid as Supplementary Payments. deposited in court the part of the judgment Notwithstanding the provisions of Paragraph that is within the applicable limit of insurance. 2.b.(2) of Section I - Coverage A - Bodily Injury These payments will not reduce the limits of And Property Damage Liability, such payments insurance. will not be deemed to be damages for "bodily 2. If we defend an insured against a "suit" and an injury"and "property damage"and will not reduce the limits of insurance. indemnitee of the insured is also named as a party to the "suit", we will defend that indemnitee Our obligation to defend an insured's indemnitee if all of the following conditions are met: and to pay for attorneys' fees and necessary a. The "suit" against the indemnitee seeks litigation expenses as Supplementary Payments ' damages for which the insured has assumed ends when: the liability of the indemnitee in a contract or a. We have used up the applicable limit of agreement that is an"insured contract"; insurance in the payment of judgments or b. This insurance applies to such liability settlements; or assumed by the insured; b. The conditions set forth above, or the terms of c. The obligation to defend, or the cost of the the agreement described in Paragraph f. defense of, that indemnitee, has also been above, are no longer met. Page 10 of 21 HG 00 01 09 16 SECTION II -WHO IS AN INSURED "volunteer worker" as a consequence 1. If you are designated in the Declarations as: of Paragraph(1)(a) above; % a. An individual, you and your spouse are (c) For which there is any obligation to insureds, but only with respect to the conduct share damages with or repay someone of a business of which you are the sole else who must pay damages because owner. of the injury described in Paragraphs , b. A partnership or joint venture, you are an (1)(a)or(1)(b) above; or insured. Your members, your partners, and (d)Arising out of his or her providing or their spouses are also insureds, but only with failing to provide professional health respect to the conduct of your business. care services. c. A limited liability company, you are an If you are not in the business of providing insured. Your members are also insureds, but professional health care services: only with respect to the conduct of your (a) Subparagraphs(1)(a), (1)(b) and (1)(c) business. Your managers are insureds, but above do not apply to any "employee" only with respect to their duties as your or"volunteer worker" providing first aid managers. services; and d. An organization other than a partnership,joint (b)Subparagraph (1)(d) above does not venture or limited liability company, you are apply to any nurse, emergency medical an insured. Your "executive officers" and technician or paramedic employed by directors are insureds, but only with respect to you to provide such services. their duties as your officers or directors. Your (2) "Property damage"to property: stockholders are also insureds, but only with respect to their liability as stockholders, (a) Owned, occupied or used by, e. A trust, you are an insured. Your trustees are (b)Rented to, in the care, custody or also insureds, but only with respect to their control of, or over which physical duties as trustees, control is being exercised for any 2. Each of the following is also an insured: purpose by a. Employees And Volunteer Workers you, any of your "employees", "volunteer workers", any partner or. member (if you Your "volunteer workers" only while are a partnership or joint venture), or any performing duties related to the conduct of member (if you are a limited liability your business, or your "employees", other company). than either your"executive officers" (if you are b. Real Estate Manager an organization other than a partnership,joint venture or limited liability company) or your Any person (other than your "employee" or ' managers (if you are a limited liability volunteer worker"), or any organization while company), but only for acts within the scope acting as your real estate manager. of their employment by you or while c. Temporary Custodians Of Your Property performing duties related to the conduct of Any person or organization having proper your business. temporary custody of your property if you die, However, none of these "employees" or but only: "volunteer workers"are insureds for: (1) With respect to liability arising out of the (1) "Bodily injury"or"personal and advertising maintenance or use of that property; and injury": (2) Until your legal representative has been . (a)To you,to yourpartners or members (if appointed. you are a partnership or joint venture), d. Legal Representative If You Die to your members (if you are a limited liability company), to a co-"employee" Your legal representative if you die, but only while in the course of his or her with respect to duties as such. That employment or performing duties representative will have all your rights and related to the conduct of your duties under this Coverage Part. business, or to your other "volunteer e. Unnamed Subsidiary workers" while performing duties Any, subsidiary, and subsidiary thereof, of related to the conduct of your yours which is a legally incorporated entity of • business; which you own a financial interest of more (b)To the spouse, child, parent, brother or than 50% of the voting stock on the effective sister of that co-"employee" or that date of the Coverage Part. HG 00 01 0916 Page 11 of 21 The insurance afforded herein for any A person or organization is an additional insured subsidiary not named in this Coverage Part under this provision only for that period of time as a named insured does not apply to injury required by the contract or agreement. or damage with respect to which such insured However, no such person or organization is an is also a named insured under another policy insured under this provision if such person or or would be a named insured under such organization is included as an insured by an policy but for its termination or the exhaustion endorsement issued by us and made a part of of its limits of insurance. this Coverage Part. 3. Newly Acquired Or Formed Organization a. Vendors Any organization you newly acquire or form, Any person(s) or organization(s) (referred to other than a partnership, joint venture or limited below as vendor), but only with respect to liability company, and over which you maintain "bodily injury" or "property damage" arising financial interest of more than 50% of the voting out of"your products"which are distributed or • stock, will qualify as a Named Insured if there is sold in the regular course of the vendor's no other similar insurance available to that business and only if this Coverage Part organization. However:, provides coverage for "bodily injury" or a. Coverage under this provision is afforded only "property damage" included within the until the 180th day after you acquire or form "products-completed operations hazard". the organization or the end of the policy (1) The insurance afforded the vendor is period,whichever is earlier; subject to the following additional b. Coverage A does not apply to "bodily injury" exclusions: or "property damage" that occurred before This insurance does not apply to: • you acquired or formed the organization; and (a)"Bodily injury" or"property damage"for c. Coverage B does not apply to "personal and which the vendor is obligated to pay advertising injury" arising out of an offense damages by reason of the assumption committed before you acquired or formed the of liability in a contract or agreement. organization. This exclusion does not apply to 4. Nonowned Watercraft liability for damages that the vendor With respect to watercraft you do not own that is would have in the absence of the less than 51 feet long and is not being used to contract or agreement; carry persons for a charge, any person is an (b)Any express warranty unauthorized by insured while operating such watercraft with your you; . permission. Any other person or organization (c)Any physical or chemical change in the responsible for the conduct of such person is product made intentionally by the also an insured, but only with respect to liability vendor; arising out of the operation of the watercraft, and (d)Repackaging, except when unpacked only if no other insurance of any kind is available solely for the purpose of inspection, to that person or organization for this liability. demonstration, testing, or the However, no person or organization is an insured substitution of parts under instructions with respect to: from the manufacturer, and then a. "Bodily injury" to a co-"employee" of the repackaged in the original container; person operating the watercraft; or (e) Any failure to make such inspections, b. "Property damage" to property owned by, adjustments, tests or servicing as the rented to, in the charge of or occupied by you vendor has agreed to make or normally or the employer of any person who is an undertakes to make in the usual insured under this provision. course of business, in connection with 5. Additional Insureds When Required By the distribution or sale of the products; Written Contract, Written Agreement Or (f) Demonstration, installation, servicing Permit or repair operations, except such The following person(s) or organization(s) are an operations performed at the vendor's additional insured when you have agreed, in a premises in connection with the sale of written contract, written agreement or because of the product; a permit issued by a state or political subdivision, (g) Products which, after distribution or that such person or organization be added as an sale by you, have been labeled or additional insured on your policy, provided the relabeled or used as a container, part ( injury or damage occurs subsequent to the or ingredient of any other thing or execution of the contract or agreement. substance by or for the vendor; or Page 12 of 21 HG 0001 09 16 (h)"Bodily injury" or "property damage" omissions of those acting on your behalf: arising out of the sole negligence of the (1) In connection with your premises; or vendor for its own acts or omissions or ',,,,,___ (2)those of its employees or anyone else In the performance of your ongoing operations performed by you or on your acting on its behalf. However, this behalf. exclusion does not apply to: in Sub- With respect to the insurance afforded these (i) The exceptions paragraphs(d)ocontainedr ; or additional insureds, the following additional exclusion applies: (ii) Such inspections, adjustments, This insurance does not apply to "bodily tests or servicing as the vendor has injury", "property damage" or "personal and agreed to make or normally advertising injury" arising out of the rendering undertakes to make in the usual of or the failure to render any professional course of business, in connection services by or for you, including: with the distribution or sale of the products. 1. The preparing, approving, or failing to (2) This insurance does not apply to any prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, insured person or organization, from change orders or drawings and whom you have acquired such products, or any ingredient, part or container, specifications; or entering into, accompanying or containing 2. Supervisory, inspection, architectural or such products. engineering activities. b. Lessors Of Equipment This exclusion applies even if the claims ' (1) Any person(s) or organization(s) from against any insured allege negligence or other wrongdoing in the supervision, hiring, whom you lease equipment; but only with employment, training or monitoring of others respect to their liability for "bodily injury", by that insured, if the "occurrence" which "property damage" or "personal and advertising injury" caused, in whole or in caused the "bodily injury" or "property damage", or the offense which caused the part, by your maintenance, operation or "personal and advertising injury", involved the use of equipment leased to you by such rendering of or the failure to render any person(s) or organization(s). professional services by or for you. (2) With respect to the insurance afforded to these additional insureds this insurance e. Permits Issued By State Or Political Subdivisions does not apply to any "occurrence" which takes place after the equipment lease Any state or political subdivision, but only with expires. respect to operations performed by you or on c. Lessors Of Land Or Premises your behalf for which the state or political subdivision has issued a permit. Any person or organization from whom you With respect to the insurance afforded these lease land or premises, but only with respect additional insureds, this insurance does not to liability arising out of the ownership, apply to: maintenance or use of that part of the land or premises leased to you. (1) "Bodily injury", "property damage" or • With respect to the insurance afforded these "personal and advertising injury" arising additional insureds the following additional out operations performed for the state exclusions apply: or municipality; or This insurance does not apply to: (2) "Bodily injury" or "property damage" included within the "products-completed 1. Any "occurrence" which takes place after operations hazard". you cease to lease that land; or f. Any Other Party 2. Structural alterations, new construction or Any other person or organization who is not demolition operations performed by or on an additional insured under Paragraphs a. behalf of such person or organization. through e. above, but only with respect to d. Architects, Engineers Or Surveyors liability for "bodily injury", "property damage" Any architect, engineer, or surveyor, but only or"personal and advertising injury" caused, in with respect to liability for "bodily injury", whole or in part, by your acts or omissions or "property damage" or "personal and the acts or omissions of those acting on your advertising injury" caused, in whole or in part, behalf: by your acts or omissions or the acts or (1) In the performance of your ongoing operations; HG 00 01 09 16 Page 13 of 21 ' (2) In connection with your premises owned No person or organization is an insured with respect by or rented to you; or to the conduct of any current or past partnership, (3) In connection •with "your work" and joint venture or limited liability company that is not included within the "products-completed shown as a Named Insured in the Declarations. operations hazard", but only if SECTION III-LIMITS OF INSURANCE (a)The written contract or agreement 1. The Most We Will Pay requires you to provide such coverage The Limits of Insurance shown in the to such additional insured; and Declarations and the rules below fix the most we (b)This Coverage Part provides coverage will pay regardless of the number of: for"bodily injury" or"property damage" a. Insureds; included within the "products- b. Claims made or"suits" brought;or completed operations hazard". However: c. Persons or organizations making claims or (1) The insurance afforded to such additional bringing suits . insured only applies to the extent 2. General Aggregate Limit permitted by law; and The General Aggregate Limit is the most we will (2) If coverage provided to. the additional pay for the sum of: insured is required by a contract or a. Medical expenses under Coverage C; • agreement,the insurance afforded to such b. Damages under Coverage A, except additional insured will not be broader than damages because of "bodily injury" or that which you are required by the.contract "property damage" included in the "products- or agreement to provide for such completed operations hazard"; and additional insured. c. Damages under Coverage B. With respect to the insurance afforded to 3. Products-Completed Operations Aggregate these additional insureds, this insurance does Limit not apply to: "Bodily injury", "property damage" or The Products-Completed Operations Aggregate personal and advertising injury arising out of Limit is the most we will pay under Coverage A . (� �1 for damages because of "bodily injury" and the rendering of, or the failure to render, any "property damage" included in the "products- professional architectural, engineering or „ surveying services, including: completed operations hazard . (1) The preparing, approving, or failing to 4. Personal And Advertising Injury Limit prepare or approve, maps, shop drawings, Subject to 2. above, the Personal and opinions, reports, surveys, field orders, Advertising Injury Limit is the most we will pay change orders or drawings and under Coverage B for the sum of all damages specifications; or because of all "personal and advertising injury" (2) Supervisory, inspection, architectural or sustained by any one person or organization. engineering activities. 5. Each Occurrence Limit This exclusion applies even if the claims Subject to 2. or 3. above, whichever applies, the against any insured allege negligence or Each Occurrence Limit is the most we will pay for other wrongdoing in the supervision, hiring, the sum of: employment, training or monitoring of others a. Damages under Coverage A;and by that insured, if the "occurrence" which b. Medical expenses under Coverage C caused the "bodily injury" or "property damage", or the offense which caused the because of all "bodily injury" and "property "personal and advertising injury", involved the damage"arising out of any one"occurrence". • rendering of or the failure to render any 6. Damage To Premises Rented To You Limit professional services by or for you. Subject to 5. above, the Damage To Premises The limits of insurance that apply to additional Rented To You Limit is the most we will pay insureds is described in Section III - Limits Of under Coverage A for damages because of Insurance. "property damage" to any one premises, while How this insurance applies when other insurance rented to you, or in the case of damage by fire, is available to the additional insured is described lightning or explosion, while rented to you or in the Other Insurance Condition in Section IV - temporarily occupied by you with permission of Commercial General Liability Conditions. the owner. J . Page 14 of 21 HG 00 01 09 16 • In the case of damage by fire, lightning or b. Notice Of Claim explosion, the Damage to Premises Rented To If a claim is made or"suit" is brought against You Limit applies to all damage proximately any insured, you or any additional insured caused by the same event, whether such must: damage results from fire, lightning or explosion (1) Immediately record the specifics of the or any combination of these. claim or"suit"and the date received; and 7. Medical Expense Limit • (2) Notify us as soon as practicable. Subject to 5. above,the Medical Expense Limit is the most we will pay under Coverage C for all You or any additional insured must see to it medical expenses because of "bodily injury" that we receive written notice of the claim or sustained by any one person. "suit"as soon as practicable. 8. How Limits Apply To Additional Insureds c. Assistance And Cooperation Of The Insured If you have agreed in a written contract or written agreement that another,person or organization You and any other involved insured must: be added as an additional insured on your policy, (1) Immediately send us copies of any the most we will pay on behalf of such additional demands, notices, summonses or legal insured is the lesser of: papers received in connection with the • a. The limits of insurance specified in the written claim or"suit"; contract or written agreement; or (2) Authorize us to obtain records and other b. The Limits of Insurance shown in the information; Declarations. (3) Cooperate with us in the investigation or Such amount shall be a part of and not in settlement of the claim or defense against addition to Limits of Insurance shown in the the"suit"; and Declarations and described in this Section. (4) Assist us, upon our request, in the The Limits of Insurance of this Coverage Part apply enforcement of any right against any person • separately to each consecutive annual period and to or organization which may be liable to the any remaining period of less than 12 months, insured because of injury or damage to starting with the beginning of the policy period which this insurance may also apply. shown in the Declarations, unless the policy period d. Obligations At The Insureds Own Cost is extended after issuance for an additional period of No insured will, except at that insured's own less than 12 months. In that case, the additional cost, voluntarily make a payment, assume period will be deemed part of the last preceding any obligation, or incur any expense, other period for purposes of determining the Limits of than for first aid,without our consent. Insurance. e. Additional Insureds Other Insurance SECTION IV - COMMERCIAL GENERAL • LIABILITY CONDITIONS If we cover a claim or "suit" under this Coverage Part that may also be covered by 1. Bankruptcy other insurance available to an additional Bankruptcy or insolvency of the insured or of the insured, such additional insured must submit insured's estate will not relieve us of our such claim or "suit" to the other insurer for obligations under this Coverage Part. defense and indemnity. 2. Duties In The Event Of Occurrence, Offense, However, this provision does not apply to the Claim Or Suit extent that you have agreed in a written a. Notice Of Occurrence Or Offense contract or written agreement that this You or any additional insured must see to it insurance is primary and non-contributory . that we are notified as soon as practicable of with the additional insured's own insurance. an "occurrence" or an offense which may f. Knowledge Of An Occurrence, Offense, result in a claim. •To the extent possible, Claim Or Suit notice should include: Paragraphs a. and b. apply to you or to any (1) How, when and where the "occurrence" or additional insured only when such offense took place; "occurrence", offense, claim or"suit"is known (2) The names and addresses of any injured to: persons and witnesses; and (1) You or any additional insured that is an (3) The nature and location of any injury or individual; damage arising out of the "occurrence" or (2) Any partner, if you or the additional 1 offense. insured is a partnership; HG 00 01 09 16 Page 15 of 21 (3) Any manager, ifyou or the additional (3) Tenant Liability �, ` insured.is a limited liability company; That is insurance purchased by you to (4) Any "executive officer" or insurance cover your liability as a tenant for manager, if you or the additional insured is "property damage" to premises rented to . a corporation; you or temporarily occupied by you with (5) Any trustee, if you or the additional permission of the owner; insured is a trust; or (4) Aircraft,Auto Or Watercraft (6) Any elected or appointed official, if you or If the loss arises out of the maintenance or the additional insured is a political use of aircraft, "autos" or watercraft to the subdivision or public entity. extent not subject to Exclusion g. of This duty applies separately, to you and any Section I - Coverage A- Bodily Injury And additional insured. Property Damage Liability; 3. Legal Action Against Us (5) Property 'Damage To Borrowed • No personor organization has a right under this Equipment Or Use Of Elevators Coverage Part: If the loss arises out of"property damage" a. To join us as a party or otherwise bring us to borrowed equipment or the use of for damages from an elevators to the extent not subject to into a "suit" asking g Exclusion j.. of Section I Coverage A - insured; or Bodily Injury And Property Damage b. To sue us on this Coverage Part unless all of Liability; its terms have been fully complied with. (6) When You Are Added As An Additional A person or organization may sue us to recover Insured To Other Insurance . on an agreed settlement or on a final judgment Any other insurance available to you against an insured; but we will not be liable for covering liability for damages arising out damages that are not payable under the terms of of the premises or operations, or products this Coverage Part or that are in excess of the and completed operations, for which you applicable limit of insurance. An agreed have been added as an additional insured settlement means a settlement- and release of by that insurance; or liability signed by us, the insured and the , - (7)W,he t_ Yoh Add Others: As claimant or the claimant's legal representative. 4. Other Insurance AddrtionaIli)sured-`T.o This_,Ins=nee If other valid and collectible insurance is Any other insurance available to an additional insured. available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our However, the following provisionsapply to obligations are limited as follows: other insurance available to any person or organization who is an additional insured a. Primary Insurance- under this coverage part. This insurance is primary except when b.. (a)Primary Insurance When Required below applies. If other insurance is also ' By Contract primary, we will share with all that other insurance by the .method described in c. This insurance is primary if you have below. agreed ina written contractor written . b. Excess Insurance agreement that this insurance be primary. If other insurance is also This insurance is excess over any of the other primary, we will share with all that insurance, . whether primary, excess, other insurance by the method contingent or on any other basis: described in c. below. (1) Your Work_ (b)Primary And Non-Contributory To That is Fire, Extended Coverage, Builder's Other Insurance_When Required By Risk, Installation Risk or similar coverage Contract for"your work"; If you have agreed in a written (2) Premises Rented To You contract, written agreement, or permit • That is fire, lightning or explosion that this insurance is primary and non- contributory with the additional insurance for premises rented to you'or insured's own insurance,this insurance temporarily occupied by you with is primary .and we will not seek , permission of the owner; contribution from that other insurance. Page 16 of 21 HG 00 01 0916 Paragraphs (a) and (b) donot apply to computation, and send us copies at such other .insurance to which the additional times as we may request. • insured has been added as an additional 6. Representations insured. a. When You Accept This Policy When this insurance is excess, we will have By accepting this policy, you agree: no duty under Coverages A or B to defend . the insured against any "suit" if any other (1) The statements in the Declarations are insurer has a duty to defend the insured accurate and complete; against that"suit". If no other insurer defends, (2) Those statements are based upon we will undertake to do so, but we will berepresentations you made to us; and entitled to the insured's rights against all (3) We have issued this policy in reliance . those other insurers. upon your representations. When this insurance is excess over other b. Unintentional Failure To Disclose Hazards insurance, we will pay only our share of the amount of the loss, if any, that exceeds the If unintentionally you should fail to disclose all sum of: hazards relating to the conduct of your (1) The total amount that all such other business that exist at the inception date of insurance would pay for the loss in the this Coverage Part, we shall not deny absence of this insurance; and coverage under this Coverage Part because (2) The total of all deductible and self-insured of such failure. amounts under all that other insurance. 7. Separation Of Insureds . We will share the remaining loss, if any, with Except with respect to the Limits of Insurance, any other insurance that is not described in and any rights or duties specifically assigned in this Excess Insurance provision and was not this Coverage Part to the first Named Insured, bought specifically to apply in excess of the this insurance applies: Limits of Insurance shown in the Declarations a. As if each Named Insured were the only of this Coverage Part. Named Insured; and c. Method Of Sharing b. Separately to each insured against whom r If all of the other insurance permits claim is made or"suit"is brought. contribution by equal shares, we will follow v 8. Transfer Of Rights Of Recovery Against . this method also. Under this approach each Others To Us insurer contributes equal amounts until it has a. Transfer Of Rights Of Recovery paid its applicable limit of insurance or none of the loss remains,•whichever comes first. If the insured has rights to recover allorpart If any of the other insurance does not permit of any payment, including Supplementary contribution by equal shares, we will Payments, we have made under this contribute by limits. Under this method, each Coverage Part, those rights are transferred to insurer's share is based on the ratio of its us. The insured must do nothing after loss to applicable limit of insurance to the total impair them. At our request, the insured will applicable limits of insurance of all insurers. bring "suit" or transfer those rights to us and 5. Premium Audit help us enforce them. a. We will compute all. premiums for this b.cWaiver Of,Rights_Of l ecove_ry (Waiv_er Of Coverage Part in accordance with our rules 9._Subrogatiori) and rates. If the insured has waived any rights of b. Premium shown in this Coverage -Part as recovery against any person or organization advance premium is a deposit premium only. for all or part of any payment, including At the close of each audit period we will Supplementary Payments, we have made compute the earned premium for that period under this Coverage Part, we also waive that and send notice to the first Named Insured. right, provided the insured waived their rights The due date for audit and retrospective of recovery against such person or • premiums is the date shown as the due date organization in a contract, agreement or on the bill. If the sum of the advance and permit that was executed prior to the injury or audit premiums paid for the policy period is damage. greater than the earned premium, we will 9. When We Do Not Renew return the excess to the first Named Insured. If we decide not to renew this.Coverage:Part, we c. The first Named Insured must keep records of will mail or deliver to the first Named Insured the information we need for premium shown in the Declarations written notice of the HG 00 01 09 16 Page 17 of 21 nonrenewal not less than 30 days before the c. All other parts of the world if the injury or expiration date. damage arises out of: If notice is mailed, proof of mailing will be (1) Goods or products made or sold by you in sufficient proof of notice. the territory described in a. above; SECTION V- DEFINITIONS (2) The activities of a person whose home is 1. "Advertisement" means the widespread public in the territory described in a. above, but is dissemination of information or images that has away for a short time on your business; or the purpose of inducing the sale of goods, (3) "Personal and advertising injury" offenses • products or services through: that take place through the Internet or a. (1) Radio; similar electronic means of communication (2) Television; provided the insured's responsibility to pay damages is determined in the United States of (3) Billboard; America (including its territories and possessions), (4) Magazine; Puerto Rico or Canada, in a "suit" on the merits (5) Newspaper; or according to the substantive law in such territory or b. Any other publication that is given widespread in a settlement we agree to. public distribution. 7. "Employee" includes a "leased worker". However, "advertisement"does not include: "Employee" does not include a "temporary worker . a. The design, printed material, information or 8. "Employment-Related Practices" means: images contained• in, on or upon the packaging or labeling of any goods or a. Refusal to employ that person; products; or b. Termination of that person's employment; or b. An interactive conversation between or c. Employment-related practices, policies, acts among persons through a computer network. or omissions, such as coercion, demotion, 2. "Advertising idea" means any idea for an evaluation, reassignment, discipline, "advertisement". defamation, harassment, humiliation, 3. "Asbestos hazard" means an exposure or discrimination or malicious prosecution directed at that person. threat of exposure to the actual or alleged properties of asbestos and includes the mere 9. "Executive officer" means a person holding any presence of asbestos in any form. of the officer positions created by your charter, 4. "Auto"means: constitution, by-laws or any other similar governing document. a. A land motor vehicle, trailer or semitrailer 10."Hostile fire" means one which becomes designed for travel on public roads, including uncontrollable or breaks out from where it was any attached machinery or equipment; or intended to be. • b. Any other land vehicle that is subject to a 11."Impaired property" means tangible property; compulsory or financial responsibility law or other than "your product" or "your work", that other motor vehicle insurance law where it is cannot be used or is less useful because: licensed or principally garaged. However, "auto" does not include "mobile a. It incorporates "your product" or "your work" equipment". that is known or thought to be defective, deficient, inadequate or dangerous; or 5. "Bodily injury"means physical: b. You have failed to fulfill the terms of a a. Injury; contract or agreement; b. Sickness; or if such property can be restored to use by the c. Disease repair, replacement, adjustment or removal of sustained by a person and, if arising out of the "your product" or "your work", or your fulfilling the above, mental anguish or death at any time. terms of the contract or agreement. 6. "Coverage territory" means: 12."Insured contract"means: a. The United States of America (including its a. A contract for a lease of premises. However, territories and possessions), Puerto Rico and that portion of the contract for a lease of Canada; premises that indemnifies any person or b. International waters or airspace, but only if organization for damage by fire, lightning or - the injury or damage occurs in the course of explosion to premises while rented to you or travel or transportation between any places temporarily occupied by you with permission • included in a. above; or of the owner is subject to the Damage to Page 18of21 HG00010916 Premises Rented To You Limit described in 14."Loading or unloading" means the handling of - Section III - Limits of Insurance; property: b. A sidetrack agreement; a. After it is moved from the place where it is c. Any easement or license agreement, accepted for movement into or onto an including an easement or license agreement aircraft, watercraft or"auto"; in connection with construction or demolition b. While it is in or on an aircraft, watercraft or . operations on or within 50 feet of a railroad; "auto"; or d. An obligation, as required by ordinance, to c. While it is being moved from an aircraft, indemnify a municipality, except in connection watercraft or "auto" to the place where it is with work for a municipality; finally delivered; e. An elevator maintenance agreement; but "loading or unloading" does not include the f. That part of any other contract or agreement movement of property by means of a mechanical pertaining to your business (including an device, other than a hand truck, that is not indemnification of a municipality in connection attached to the aircraft, watercraft or"auto". with work performed for a municipality) under 15."Mobile equipment" means any of the following . which you assume the tort liability of another types of land vehicles, including any attached party to pay for "bodily injury" or "property machinery or equipment: damage" to a third person or organization, provided the "bodily injury" or "property a. Bulldozers, farm machinery,forklifts and other damage" is caused, in whole or in part, by vehicles designed for use principally off public you or by those acting on your behalf. Tort roads; liability means a liability that would be b. Vehicles maintained for use solely on or next imposed by law in the absence of any to premises you own or rent; contract or agreement. c. Vehicles that travel on crawler treads; Paragraph f. includes that part of any contract d. Vehicles, whether self-propelled or not, . or agreement that indemnifies a railroad for maintained primarily to provide mobility to "bodily injury" or "property damage" arising permanently mounted: out of construction or demolition operations, within 50 feet of any railroad property and (1) Power cranes, shovels, loaders, diggers or affecting any railroad bridge or trestle, tracks, drills; or road-beds,tunnel, underpass or crossing. (2) Road construction or resurfacing However, Paragraph f. does not include that equipment such as graders, scrapers or part of any contract or agreement: rollers; (1) That indemnifies an architect, engineer or e. Vehicles not described in a., b.,c. or d. above surveyor for injury or damage arising out of: that are not self-propelled and are maintained . (a) Preparing, approving, or failing to primarily to provide mobility to permanently prepare or approve, maps, shop attached equipment of the following types: drawings, opinions, reports, surveys, (1) Air compressors, pumps and generators, field orders, change orders or drawings including spraying, welding, building and specifications; or cleaning, geophysical exploration, lighting (b) Giving directions or instructions, or and well servicing equipment; or failing to give them, if that is the (2) Cherry pickers and similar devices used to primary cause of the injury or damage; raise or lower workers; or f. Vehicles not described in a., b.,c. or d. above (2) Under which the insured, if an architect, maintained primarily for purposes other than engineer or surveyor, assumes liability for the transportation of persons or cargo. an injury or damage arising out of the However, self-propelled vehicles with the • insured's rendering or failure to render following types of permanently attached professional services, including those fisted equipment are not"mobile equipment" but will in (1) above and supervisory, inspection, be considered"autos": architectural or engineering activities. 13. Leased worker" means a person leased to you (1) Equipment designed primarily for: by a labor leasing firm under an agreement (a) Snow removal; between you and the labor leasing firm, to (b)Road maintenance, but not . perform duties related to the conduct of your construction or resurfacing; or business. "Leased worker" does not include a (c) Street cleaning; "temporary worker". HG 00 01 09 16 Page 19 of 21 (2) Cherry pickers and similar devices (2) Work that has not yet been completed or mounted on automobile or truck chassis abandoned. However, "your work" will be and used to raise or lower workers; and deemed completed at the earliest of the . (3) Air compressors, pumps and generators, following times: including spraying, welding, building (a)When all of the work called for in your cleaning, geophysical exploration, lighting contract has been completed. and well servicing equipment. (b)When all of the work to be done at the However, "mobile equipment" does not include job site has been completed if your any land vehicle that is subject to a compulsory contract calls for work at more than or financial responsibility law or other motor one job site. vehicle insurance law where it is licensed or (c)When that part of the work done at a principally garaged. Land vehicles subject to a job site has been put to its intended compulsory or financial responsibility law or other use by any person or organization motor vehicle insurance law are considered other than another contractor or "autos". subcontractor working on the same 16."Occurrence" means an accident, including project. continuous or repeated exposure to substantially Work that may need service, the same general harmful conditions. maintenance, correction, repair or 17."Personal and advertising injury" means replacement, but which is otherwise injury, including consequential "bodily injury", complete,will be treated as completed. arising out of one or more of the following b. Does not include "bodily injury" or "property offenses: damage"arising out of: • a. False arrest, detention or imprisonment; (1) The transportation of property, unless the b. Malicious prosecution; injury or damage arises out of a condition c. The wrongful eviction from, wrongful entry in or on a vehicle not owned or operated into, or invasion of the right of private by you, and that condition was created by occupancy of a room, dwelling or premises the "loading or unloading" of that vehicle that a person or organization occupies, by any insured; committed by or on behalf of its owner, (2) The existence of tools, uninstalled -` landlord or lessor; equipment or abandoned or unused d. Oral, written or electronic publication, in any materials;or . manner, of material that slanders or libels a (3) Products or operations for which the person or organization or disparages a classification, listed in the Declarations or person's or organization's goods, products or in a policy Schedule, states that products- services; completed operations are subject to the e. Oral, written or electronic publication, in any General Aggregate Limit. manner, of material that violates a person's 20."Property damage"means: right of privacy; a. Physical injury to tangible property, including f. Copying, in your "advertisement", a person's all resulting loss of use of that property. All or organization's "advertising idea" or style of such loss of use shall be deemed to occur at "advertisement"; or the time of the physical injury that caused it; g. Infringement of copyright, slogan, or title of or any literary or artistic work, in your b. Loss of use of tangible property that is not "advertisement". . physically injured. All such loss of use shall 18."Pollutants" mean any solid, liquid, gaseous or be deemed to occur at the time of the thermal irritant or contaminant, including smoke, "occurrence"that caused it. vapor, soot, fumes, acids, alkalis, chemicals and As used in this definition, computerized or waste. Waste includes materials to be recycled, electronically stored data, programs or software reconditioned or reclaimed. are not tangible property. Electronic data means 19."Products-completed operations hazard": information,facts or programs: • a. Includes all "bodily injury" and "property a. Stored as or on; damage" occurring away from premises you b. Created or used on; or own or rent and arising out of "your product" or"your work"except: c. Transmitted to or from; (1) Products that are still in your physical computer software, including systems and possession; or applications software, hard or floppy disks, CD- Page 20 of 21 HG 00 01 0916 • ROMS, tapes, drives, cells, data processing 25. "Your work": devices or any other media which are used with a. Means: electronically controlled equipment. (1) Work or operations performed by you or 21."Suit" means a civil proceeding in which on your behalf; and damages because of "bodily injury", "property damage" or "personal and advertising injury" to (2)'Materials, parts or equipment furnished in which this insurance applies are alleged. "Suit" connection with such work or operations. includes: b. Includes a. An arbitration proceeding in which such (1) Warranties or representations made at damages are claimed and to which the any time with respect to the fitness, . insured must submit or does submit with our quality, durability, performance or use of consent; or "your work", and b. Any other alternative dispute resolution (2) The providing of or failure to provide proceeding in which such damages are warnings or instructions. claimed and to which the insured submits with our consent. 22."Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23."Volunteer worker" means a person who a. Is not your"employee'; b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you;and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24."Your product": a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a)You; (b)Others trading under your name; or (c)A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product"; and (2) The providing of or failure to provide warnings or instructions. G. Does not include vending machines or other property rented to or located for the use of others but not sold. HG 00 01 09 16 Page 21 of 21 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CONTRACTORS BROAD FORM ENDORSEMENT - TEXAS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART INDEX 1. Alienated Premises Coverage 1 2. Damage To Your Work 1 3 Contractors Limited Professional Liability 1 4. Per Project and Per Location General Aggregate Limits Of Insurance 2 5. Medical Payments Coverage- Including Products-Completed Operations 3 6. Injury To Employee's Reputation With Respect To Incidental Medical Malpractice 3 7. Bodily Injury Employee Suits 3 8. Consolidated Insurance (Wrap-Up) Program 3 9. Access Or Disclosure Of Confidential Or Personal Information And Data-Related Liability 4 10. Supplementary Payments 5 11. Notice of Cancellation to Certificate Holders 5 12. Contractual Liability Coverage For Personal And Advertising Injury 5 13. Insured Contract Definition 6 , 1. ALIENATED PREMISES COVERAGE This provision does not apply if exclusion I. Exclusion j. Damage To Property of Section I - Damage To Your Work has been otherwise Coverage A is amended as follows: modified by endorsement. a. The following exception to the exclusion is 3. CONTRACTORS LIMITED PROFESSIONAL deleted: LIABILITY Paragraph(2) of this exclusion does not apply The following exclusion is added to Paragraph 2., if the premises are "your work" and were Exclusions of Section I - Coverage A - Bodily never occupied, rented or held for rental by Injury And Property Damage Liability, and to Paragraph 2., Exclusions of Section I - you. Coverage B - Personal And Advertising Injury b. This exception is replaced by the following: Liability: Paragraph(2) of this exclusion does not apply This insurance does not apply to "bodily injury", if the premises are"your work". "property damage" or "personal and advertising 2. DAMAGE TO YOUR WORK injury" arising out of the rendering of or failure to Exclusion I. Damage To Your Work of Section I - render any professional services by you with Coverage A is replaced by the following: respect to your providing engineering, architectural or surveying services in your I. Damage to Your Work capacity as an engineer, architect or surveyor. "Property damage" to that particular part of Professional services include: "your work"that must be restored, repaired or (1) The preparing, approving, or failing to prepare replaced because "your work"was incorrectly or approve, maps, shop drawings, opinions, performed and included in the "products- reports, surveys, field orders, change orders, completed operations hazard". or drawings and specifications; and This exclusion does not apply if the damaged (2) Supervisory or inspection activities performed work or the work performed incorrectly was as a part of any related architectural or performed on your behalf by a subcontractor. engineering activities. Form HS 24 24 03 17 Page 1 of 6 ©2017, The Hartford This exclusion applies even if the claims against operations hazard", and for medical any insured allege negligence or other expenses under Coverage C regardless wrongdoing in the supervision, hiring, of the number of; employment, training or monitoring of others by a. Insureds; that insured, if the "occurrence"which caused the "bodily injury" or "property damage", or the b. Claims made or"suits" brought; or offense which caused the "personal and c. Persons or organizations making advertising injury", involved the rendering of or claims or bringing "suits". failure to render any professional services by you 3. Any payments made under Coverage A with respect to your providing engineering, for damages or under Coverage C for architectural or surveying services in your medical expenses shall reduce the Per capacity as an engineer, architect or surveyor. Project General Aggregate Limit for that This exclusion does not apply to your operations "project" or the Per Location General in connection with construction work performed by Aggregate for that "location", whichever you or on your behalf. applies. Such payments shall not reduce However, this exception to the exclusion will not the General Aggregate Limit shown in the apply if you are in the business or profession of Declarations the Per Project General providing the professional services described Aggregate Limit for any other"project", or above independent from the construction work the Per Location General Aggregate Limit performed by you or on your behalf. for any other"location". In the event this insurance applies to any injury, 4. The limits shown in the Declarations for damage, loss, cost or expense covered by Each Occurrence, Damage To Premises Professional Liability insurance issued by a Rented To You and Medical Expense company unaffiliated with us, then the insurance continue to apply. However, instead of afforded under this Coverage Part is excess over being subject to the General Aggregate such other valid and . collectible Professional Limit shown in the Declarations such Liability insurance (including any deductible or limits will be subject to the applicable Per self-insured retention portion thereof), and any Project General Aggregate Limit if other valid and collectible insurance available to attributable only to ongoing operations at the insured whether primary, excess, contingent a single "project" or the Per Location ; or on any other basis. General Aggregate if attributable only to 4. PER PROJECT AND PER LOCATION ongoing operations at a single"location". GENERAL AGGREGATE LIMITS OF B. For all sums which the insured becomes INSURANCE legally obligated to pay as damages caused by "occurrences" under Section I -Coverage A. For all sums which the insured becomes A and for all medical expenses caused by legally obligated to pay as damages caused accidents under Section I - Coverage C , by "occurrences" under Section I - Coverage which cannot be attributed only to ongoing A, and for all medical expenses caused by operations at a single "project" or a single accidents under Section I - Coverage C, "location"; which can be attributed only to ongoing operations at a single "project" or a single 1. Any payments made under Coverage A "location"; for damages or under Coverage C for medical expenses shall reduce the 1. A separate, Per Project General amount available under the General Aggregate Limit or a separate Per Aggregate Limit or the Products- Location General Aggregate Limit applies Completed Operations Aggregate Limit, to each "project" or "location", whichever whichever is applicable; and is applicable. The Per Project General Aggregate Limit and Per Location 2. Such payments shall not reduce any Per Aggregate Limit is equal to the amount of Project General Aggregate Limit or any the General Aggregate Limit shown in the Per Location General Aggregate Limit. Declarations. C. When coverage for liability arising out of the 2. The Per Project General Aggregate Limit "products-completed operations hazard" is or the Per Location General Aggregate provided, any payments for damages because Limit, whichever applies, is the most we of "bodily injury" or ;"property damage" will pay for the sum of all damages under included in the products-completed Coverage A. except damages because of operations hazard" will reduce the Products- "bodily injury" or "property damage" Completed Operations Aggregate Limit, and included in the "products-completed not reduce the General Aggregate Limit,or Page 2 of 6 Form HS 24 24 03 17 any Per Project General Aggregate Limit or (3) The injured person submits to any Per Location General Aggregate Limit. examination, at our expense, by D. The provisions of Section III - Limits Of physicians of our choice as often as Insurance not otherwise modified by this we reasonably require. ,' endorsement shall continue to apply as 6. INJURY TO EMPLOYEES REPUTATION WITH stipulated. RESPECT TO INCIDENTAL MEDICAL E. For the purposes of Paragraph 4, the MALPRACTICE following definitions apply: A. The following is added to paragraph 1.e. of "Project" means a premises an insured does the Insuring Agreement-Coverage A: not own or rent and where such insured (3) With respect to incidental medical performs construction-related operations. malpractice, "bodily injury' includes Each "project" involving the same or damages claimed for injury to emotions or connecting lots, or premises whose reputation of an "employee" arising out of connection is separated by a street, roadway, the rendering or failure to render waterway or right-of-wayrailroad shall be professional health care services as a considered a single "project". If a "project"has physician, dentist, nurse, emergency been abandoned and then restarted, or if the medical technician or paramedic services. authorized contracting parties deviate from B. The following exclusion is added to Coverage plans, blueprints, designs, specifications or B - Personal and Advertising Injury: timetables, the "project"shall be considered a "Personal and advertising injury arising out of single "project". "Project" does not include a the renderingor failure to render professional premises that is a"location". health care services as a physician, dentist, "Location" means a premises an insured owns nurse, emergency medical technician or or rents and where such insured performs paramedic. business operations other than construction- 7. BODILY INJURY EMPLOYEE SUITS related operations. Each "location" involving the same or connecting lots, or .premises A. "Bodily injury" as listed in paragraph 2.a.(1) of whose connection is separated by a street, Section II - Who Is An Insured, does not roadway, waterway or right-of-way railroad apply to 2.a.(1)(a)through 2.a.(1)(c). shall be considered a single "location." B. Part a. of Paragraph 4. Nonowned "Location" does not include a premises that is Watercraft in Section II -Who Is An Insured a"project'. does not apply. This provision does not apply if the Per Project and 8. CONSOLIDATED INSURANCE (WRAP-UP) the Per Location General Aggregate Limit has been PROGRAMS otherwise modified by endorsement. The following exclusion is added to Section 5. MEDICAL PAYMENTS COVERAGE- INCLUDING Coverage A: PRODUCTS-COMPLETED OPERATIONS This insurance does not apply to any "bodily injury" Paragraph 1.a. of the Insuring Agreement - or "property damage" arising out of any 'Wrap Coverage C is replaced by the following: project or premises" where an insured under this 1. Insuring Agreement policy is also an insured under a commercial general liability (CGL) policy included within a "consolidated a. We will pay medical expenses as insurance (wrap-up) program." This exclusion described below for "bodily injury" caused applies even if the limits of insurance for such by an accident: "consolidated insurance (wrap-up) program" are (1) On premises you own or rent; exhausted or not collected for any reason, including (2) On ways next to premises you own or bankruptcy or insolvency of the insurer providing rent; coverage for the "consolidated insurance (wrap-up) (3) Because of your operations; or program". This exclusion also applies if the CGL coverage afforded under the "consolidated (4) Included within the definition of the "products-completed operations insurance (wrap-up) program" is narrower in scope hazard;" than the coverage provided by this policy. provided that: This exclusion does not apply to: (1) The accident takes place in the A. Products-Completed Operations Hazard "coverage territory" and during the Exception policy period; "Bodily injury" or "property damage" arising 1out of an insured's operations at or in (2) The expenses are incurred and reported to us within three years of connection with a 'Wrap project or premises" the date of the accident; and when such "bodily injury" or "property Form HS 24 24 03 17 Page 3 of 6 damage" commences after the "products- connection with a "wrap project or premises", in completed operations hazard" coverage or order to replace or repair an insured's completed any completed operations extension coverage work. provided by the applicable "consolidated "Punch list work" means work performed by an insurance (wrap-up) program" has ended or is insured at or in connection with a "wrap project or no longer in effect. premises" in order to complete the work called for B. Excluded Operations Exception in an insured's contract for the "wrap project or "Bodily injury" or "property damage" arising premises". out of an insured's operations at or in 9. ACCESS OR DISCLOSURE OF CONFIDENTIAL connection with a 'Wrap project or premises" OR PERSONAL INFORMATION AND DATA- to the extent the applicable "consolidated RELATED LIABILITY insurance (wrap-up) program" does not apply A. Exclusion p. of Section I - Coverage A - to those operations. Bodily Injury And Property Damage Liability C. Off-Site Location Exception is replaced by the following: "Bodily injury" or "property damage" resulting p. Access Or Disclosure Of Confidential from an insured's operations at or in Or Personal Information And Data- connection with a 'Wrap project or premises" • Related Liability at a location to which the applicable Damages arising out of: "consolidated insurance (wrap-up) program" (1) Any access to or disclosure of any does not apply. person's or organization's confidential D. Repair Work And Punch List Work or personal information, including Exception patents, trade secrets, processing "Bodily injury" or "property damage" resulting methods, customer lists, financial from "repair work" or "punch list work" at a information, credit card information, 'Wrap project or premises" but only when the health information or any other type of applicable "consolidated insurance (wrap-up) nonpublic information; or program" does not apply or no longer applies (2) the loss of, loss of use of, damage to, to such "repair work"or"punch list work". corruption of, inability to access, or This exception does not apply to the cost of inability to manipulate "electronic performing such "repair work" or "punch list data" that does not result from \__" work", or to the "repair work" or "punch list physical injury to tangible property. work"itself. This exclusion applies even if damages E. Additional Insured Extension are claimed for notification costs, credit "Bodily injury" or "property damage" for which monitoring expenses, forensic expenses, you are solely an additional insured under the public relations expenses or any other "consolidated insurance (wrap-up) program". loss, cost or expense incurred by you or others arising out of that which is The coverage provided under Paragraphs 8.A described in Paragraph(1) or(2)above. through 8.E. above is subject to all terms conditions and exclusions of this policy. However unless Paragraph (1) above For purposes of Paragraph 8., the following applies, this exclusion does not apply to definitionsapply: liability for damages because of "bodily pp y: injury". "Consolidated insurance (wrap-up) program" B. The following is added to Paragraph 2. means any agreement or arrangement, including Exclusions of Section I - Coverage B - any contractor-controlled, owner-controlled or Personal and Advertising Injury: similar insurance program under which one or more contractor(s) working on a specified project 2. Exclusion are insured under one or more commercial general This insurance does not apply to: liability (CGL) policies issued by a specified carrier Access Or Disclosure Of Confidential for injury or damage arising out of operations Or Personal Information conducted in connection with or necessary or "Personal and advertising injury" arising incidental to the project. out of any access to or disclosure of any "Wrap project or premises" means any premises person's or organization's confidential or or construction project subject to a "consolidated personal information, including patents, -- insurance (wrap-up) program". trade secrets, processing methods, "Repair work" means service, maintenance, customer lists, financial information, credit correction, repair, replacement work, or periodic card information, health information or inspection performed by an insured at or in any other type of nonpublic information. Page 4 of 6 Form HS 24 24 03 17 This exclusion applies even if damages 10. SUPPLEMENTARY PAYMENTS are claimed for notification costs, credit In the Supplementary Payments -Coverages A monitoring expenses, forensic expenses, and B provision: public relations expenses or any other loss cost or expense incurred by you or The limit for the cost of bail bonds in increased to others arising out of any access to or $2,500. disclosure of any person's or 11. NOTICE OF CANCELLATION TO CERTIFICATE organization's confidential or personal HOLDER(S) information. This policy is subject to the following additional C. The following paragraph is added to Section Conditions: III -Limits Of Insurance: A. If this policy is cancelled by the Company, Subject to Paragraph 5. Each Occurrence other than for nonpayment of premium, notice Limit, the most we will pay under Coverage of such cancellation will be provided at least A for "property damage" because of all loss of thirty (30) days in advance of the cancellation "electronic data" arising out of any one effective date to the certificate holder(s) with "occurrence" is $100,000, unless modified by mailing addresses on file with the agent of endorsement. record or the Company. D. The following definition is added to Section V B. If this policy is cancelled by the Company for -Definitions: nonpayment of premium, or by the insured, "Electronic data" means information, facts or notice of such cancellation will be provided programs: within (10) days of the cancellation effective date to the certificate holder(s) with mailing a. Stored as or on; addresses on file with the agent of record or b. Created or used on;or the Company. c. Transmitted to or from; If notice is mailed, proof of mailing to the last computer software, (including systems and known mailing address of the certificate holder(s) applications software) hard or floppy disks, on file with the agent of record or the Company CD-ROMS, tapes, drives, cells, data will be sufficient proof of notice. processing devices or any other media which Any notification rights provided by this are used with electronically controlled endorsement apply only to active certificate equipment. holder(s) who were issued a certificate of E. For the purposes of the coverage provided by insurance applicable to this policy's term. this provision, the definition of "property Failure to provide such notice to the certificate damage" in Section V - Definitions is holder(s) will not amend or extend the date the replaced by the following: cancellation becomes effective, nor will it negate "Property damage"means: cancellation of the policy. Failure to send notice a. Physical injury to tangible property, shall impose no liability of any kind upon the Company or its agents or representatives. including all resulting loss of use of that 12. CONTRACTUAL LIABILITY COVERAGE FOR property. All such loss of use shall be PERSONAL AND ADVERTISING INJURY deemed to occur at the time of the physical injury that caused it; Exclusion e. of SECTION I - COVERAGE B b. Loss of use of tangible property that is not PERSONAL AND ADVERTISING INJURY physically injured. All such loss of use LIABILITY is replaced by the following: shall be deemed to occur at the time of This insurance does not apply to: the "occurrence"that caused it; or e. Contractual Liability c. Loss of, loss of use of, damage to, "Personal and advertising injury"for which the corruption of, inability to access, or insured has assumed liability in a contract or inability to properly manipulate "electronic agreement. This exclusion does not apply to data", resulting from physical injury to liability for damages: tangible property. All such loss of "electronic data"shall be deemed to occur (1) That the insured would have in the at the time of the "occurrence" that absence of the contract or agreement; or caused it. (2) Assumed in a contract or agreement that is an "insured contract", provided the For the purposes of this insurance, "electronic data"is not tangible property. "personal and advertising injury" occurs subsequent to the execution of the Form HS 24 24 03 17 Page 5 of 6 contract or agreement. Solely for the Paragraph f. includes that part of any purposes of liability assumed in an contract or agreement that indemnifies a "insured contract", reasonable attorney railroad for "bodily injury", "property fees and necessary litigation expenses damage", or "personal and advertising incurred by or for a party other than an injury" arising out of construction or insured are deemed to be damages demolition operations, within 50 feet of because of "personal and advertising any railroad property and affecting any injury", provided: railroad bridge or trestle, tracks, road- (a) Liability to such party for, or for the beds, tunnel, underpass or crossing. cost of, that party's defense has also However, Paragraph f. does not include been assumed in the same "insured that part of any contract or agreement: contract"; and (1) That indemnifies an architect, (b) Such attorney fees and litigation engineer or surveyor for injury or expenses are for defense of that party damage arising out of: against a civil or alternative dispute (a) Preparing, approving, or failing to resolution proceeding in which prepare or approve, maps, shop damages to which this insurance drawings, opinions, reports, applies are alleged. surveys, field orders, change 13. INSURED CONTRACT DEFINITION orders or drawings and a. INSURED CONTRACT- CONSTRUCTION specifications; or OPERATIONS AND MUNICIPAL WORK (b) Giving directions or instructions, Paragraph d. of the definition of "insured or failing to give them, if that is contract" in Section V - Definitions is the primary cause of the injury or deleted and replaced by the following: damage; or An obligation, as required by ordinance, (2) Under which the insured, if an to indemnify a municipality. architect, engineer or surveyor, b. CONTRACTUAL LIABILITY assumes liability for an injury or damage arising out of the insured's Paragraph f. of the definition of "insured rendering or failure to render contract" is deleted and replaced by the professional services, including those following: listed in (1) above and supervisory, That part of any other contract or inspection, architectural or agreement pertaining to your business engineering activities. (including an indemnification of a All other terms and conditions in the policy remain municipality in connection with work unchanged. performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury", "property damage", or "personal and advertising injury" to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. { Page 6 of 6 Form HS 24 24 03 17 This SPECIAL MULTI-FLEX POLICY is provided by the stock insurance company(s) of The Hartford Insurance Group, shown below. COMMON POLICY DECLARATIONS `=g POLICY NUMBER: 61 UEA Q 1025 S5 THE H RENEWAL OF: 61 UEA QI0258 ARTFORD Named Insured and Mailing Address: DUROTECH, INC. (No.,Street,Town,State,Zip Code) 11931 WICKCHESTER LN STE 205 HOUSTON , TX 77043 (HARRIS COUNTY) Policy Period: From 05/31/18 To 05/31/19 12:01 A.M. , Standard time at your mailing address shown above. In return for the payment of the premium, and subject to all of the terms of this policy, we agree with you to provide insurance as stated in this policy. The Coverage Parts that are a part of this policy are listed below. The Advance Premium shown may be subject to adjustment. Total Advance Premium: Coverage Part and Insurance Company Summary Advance Premium COMMERCIAL AUTO TRUMBULL INSURANCE COMPANY ONE HARTFORD PLAZA __ ) HARTFORD, CT 06155 TEXAS ABTPA FEE Form Numbers of Coverage Parts, Forms and Endorsements that are a part of this policy and that are not listed in the Coverage Parts. HM0001 IL00171198 HM99011185 IH12040312 IH99400409 IH99410409 IL00210908 HA00250615 Agent/Broker Name: MCGRIFF SEIBELS & WILLIAMS INC Countersigned by (iteerd.." C 05/30/18 (Where required by law) Authorized Representative Date Form HM 00 10 01 07 t , COMMERCIAL AUTOMOBILE ' COVERAGE PART - DECLARATIONS BUSINESS AUTO COVERAGE FORM HARTFORD POLICY NUMBER: 61 UEA QI0258 This COMMERCIAL AUTOMOBILE COVERAGE PART consists of: A. This Declarations Form; B. Business Auto Coverage Form; and C. Any Endorsements issued to be a part of this Coverage Form and listed below. ITEM ONE-NAMED INSURED AND ADDRESS The Named Insured is stated on the Common Policy Declarations. AUDIT PERIOD: • Except in this Declarations, when we use the word "Declarations" in this Coverage Part, we mean this "Declarations"or the"Common Policy Declarations". Form Numbers of Coverage Forms, Endorsements and Schedules that are part of this Coverage Part: HA00040302 HA00340614 HA00120615T CA00011013 HA21020614 CA22641013 CA21091013 CA01211013 CA01961013 CA01981013 • CA99231013 CA99951013 HA00240614 HA20070614 HA99080614 M91.60312 IH12011185 I1112011185 IH12011185 Form HA 00 25 06 15 Page 1 of 4 ©2015,The Hartford (Includes copyrighted material of Insurance Services Office, Inc.,with its permission.) COMMERCIAL AUTOMOBILE HA 99 16 03 12 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: • BUSINESS AUTO COVERAGE FORM To the extent that the provisions of this endorsement provide broader benefits to.the "insured" than other provisions of the Coverage Form,the provisions of this endorsement apply. 1. BROAD FORM INSURED d. Any "employee" of yours while using a A. Subsidiaries and Newly Acquired or covered "auto" you don't own, hire or Formed Organizations borrow in your business or your • The Named Insured shown in the personal affairs. Declarations is amended to include: C. Lessors as Insureds (1) Any legal business entity other than a Paragraph A.1. -WHO IS AN INSURED -of partnership or joint venture, formed as a Section II - Liability Coverage is amended to subsidiary in which you have an add: ownership interest of more than 50% on e. .The lessor of a covered "auto" while the the effective date of the Coverage Form. "auto" is leased to you under a written However, the Named Insured does not agreement if: include any subsidiary that is an "insured" under any other automobile (1) The agreement requires you to I provide direct primary insurance for policy or would be an "insured" under such a policy but for its termination or the lessor and the exhaustion of its Limit of Insurance. (2) The"auto"is leased without a driver. (2) Any organization that is acquired or Such a leased "auto" will be considered a formed by you and over which you covered "auto" you own and not a covered maintain majority ownership. However, "auto"you hire. the Named Insured does not include any D [Additionalansure_dafRequired-by Cont? newly formed or acquired organization: That is a partnershiporjoint (1) Paragraph A.1. -WHO IS AN INSURED (a) - of Section II - Liability Coverage is venture, amended to add: (b) That is an "insured" under any other f. When you have agreed, in a written policy, • contract or written agreement,that a (c) That has exhausted its Limit of person or organization be added as Insurance under any other policy, or an additional .insured on your (d) 180 days or more after its business auto policy, such person or acquisition or formation by you, organization is an"insured", but only unless you have given us notice of to the extent such person or the acquisition or formation. organization is liablefor "bodily • Coverage does not apply to "bodily injury" or "property damage" caused injury" or"property damage" that results by the conduct of an"insured" under from an "accident" that occurred before paragraphs a. or b. of Who Is An you formed or acquired the organization. Insured with regard to the ownership, maintenance or use of a B. Employees as Insureds covered"auto." Paragraph A.1. -WHO IS AN INSURED -.of SECTION II - LIABILITY COVERAGE is amended to add: ©2011,The Hartford(Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc.,with its permission.) Page 1 of 5 The insurance afforded to any such E. Primary and Non-Contributory if additional insured applies only if the Required by Contract "bodily injury" or "property damage" Only with respect to insurance provided to occurs: an additional insured in 1.D. - Additional (1) During the policy period, and Insured If Required by Contract, the • (2) Subsequent to the execution of such following provisions apply: written contract, and (3) Primary Insurance When Required By (3) Prior to the expiration of the period Contract of time that the written contract This insurance is primary if you have requires such insurance be provided agreed in a written contract or written to the additional insured. agreement that this insurance be (2) How Limits Apply primary. If other insurance is also If you have agreed in a written contract primary, we will share with all that other insurance by the method described in • or written agreement that another Other Insurance 5.d. person or organization be added as an additional insured on your policy, the (4) Primary And Non-Contributory To Other most we will pay on behalf of such Insurance When Required By Contract additional insured is the lesser of: If you have agreed in a written contract (a) The limits of insurance specified in or written agreement that this insurance the written contract or written is primary and non-contributory with the agreement; or additional insured's own insurance, this (b) The Limits of Insurance shown in insurance is primary and we will not seek contribution from that other • the Declarations. insurance. Such amount shall be a part of and not Paragraphs (3) and (4) do not apply to other in addition to Limits of Insurance shown insurance to which the additional insured in the Declarations and described in this has been added as an additional insured. Section. (3) Additional Insureds Other Insurance When this insurance is excess, we will have no duty to defend the insured against any "suit" if If we cover a claim or "suit" under this any other insurer has a duty to defend the Coverage Part that may also be covered insured against that "suit". If no other insurer by other insurance available to an defends, we will undertake to do so, but we will • additional insured, such additional be entitled to the insured's rights against all insured must submit such claim or "suit" those other insurers. to the other insurer for defense and When this insurance is excess over other indemnity. insurance, we will pay only our share of the However, this provision does not apply amount of the loss, if any, that exceeds the sum to the extent that you have agreed in a of. written contract or written agreement (1) The total amount that all such other that this insurance is primary and non- insurance would pay for the loss in the contributory with the additional insured's absence of this insurance; and • own insurance. (4) Duties in The Event Of Accident, Claim, (2) The total of all deductible and self-insured Suit or Loss amounts under all that other insurance. We will share the remaining loss, if any, by the If you have agreed in a written contract method described in Other Insurance 5.d. or written agreement that another person or organization be added as an 2. AUTOS RENTED BY EMPLOYEES additional insured on your policy, the Any "auto" hired or rented by your "employee" additional insured shall be required to on your behalf and at your direction will be comply with the provisions in LOSS considered an"auto"you hire. • CONDITIONS 2. - DUTIES IN THE The OTHER INSURANCE Condition is amended EVENT OF ACCIDENT, CLAIM , SUIT by adding the following: OR LOSS — OF SECTION IV — BUSINESS AUTO CONDITIONS, in the same manner as the Named Insured. ©2011,The Hartford(Includes copyrighted material Form HA 9916 0312 of ISO Properties, Inc.,with its permission.) Page 2 of 5 If an "employee's" personal insurance also 5. PHYSICAL DAMAGE - ADDITIONAL applies on an excess basis to a covered "auto" TEMPORARY TRANSPORTATION EXPENSE hired or rented by your "employee" on your COVERAGE • behalf and at your direction, this insurance will Paragraph A.4.a. of SECTION III - PHYSICAL be primary to the "employee's" personal DAMAGE COVERAGE is amended to provide a insurance, limit of $50 per day and a maximum limit of 3. AMENDED FELLOW EMPLOYEE EXCLUSION $1,000. EXCLUSION 5. - FELLOW EMPLOYEE - of 6. LOAN/LEASE GAP COVERAGE SECTION II - LIABILITY COVERAGE does not Under SECTION III - PHYSICAL DAMAGE apply if you have workers' compensation COVERAGE, in the event of a total "loss" to a insurance in-force covering all of your covered "auto", we will pay your additional legal "employees". obligation for any difference between the actual Coverage is excess over any other collectible cash value of the "auto" at the time of the "loss" insurance. and the"outstanding balance"of the loan/lease. 4. HIRED AUTO PHYSICAL DAMAGE COVERAGE "Outstanding balance" means the amount you If hired "autos" are covered "autos" for Liability owe on the loan/lease at the time of"loss" less Coverage and if Comprehensive, Specified any amounts representing taxes; overdue Causes of Loss, or Collision coverages are payments; penalties, interest or charges provided under this Coverage Form for any resulting from overdue payments; additional "auto" you own, then the Physical Damage mileage charges; excess wear and tear charges; Coverages provided are extended to"autos"you lease termination fees; security deposits not • hire or borrow, subject to the following limit. returned by the lessor; costs for extended The most we will pay for "loss" to any hired warranties, credit life Insurance, health, accident or disability insurance purchased with the loan or "auto"is: lease; and carry-over balances from previous (1) $100,000; loans or leases. (2) The actual cash value of the damaged or 7. AIRBAG COVERAGE stolen property at the time of the"loss"; or Under Paragraph B. EXCLUSIONS - of (3) The cost of repairing or replacing the SECTION III - PHYSICAL DAMAGE damaged or stolen property, COVERAGE, the following is added: • whichever is smallest, minus a deductible. The The exclusion relating to mechanical breakdown deductible will be equal to the largest deductible does not apply to the accidental discharge of an applicable to any 'owned "auto" for that airbag. coverage. No deductible applies to"loss"caused 8. ELECTRONIC EQUIPMENT - BROADENED by fire or lightning. Hired Auto Physical Damage COVERAGE coverage is excess over any other collectible insurance. Subject to the above limit, deductible a. The exceptions to Paragraphs B.4 - and excess provisions, we will provide coverage EXCLUSIONS - of SECTION III - PHYSICAL equal to the broadest coverage applicable to any DAMAGE COVERAGE are replaced by the covered"auto"you own. following: We will also cover loss of use of the hired"auto" Exclusions 4.c. and 4.d. do not apply to if it results from an "accident", you are legally equipment designed to be operated solely liable and the lessor incurs an actual financial by use of the power from the "auto's" loss, subject to a maximum of $1000 per electrical system that, at the time of"loss", "accident". is: This extension of coverage does not apply to (1) Permanently installed in or upon any "auto" you hire or borrow from any of your the covered"auto"; "employees", partners (if you are a partnership), (2) Removable from a housing unit members (if you are a limited liability company), which is permanently installed in or members of their households. or upon the covered"auto"; (3) An integral part of the same unit housing any electronic equipment described in Paragraphs (1)and(2)above;or i ©2011, The Hartford(Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc., with its permission.) Page 3 of 5 (4) Necessary for . the normal If another Hartford Financial Services Group, operation of the covered"auto"or Inc. company policy or coverage form that is not the monitoring ofthe covered an automobile policy or coverage form applies to "auto's"operating system. the same"accident", the following applies: b.Section III — Version CA 00 01 03 10 of the (1) If the deductible under this Business Auto Business Auto Coverage Form, Physical Coverage Form is the smaller (or smallest) Damage Coverage, Limit of Insurance, deductible, it will be waived; Paragraph C.2 and Version CA 00 01 10 01 of (2) If the deductible under this Business Auto the Business Auto Coverage Form, Physical Coverage Form is not the smaller (or • Damage Coverage, Limit of Insurance, smallest) deductible, it will be reduced by Paragraph C are each amended to add the the amount of the smaller (or smallest) following: • deductible. $1,500 is the most we will pay for"loss" in 12. AMENDED DUTIES IN THE EVENT OF any one "accident" to all electronic ACCIDENT, CLAIM, SUIT OR LOSS equipment (other than equipment designed solely for the reproduction of sound, and The requirement in LOSS CONDITIONS 2.a. - accessories used with such equipment) DUTIES IN THE EVENT OF ACCIDENT,CLAIM, that reproduces, receives or transmits SUIT OR LOSS - of SECTION IV - BUSINESS audio, visual or data signals which, at the AUTO CONDITIONS that you must notify us of • time of"loss", is: an"accident" applies only when the"accident" is known to: (1) Permanently installed in or upon the covered "auto" in a housing, (1) You, if you are an individual; opening or other location that is not (2) A partner, if you are a partnership; normally used . by the "auto" (3) A member, if you are a limited liability manufacturer for the installation of company; or such equipment; (4) An executive officer or insurance manager, if (2) Removable from a permanently you are a corporation. installed housing unit as described 13. UNINTENTIONAL FAILURE TO DISCLOSE in Paragraph 2.a. above or is an HAZARDS integral part of that equipment; or (3)An integral part of such equipment. If you unintentionally fail to disclose any hazards existing at the inception date of your policy, we c.For each covered"auto", should loss be limited will not deny coverage under this Coverage to electronic equipment only, our obligation to Form because of such failure. pay for, repair, return or replace damaged or 14. HIRED AUTO-COVERAGE TERRITORY stolen electronic equipment will be reduced by the applicable deductible shown in the Paragraph e. of GENERAL CONDITIONS 7. - Declarations, or $250, whichever deductible is POLICY PERIOD, COVERAGE TERRITORY - • less. of SECTION IV - BUSINESS AUTO 9. EXTRA EXPENSE - BROADENED CONDITIONS is replaced by the following: COVERAGE e. For short-term hired "autos", the coverage Under Paragraph A. -COVERAGE-of SECTION territory with respect to Liability Coverage is III - PHYSICAL DAMAGE COVERAGE we will anywhere in the world provided that if the pay for the expense of returning a stolen covered "insured's" responsibility to pay damages for "auto"to you. "bodily injury" or "property damage" is determined in a suit, the"suit" is brought in 10. GLASS REPAIR-WAIVER OF DEDUCTIBLE the United States of America, the territories Under Paragraph D.-DEDUCTIBLE-of SECTION and possessions of the United States -of III - PHYSICAL DAMAGE COVERAGE, the America, Puerto Rico or Canada or in a following is added: settlement we agree to. No deductible applies to glass damage if the [.5.WAIVER OF SUBROGATION] glass is repaired rather than replaced. TRANSFER OF RIGHTS OF RECOVERY 11. TWO OR MORE DEDUCTIBLES AGAINST OTHERS TO US - of SECTION IV - Under Paragraph D.-DEDUCTIBLE-of SECTION BUSINESS AUTO CONDITIONS is amended by III - PHYSICAL DAMAGE COVERAGE, the adding the following: following is added: • ©2011, The Hartford(Includes copyrighted material Form HA 99 16 0312 of ISO Properties, Inc.,with its permission.) Page 4 of 5 We waive any right of recovery we may have c.Regardless of the number of autos deemed a against any person or organization with whom total loss, the most we will pay under this you have a written contract that requires such Hybrid, Electric, or Natural Gas Vehicle waiver because of payments we make for Payment Coverage provision for any one damages under this Coverage Form. "loss"is $10,000. 16. RESULTANT MENTAL ANGUISH COVERAGE For the purposes of the coverage provision, The definition of "bodily injury" in SECTION V- a.A "non-hybrid" auto is defined as an auto that DEFINITIONS is replaced by the following: uses only an internal combustion engine to "Bodily injury" means bodily injury, sickness or move the auto but does not include autos disease sustained by any person, including powered solely by electricity or natural gas. mental anguish or death resulting from any of b.A "hybrid" auto is defined as an auto with an these. internal combustion engine and one or more 17. EXTENDED CANCELLATION CONDITION electric motors; and that uses the internal Paragraph 2. of the COMMON POLICY combustion engine and one or more electric CONDITIONS - CANCELLATION - applies motors to move the auto, or the internal combustion engine to charge one or more except as follows: electric motors,which move the auto. If we cancel for any reason other than 19. VEHICLE WRAP COVERAGE nonpayment of premium, we will mail or deliver to the first Named Insured written notice of In the event of a total loss to an"auto"for which cancellation at least 60 days before the effective Comprehensive, Specified Causes of Loss, or date of cancellation. Collision coverages are provided under this 18. HYBRID, ELECTRIC, OR NATURAL GAS Coverage Form, then such Physical Damage VEHICLE PAYMENT COVERAGE Coverages are amended to add the following: In addition to the actual cash value of the"auto", In the event of a total loss to a"non-hybrid" auto we will pay up to $1,000 for vinyl vehicle wraps . for which Comprehensive, Specified Causes of which are displayed on the covered "auto" at the Loss, or Collision coverages are provided under time of total loss. Regardless of the number of this Coverage Form, then such Physical autos deemed a total loss, the most we will pay Damage Coverages are amended as follows: under this Vehicle Wrap Coverage provision for a.If the auto is replaced with a "hybrid" auto or any one "loss" is $5,000. For purposes of this an auto powered solely by electricity or natural coverage provision, signs or other graphics gas, we will pay an additional 10%, to a painted or magnetically affixed to the vehicle are maximum of$2,500, of the "non-hybrid" auto's not considered vehicle wraps. actual cash value or replacement cost, whichever is less, • b.The auto must be replaced and a copy of a bill of sale or new lease agreement received by us within 60 calendar days of the date of"loss," ©2011,The Hartford (Includes copyrighted material Form HA 9916 0312 of ISO Properties, Inc., with its permission.) Page 5 of 5 tT THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NOTICE OF CANCELLATION TO CERTIFICATE HOLDER(S) This policy is subject to the following additional If notice is mailed, proof of mailing to the last known Conditions: mailing address of the certificate holder(s) on file with A. If this policy is cancelled by the Company, other the agent of record or the Company will be sufficient than for nonpayment of premium, notice of such proof of notice. cancellation will be provided at least thirty (30) Any notification rights provided by this endorsement days in advance of the cancellation effective date apply only to active certificate holder(s) who were to the certificate holder(s) with mailing addresses issued a certificate of insurance applicable to this on file with the agent of record or the Company. policy's term. B. If this policy is cancelled by the Company for Failure to provide such notice to the certificate nonpayment of premium, or by the insured, notice holder(s) will not amend or extend the date the of such cancellation will be provided within (10) cancellation becomes effective, nor will it negate days of the cancellation effective date to the cancellation of the policy. Failure to send notice shall certificate holder(s) with mailing addresses on file impose no liability of any kind upon the Company or its with the agent of record or the Company. agents or representatives. l' Form IH 0313 06 11 Page 1 of 1 © 2011, The Hartford • THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT Policy Number: 61 WEA Q10215 Endorsement Number: Effective Date: 05/31/18 Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address: DUROTECH, INC • 11931 WICKCHESTER LN STE 205 HOUSTON TX 77043 This endorsement applies only to the insurance provided respect to bodily injury arising out of the operations by the policy because Texas is shown in Item 3.A. of the described in the Schedule where you are required by a Information Page. written contract to obtain this waiver from us. We have the right to recover our payments from anyone This endorsement shall not operate directly or indirectly liable for an injury covered by this policy. We will not to benefit anyone not named in the Schedule. enforce our right against the person or organization The premium for this endorsement is shown in the named in the Schedule, but this waiver applies only with Schedule. Schedule 1. ( ) Special Waiver Name of person or organization (X) Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: • All Texas Operations 3. Premium: The premium charge for this endorsement shall be 2 percent of the premium developed on payroll in connection with work performed for the above person(s)or organization(s) arising out of the operations described. 4. Advance Premium: • Form WC 42 03 04 B Printed in U.S.A. Process Date: 05/30/18 Policy Expiration Date: 05/31/19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS NOTICE OF MATERIAL CHANGE ENDORSEMENT Policy Number: 61 WEA 910215 Endorsement Number: Effective Date: 05/31/18 Effective hour is the same as statedon the Information Page of the policy. Named Insured and Address: DUROTECH, INC 11931 WICKCHESTER LN STE 205, HOUSTON TX 77043 This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of the Information Page. In the event of cancellation or other material change of the policy, we will mail advance notice to the person or organization named in the Schedule. The number of days advance notice is shown in the`Schedule. `iis endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. SCHEDULE 1. Number of days advance notice: 60 2. Notice will be mailed to: ALL CERT HOLDERS ON FILE WITH AGENT 11931 WICKCHESTER LN STE 205 Countersigned by Authorized Representative Form WC 42 0601 Printed in U.S.A. Process Date: 05/30/18 Policy Expiration Date: 05/31/19 EXHIBIT B PERFORMANCE BOND / STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally,by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of , 20 , (the "Contract") to commence and complete the construction of certain improvements described as follows: [Official project name] [Project limits] City of Pearland, Texas COP PN: [X##### (Obtain from City Project Manager)] BID NO.: [??-??? Obtain from City Purchasing Officer)] which Contract, including the Contract Documents as defined therein, 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 said Contract Work and shall in all respects duly and faithfully observe and perform all and singular the covenants, conditions, and agreements in and by said Contract agreed and covenanted by the Principal to be observed and performed, and according to the true intent and meaning of said Contract 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 Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder. 12/2007 00610- 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_ Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. END OF SECTION 12/2007 00610-2 of 2 EXHIBIT C PAYMENT BOND } STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of , 20 , (the "Contract") to commence and complete the construction of certain improvements described as follows: [Official project name] [Project limits] City of Pearland, Texas COP PN: [X##### (Obtain from City Project Manager)] BID NO.: [??-??? (Obtain from City Purchasing Officer)] which Contract, including the Contract Documents as defined therein, 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 or 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 Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder. 07/2006 00611 - 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_ Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. END OF SECTION 07/2006 00611 -2 of 2 CONSTRUCTION AGREEMENT CONSTRUCTION MANAGER AT RISK TABLE OF CONTENTS 1. General Provisions 1.1 Relationship of the Parties 1.2 General Conditions 1.3 Contract Documents 1.4 Owner 1.5 Contractor 1.6 Administration of the Contract 1.7 Subcontractors 1.8 Construction by Owner or by Separate Contractor 1.9 Changes in the Work 1.10 Prosecution and Progress 1.11 Payments and Completion 1.12 Protection of Persons and Property 1.13 Insurance and Bonds 1.14 Uncovering and Correction of Work 1.15 Miscellaneous Provisions 1.16 Termination or Suspension of the Contract 2. Construction Manager's Responsibilities 2.1 Preconstruction Phase 2.2 Guaranteed Maximum Price Proposal 2.3 Construction Phase 3. Owners Responsibilities 3.1 Information and Services 3.2 Owner's Designated Representatives 3.3 Architect 4. Compensation and Payments for Preconstruction Services 4.1 Compensation 4.2 Payments 5. Compensation for Construction Phase Services 5.1 Compensation 5.2 Guaranteed Maximum Price 5.3 Changes in the Work 6. Cost of the Work for Construction Phase 6.1 Costs to be Reimbursed 6.2 Costs Not to be Reimbursed 6.3 Discounts, Rebates and Refunds 6.4 Accounting Records 7. Construction Phase 7.1 Progress Payments 7.2 Final Payment 8. Miscellaneous Provisions 9. Termination or Suspension 9.1 Termination Prior to Establishing Guaranteed Maximum Price 9.2 Termination Subsequent to Establishing Guaranteed Maximum Price 10. Other Conditions and Services CITY OF PEARLAND STANDARD FORM OF AGREEMENT BETWEEN CITY AND CONSTRUCTION MANAGER AT RISK This Agreement is entered into by and between the City of Pearland, a Texas home-rule municipal corporation(the"City") and Durotech Inc. , a Texas corporation(the"Construction Manager" or Contractor") for the construction of_City of Pearland, Fire Station#8. SECTION 1. GENERAL PROVISIONS 1.1 Relationship of the Parties. 1.1.1 The Construction Manager accepts the relationship of trust and confidence established with the City by this Agreement, and covenants with the City to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the City. The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the City. The City shall endeavor to promote harmony and cooperation among the City, Architect, Construction Manager and other persons or entities employed by the City for the Project. 1.2 General Conditions. 1.2.1 Basic Definitions. 1.2.1.1 Addenda. Addenda are written or graphic instruments issued prior to the execution of the Contract, which modify or interpret the proposal documents, including Drawings and Specifications, by additions, deletion, clarification or corrections. Addenda will become part of the Contract Documents when the Agreement is executed. 1.2.1.2 Approved, Approved Equal and Approved Equivalent, or Equal relate to the substitution of materials, equipment or procedure approved in writing by the Architect prior to receipt of proposals. The substitution procedure process to be followed prior to receipt of competitive sealed proposals is described in the instruction to proposers. 1.2.1.3 Calendar Day. A "calendar day" is any day of the week or Month or year, no days being excepted. Unless otherwise expressly provided, all references to "day(s)" shall mean Calendar Day(s). 1.2.1.4 City/ City Representative. Whenever the word "City" is used, it shall mean and be understood as referring to the City of Pearland, Texas. The word"Owner" shall refer to the same entity and may be used interchangeably. Whenever the words "City's Representative" or "Representative" are used, it shall mean and be understood as referring to the City Project Manager or his delegate, who shall act as the City's agent. The City's Representative may inspect and issue instructions but shall not directly supervise the Contractor. The City's inspector has authority to reject the Work for failure to comply with the Contract Documents and/or applicable laws. 3 1.2.1.5 Contract Definitions: The term "Contract Documents" shall mean those documents listed in Paragraph 1.3. The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2)between the City and a Subcontractor or Sub-subcontractor, (3)between the City and Architect or(4)between any persons or entities other than the City and Contractor. The Architect shall be entitled,however,to performance and enforcement of obligations of the Contractor under the Contract intended to facilitate performance of the Architect's duties. 1.2.1.6 Contractor. Whenever the word "Contractor" is used, it shall mean the person(s), partnership, or corporation who has agreed to perform the work embraced in this Agreement and the other Contract Documents; specifically it shall mean the Construction Manager. 1.2.1.7 Contract Time. The period of time which is established in the Contract Documents for Substantial Completion of the Work. This period of time shall be accounted for in Calendar Days, as defined above, and is not subject to adjustment or extension without the written agreement of the City. The following definitions shall apply to Contract Time calculations: a. Work Day: As used herein, a "Work Day" is defined as any Monday through Friday, not a legal holiday, and any Saturday or Sunday specifically approved by the OWNER, in which the CONTRACTOR can perform six or more hours of work per the current construction schedule. CONTRACTOR agrees to request specific approval from the Construction Manager or Owner, in advance, to perform work on Saturdays or Sundays and in so doing agrees to pay all charges and costs for Inspection and or Construction Management services required during the performance of any such approved work. b. Rain Day: As used herein, is defined as any WORK DAY during which weather related conditions prevent the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items as identified in the current construction schedule. CONTRACTOR shall record Rain Days on the Pay Application each month for the review and possible approval by the OWNER. The approved Rain Day is then added to the Contract Time. c. IMPACT DAY: As used herein, is a day that is added to the CONTRACT TIME by the OWNER by Change Order to extend the Contract Time by one full Work Day. Impact Days, once approved by the OWNER, shall extend the Contract Time on a one-to-one basis to replace a Work Day lost to conditions that prevented the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items. Impact Days are added to the Contract Time by Change Order only (I‘b', at the end of the work and then only if, in the opinion of the OWNER, a time extension is warranted due to delays beyond the control of the 4 Contractor and required to complete the work within the Contract Time 1.2.1.8 Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.2.1.9 Extra Work. The term "Extra Work" shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by the City's Representative and approved by the City in writing prior to the work being done by the Contractor. 1.2.1.10 Final Completion. The term"Final Completion" shall mean that all the work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to material suppliers and subcontractors have been made, all documentation and warranties have been submitted, and all closeout documents have been executed and approved by the City. 1.2.1.11 Interpretation of Phrases. Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used, it is understood that the direction, requirement, permission, order, designation, or prescription of the City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to the City's Representative. In the interest of brevity the Cu'' Contract Documents may omit modifying words such as "all" or"any" and articles such as "the" and "an", but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.2.1.12 Nonconforming work. The term "nonconforming work" shall mean work or any part thereof that is rejected by the City's Representative as not conforming with the Contract Documents. 1.2.1.13 Notice to Proceed. A notice that may be given by the Owner to the Contractor that directs the Contractor to start the Work. 1.2.1.14 Partial Substantial Completion. Designation of Partial substantial Completion may be provided on components of the Work that must be placed into service prior to the completion of the entire Work. The contractor's One Year Warranty period for these items shall begin on the date of Partial Substantial Completion as designated by the Architect. The Architect shall determine and make all such designations. 1.2.1.15 Parties. The"parties" are the City and the Contractor. 1.2.1.16 Project. The term "Project" shall mean and include all that is required to obtain a final product that is acceptable to the City. The term"work" shall have like meaning. The Project is the total construction of which the Work performed under the C.61: Contract Documents may be the whole or a part and which may include construction by the City or by separate contractors. 5 1.2.1.17 ProTrak. As used herein describes the City's project management software used to enhance communications between the project team members. All product submittals, RFI's, RFPs, plan sheet changes, plans and specs are held and available to all team members within this web-based software. All payment applications are made and approved within the software. All team members will be given access and will use this software platform for project document transmittals. 1.2.1.18 Punch List. A comprehensive list prepared by the City prior to Substantial Completion to establish all items to be completed or corrected; this list may be supplemented by the Architect or the City. 1.2.1.19 Specifications. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. Organization of the Specifications into divisions, sections and articles, and arrangement of drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 1.2.1.20 Subcontractor. The teen "subcontractor" shall mean and include only those hired by and having a direct contact with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project, and all subcontractors shall look exclusively to the Contractor for any payments due. 1.2.1.21 Substantial Completion. The term "Substantially Completed" means that in the sole discretion of the City's Representative, the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price, including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Contractor. 1.2.1.22 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor,materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. The Work includes all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and things necessary, proper or incidental to the carrying out and completion of the terms of the Contract Documents and all other items of cost or value needed to produce, construct and fully complete the Work identified by the Contract Documents. 1.2.1.23 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 1.3 Contract Documents. 6 (1.114 1.3.1 The Contract Documents and their priority shall be as follows: 1.3.1.1 This signed Agreement 1.3.1.2 Addendum to this Agreement 1.3.1.3 Special Conditions 1.3.1.4 Technical specifications 1.3.1.5 Drawings 1.3.1.6 Instructions to Bidders and any other notices to Bidders or Contractor 1.3.1.7 Performance bond,Payment bonds,Bid bonds and Special bonds 1.3.1.8 Contractor's Proposal 1.3.2 Where applicable, the Contractor will be furnished one (1) CD of plans, drawings, specifications, and related Contract Documents for its use during construction. Plans and specifications provided for use during construction shall be furnished directly to the Contractor only. 1.3.3 The Contractor shall distribute copies of the plans and specifications to suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the plans and specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the work contemplated by this Agreement. 1.3.4 All drawings, specifications, and copies thereof furnished by the City shall not be re-used on other work, and with the exception of one(1) copy of the signed Contract Documents, all documents, including sets of the plans and specifications and"as built" drawings, are to be returned to the City on request at the completion of the work. All Contract Documents, models, mockups, or other representations are the property of the City. In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide the better quality or greater quantity of Work, or (2) comply with the more stringent requirement, either or both in accordance with the City's interpretation. 1.4 Owner. 1.4.1 The Owner (or City) is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the City of Pearland or the City's authorized representative. The terms "Owner"and"City"may be used interchangeably throughout this Agreement. 1.4.2 The presence of the City or Architect at the Work site does not imply acceptance or approval of Work. 7 1.4.3 Information And Services Required Of The Owner. 1.4.3.1 Information or services reasonably necessary for the Work and under the City's control shall be furnished by the City with reasonable promptness where requested in writing by the Contractor. In any instance where information or services from the City or Architect is required, Contractor shall promptly notify the Architect in writing, with a copy to the City, of the particular need. Absent such notification, any Claim based upon lack of such information or services shall be waived. 1.4.4 Owner's Right to Stop the Work. 1.4.4.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 1.14.2. or persistently fails to carry out Work in accordance with the Contract Documents, the City may issue a written order to the Contractor to stop the Work,or any portion thereof, until the cause for such order has been eliminated;however,the right of the City to stop the Work shall not give rise to a duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity. 1.4.5 Owner's Right to Carry Out the Work. 1.4.5.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt Culb\' of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness, the City may, without prejudice to other remedies the City may have, correct such deficiencies.In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Architect's additional services made necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the City. 1.4.5.2 After the Work is complete, the City may make emergency repairs to the Work, if necessary, to prevent further damage, or if the Contractor does not promptly respond to a notice of condition requiring repairs. Contractor shall be responsible to City for this cost if the repairs are due to the Contractor's defective Work. If payments then or thereafter due the Contractor are not sufficient to cover such costs, the Contractor shall pay the difference to the City. 1.4.6 Owner's Right to Use or Occupy. 1.4.6.1 The City shall have the right to occupy or use without prejudice to the right of either party, any completed or largely completed portions of the Project, notwithstanding the time for completing the entire Work or such portions may not have expired. Such occupancy and use shall not constitute acceptance of any Work not in accordance with the Contract Documents. 1.5 Contractor. 8 1.5.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor"means the Contractor or the Contractor's authorized representative. 1.5.2 The Contractor shall perform the Work in accordance with the Contract Documents 1.5.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 1.5.4 Review of Contract Documents and Field Conditions by Contractor. 1.5.4.1 The Contractor shall carefully study and compare the Agreement, Conditions of the Contract, Drawings, Specifications, Addenda, and Modifications and shall at once report to the Architect any error, inconsistency, or omission the Contractor discovers. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect,the Contractor shall assume responsibility for such performance and shall pay the total amount of the attributable costs for correction. Contractor shall not be liable to City or Architect for any damage resulting from such error, inconsistency or omission which Contractor should not have discovered or which Contractor did discover and at once so reported. Contractor shall do no Work without approved Drawings and Specifications marked Issued for Construction. 1.5.4.2 If the Contractor fails to perform the obligations of Paragraph 1.5.4.1., the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations. 1.5.4.3 The Contractor shall not be entitled to additional compensation for the "rework portion" of any additional work caused by its failure to carefully study and compare the Contract Documents prior to execution of the Work. 1.5.4.4 The Contractor shall make a reasonable attempt to interpret the Contract Documents before asking the Architect for assistance in interpretation. The Contractor shall not ask the Architect for observance of work prior to the Contractor's field superintendent's personal inspection of the Work and his determination that the Work complies with the Contract Documents. The Contractor shall arrange meetings prior to commencement of the Work of all major Subcontractors to allow the Subcontractor(s) to ask for any interpretation it may require. 1.5.4.5 If, in the opinion of the Architect, the Contractor does not make a reasonable effort to comply with the above requirements of the Contract Documents and this causes the Architect or its Consultants to expend an unreasonable amount of time 9 in the discharge of the duties imposed on the Architect by the Contract Documents,then the Contractor shall bear the cost of compensation for the Architect's additional services made necessary by such failure. The Architect will give the Contractor prior notice of intent to bill for additional services related to above requirements before additional services are performed. 1.5.4.6 If the Contractor has knowledge that any of the products or systems specified will perform in a manner that will limit the Contractor's ability to satisfactorily perform Work or to honor Contractor's Warranty, Contractor shall promptly notify the Architect, in writing,providing substantiation for Contractor's position. Any necessary changes, including substitution of materials, shall be accomplished by appropriate Modification. 1.5.5 Supervision and Construction Procedures. 1.5.5.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, (116\' methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the City and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. 1.5.5.2 The Contractor shall be responsible to the City for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. It is understood and agreed that the relationship of the Contractor to City shall be that of an independent contractor. Nothing contained herein or inferable herefrom shall be deemed or construed to (1)make Contractor the agent, servant or employee of the City, or (2) to create any partnership,joint venture, or other association between City and Contractor. Any direction or instruction by City or any of its authorized representatives in respect of the Work shall relate to the results the City desires to obtain from the Work, and shall in no way affect Contractor's independent contractor status described herein. 1.5.5.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 1.5.5.4 Contractor shall execute the Work in a good and workmanlike manner, continuously and diligently in accordance with generally accepted standards of construction management and practice for construction of projects similar to the Project, using qualified, careful and efficient workers and in conformity with the provisions of this 10 Contract and the other Contract Documents. 1.5.6 Labor and Materials. 1.5.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 1.5.6.2 The Contractor may make substitutions only with the consent of the City, after evaluation by the Architect and in accordance with a Change Order. 1.5.6.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 1.5.7 Warranty. 1.5.7.1 The Contractor warrants to the City and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents and recognized industry standards. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance (unless such maintenance is Contractor's responsibility), improper operation, or normal wear and tear. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The warranties set out in this Paragraph are not exclusive of any other warranties or guarantees set out in other places in the Contract Documents or implied under applicable law. 1.5.7.2 Prior to final payment, Contractor shall furnish any manufacturer warranties required by.the Contract Documents. 1.5.7.3 When deemed necessary by the City, and prior to installation of any items specifically made subject to a performance standard or regulatory agency standard under any provision of the Contract Documents, Contractor shall furnish proof of conformance to the Architect. Proof of Conformance shall be in the form of(1) an affidavit from the manufacturer certifying that the item is in conformance with the applicable standard, (2)an affidavit from a testing laboratory certifying that the product has been tested within the past year and is in conformance with the appreciated standard, or(3) such further reasonable proof as required by the Architect. 1.5.7.4 The warranties of Contractor provided in Subparagraph 1.5.7.1. shall in no way limit or abridge the warranties of the suppliers of equipment and 11 system which are to comprise a portion of the Work and all of such warranties shall be in form and substance as required by the Contract Documents. Contractor shall take no action or fail to act in any way which results in the termination or expiration of such third party warranties or which otherwise results in prejudice to the rights of City under such warranties. Contractor agrees to provide all notices required for the effectiveness of such warranties and shall include provisions in the contracts with the providers and manufacturers of such systems and equipment whereby the City shall have a direct right, but not a duty, of enforcement of such warranty obligations. 1.5.7.5 In the event of failure of materials,products, or workmanship, either during construction or the warranty period (which shall be one (1) year from the Date of Final Completion, except where a longer period is specified), the Contractor shall take appropriate measures to assure correction or replacement of the defective items, whether notified by the City or Architect. 1.5.7.6 Approximately eleven (11) months after Substantial Completion, the Contractor shall accompany the City and Architect on a complete inspection of the Project and be responsible for correcting any observed or reported deficiencies within thirty(30) calendar days. 1.5.8 Permits, Fees and Notices. 1.5.8.1 Unless otherwise provided in the Contract Documents, the Contractor shall establish an Allowance in the GMP for the payment for gas, electric utility connections to the project. Owner shall pay the Contractor the direct costs of these connection (ilk\ fees as determined by the Utility's Terms and Conditions statement. 1.5.8.2 Water and Sewer utilities will be established and service provided at no-charge to the contractor. However the contractor may provide the site with a temporary "hydrant meter"obtainable from the Public Works department for the refundable deposit of $1,425.00 plus a non-refundable$75.00 setting fee. 1.5.8.3 Upon acceptance of the project as Substantially Complete the Owner and Contractor shall arrange for the transfer of all utilities to the Owner's account. To avoid any interruption of critical utility services,Contractor shall notify Owner 60 days prior to anticipated transfer date. Owner shall immediately make arrangements to establish accounts as necessary to transfer billing within a seven day window of the scheduled date. Should transfer of utility billing be delayed through no fault of Contractor,Owner shall pay Contractor a daily utility rate equal to the charges accrued between planned transfer date and date of actual transfer. 1.5.8.4 The Contractor shall include and pay for any inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. All permit fees for the project shall be the responsibility of the Owner. The City will not charge inspection fees for inspection services provided by its internal forces. 1.5.8.5 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders and all other requirements of public authorities applicable to performance of the Work. The Contractor shall procure and obtain all bonds required of the City or the Contractor by the Contract Documents. In connection with such bonds, the Contractor shall prepare all applications, supply all necessary back-up 12 material, and furnish the surety with any required information. The Contractor shall also obtain and pay all charges for all approvals for street closing and other similar matters as may be necessary or appropriate from time to time for the performance of the Work. 1.5.8.6 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are contrary therewith, the Contractor shall promptly notify the Architect and City in writing, and necessary changes shall be accomplished by appropriate Modification. 1.5.8.7 If the Contractor performs Work which it knows to be contrary to applicable laws, statutes, ordinances, building codes, and rules and regulations and fails to provide such notice to the Architect and City, the Contractor shall be liable for any cost incurred by the City due to the failure to provide notice and shall promptly remediate any and all work identified to be in violation. 1.5.8.8 The Contractor shall be responsible for timely notification to and coordination with all utility companies regarding the provision of or revising of services to the Project. The Contractor shall inform the Architect at once when the City's participation is required. Connections for temporary and permanent utilities required for the Work are the responsibility of the Contractor. Payment for temporary and/or permanent utility services through Substantial Completion of the Work shall be the responsibility (17 of the Contractor. 1.5.9 Allowances. 1.5.9.1 Material and Equipment Allowances: The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the materials and equipment delivered and unloaded at the site. The Contractor's installation labor, overhead, profit, and other expenses contemplated for the allowance material and equipment shall be included in allowance only where called for in the Contract Documents. The Contractor shall purchase the allowance materials and equipment as directed by the Architect on the basis of the lowest responsive bids of at least three (3) competitive bids. If the actual cost of the material and equipment delivered and unloaded at the site is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Paragraph 1.5.9.1 and (2) changes in Contractor's costs, subject to the limitations set forth at Paragraph 1.9.2.1 (c). 1.5.9.2 Materials and equipment under an allowance shall be selected with reasonable promptness by the City to avoid delays in the Work (provided that if a decision is needed by a certain date to avoid delay, Contractor shall notify Architect in writing sufficiently in advance of the needed date to allow reasonable time for selections). 13 1.5.9.3 Utility Connection Allowances: The Contractor shall ++'1 include in the Contract Sum Utility Connection allowances stated in the Contract \.- Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the Terms and Conditions of the Utility to perform the installation of materials and equipment of the site to provide the project with the subject utility. The Contractor's labor, overhead, profit, if any, contemplated for the Utility allowance shall be included in allowance only where called for in the Contract Documents. If the actual cost of the utility connection fees is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. 1.5.10 Superintendent. 1.5.10.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. Notwithstanding the foregoing, Contractor shall keep on the job the superintendent approved by City who shall not be transferred from the Project without City's consent (which shall not be unreasonably withheld). However, such obligation to furnish the superintendent shall not be construed (1) to preclude the promotion within Contractor's organization of any person assigned to the Project or (2) to give rise to any liability of Contractor if any person assigned to the Project leaves Contractor's employ. If City reasonably determines that any employee of Contractor or of its Subcontractors is careless or not qualified to perform the Work assigned to him, and City and Contractor cannot, after a diligent and good faith attempt, agree what action should be taken with respect to the removal or reassignment of such employees, the Contractor shall promptly remove such employee from the Project and replace such employee. At all times while procurement activities are being performed in Contractor's office, Contractor shall appoint an individual(approved by City, acting reasonably) authorized to act on behalf of Contractor and with whom City may consult at all reasonable times, and who shall be authorized to receive the instructions, requests and decisions of City. All of Contractor's and Subcontractor's personnel shall comply with all applicable health, safety, and loss prevention rules of applicable authorities. Contractor shall,at its own expense,remove from the Project any person who fails to comply with such rules and instructions in any material respect. 1.5.11 Contractor's Construction Schedules. 1.5.11.1 The Contractor shall, promptly after executing the Contract, develop a construction schedule reasonably defining a plan for completing the Work within the required time. The format and detail of the schedule shall be in keeping with the size and complexity of the Project, and the schedule and all subsequent updates shall be subject to the approval of the City and Architect. The schedule and any updates shall not exceed i1"\ time limits current under the Contract Documents including granted time extensions, and shall be revised at appropriate intervals as reasonably required by the City and Architect, 14 shall be related to the entire Project (if more than one Contract is involved in the Project), and shall provide for expeditious and practicable execution of the Work. All updated schedules shall address the subject of how the Contractor intends to overcome any delays previously encountered. The Contractor shall submit to the Architect with each monthly Application for Payment, a copy of the updated construction schedule as a prerequisite for approval of Applications for Payment. 1.5.11.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. 1.5.11.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the City and Architect. 1.5.11.4 The process of approving Contractor's schedules and updates to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Contractor's schedules. Approval of a Contractor's schedule does not constitute a commitment by the City to furnish any Owner- furnished information or material any earlier than City would otherwise be obligated to furnish that information or material under the Contract Documents. Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a Claim for additional compensation or time. In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs to a minunum. The construction schedules shall be in a detailed format satisfactory to the City and the Architect and shall also: (1)provide a graphic representation of all activities and events that will occur during performance of Work; (2) identify each phase of construction and occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents(hereinafter refereed to as Milestone Dates). If not accepted, the construction schedules shall be promptly revised by the Contractor in accordance with the recommendations of the City and Architect and re-submitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedules and shall promptly advise the City of any delays or potential delays. The accepted construction schedules shall be updated to reflect actual conditions as set forth in Paragraph 1.5.11.1, if requested, by either the City or Architect. In the event any schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay. In no event shall any schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order. 1.5.12 Documents and Samples at the Site. 1.5.12.1 The Contractor shall maintain at the site for the City one record copy of the Permit Drawings, Specifications, Addenda, Change Orders, As Built Mark-ups and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the City upon 15 completion of the Work. 1.5.13 Shop Drawings,Product Data and Samples. 1.5.13.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub- subcontractor,manufacturer, supplier or distributor to illustrate some portion of the Work. 1.5.13.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 1.5.13.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 1.5.13.4 Shop Drawings,Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Paragraph 1.6.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. 1.5.13.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the City or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. 1.5.13.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. If, in the opinion of the Architect, the shop drawings indicate a lack of study and the review by the Contractor is incomplete, or indicate an inadequate understanding of the Work covered by the shop drawings,prior to submittal to the Architect,the shop drawings will be returned, unchecked, to the Contractor for correction of any/all of these deficiencies for subsequent resubmittal. 1.5.13.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 16 1.5.13.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,Product Data, Samples or similar submittals by the Architect's approval thereof. 1.5.13.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals,to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. 1.5.13.10 The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems,materials or equipment are specifically required of the Contractor by the Contract Documents, the City and the Architect will specify all performance and design Cr.4‘' criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The City and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the City and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Paragraph 1.5.13.10,the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. 1.5.13.11 Adequate copies of Shop Drawings for architectural, structural, mechanical and electrical work shall be submitted to the Architect for review in the order of scheduled and upcoming work. 1.5.13.12 The Contractor shall submit complete Drawings, Data and Samples to the Architect at least thirty (30) days prior to the date the Contractor needs the reviewed submittals returned. The Contractor shall be prepared to submit color samples on any key items within sixty (60) days of the execution of the Contract. Once samples of all key items are received,the Architect will fmalize color selections. 17 1.5.13.13 The Contractor shall submit the number of copies of Product Data and Samples which the Contractor and its Subcontractor(s) need for their use. Where Shop Drawings are involved, the Contractor shall submit one (1) high quality reproducible transparency and one (1) opaque print of the Shop Drawings for the Architect. The reproducible transparency will be marked by the Architect and/or its consultants. After final review and correction of the submittal, Contractor shall send one (1) corrected set to the Architect and one (1) to each of the Architect's consultants involved with the particular section of Work. The Contractor shall provide composite BIM Model within three (3) months of the issuance of the GMP showing how all piping, ductwork, lights, conduit, equipment, etc. will fit into the ceiling space allotted, including clearances required by the manufacturer, by code, or in keeping with good construction practice. Space for all trade elements must be considered on the same model. BIM shall reflect components shown in a 1/4 inch scale. 1.5.14 Use of Site. 1.5.14.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 1.5.14.2 The Contractor's access to the site, parking, field office location,material and equipment storage, and confinement of said areas shall be coordinated with, and approved by the City prior to the Contractor's mobilization on the site. Once agreed upon,the Contractor shall not adjust or increase any of the above areas without prior consent by the Owner. 1.5.15 Cutting and Patching. 1.5.15.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 1.5.15.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the City or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the City or a separate contractor except with written consent of the City and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the City or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. Any such alteration involving cutting or removal of previously installed work shall be approved in writing by the Contractor and the Architect prior to initiation of the alteration. 1.5.16 Cleaning Up. 1.5.16.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the 18 Project waste materials, rubbish,the Contractor's tools, construction equipment, machinery and surplus materials. The Contractor shall be responsible for protection of the Work and shall repair or replace damaged work at Substantial Completion of the Work. The Contractor shall remove all temporary protections at the completion of the Work. 1.5.16.2 If the Contractor fails to clean up as provided in the Contract Documents,the City may do so and the cost thereof shall be charged to the Contractor. 1.5.16.3 Prior to the Architect's inspection for Substantial Completion, the Contractor shall: clean exterior surfaces exposed to view; remove temporary labels, stains, and foreign substances; polish transparent and glossy surfaces; clean equipment and fixtures to a sanitary condition; clean roofs; clean the Project site; sweep paved areas and rake clean other surfaces; and remove trash and surplus materials from the Project site. 1.5.17 Access to Work. 1.5.17.1 The Contractor shall provide the City, its contractors, vendors or employees and Architect access to the Work in preparation and progress wherever located. Contractor may impose such safety"rules and regulations" on these entities as are imposed on its own sub-contractors,vendor and employees but shall not require undue or burdensome requirements that Contractor's own sub-contractors,vendors or employees are not also subject to. 1.5.18 Royalties, Patents and Copyrights. 1.5.18.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the City and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the City or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. 1.5.19 INDEMNIFICATION AND RELEASE. 1.5.19.1 CONTRACTOR SHALL PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS,EXPENSES,LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON,INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY, TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THIS AGREEMENT. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE, ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT, JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED 19 WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY. 1.5.19.2 The indemnifications contained in Paragraph 1.5.19.1. shall include but not be limited to the following specific instances: (a) The City is damaged due to the act, omission, mistake, fault or default of the Contractor. (b) In the event of any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) In the event of any and all injuries to or claims of adjacent property owners caused by the Contractor,its agents,employees,and representatives. (d) In the event of any damage to the floor,walls,etc.,caused by the Contractor's personnel or equipment during installation. (e) The removal of all debris related to the Work. (f) The acts and omissions of the subcontractors. (g) The Contractor's failure to comply with applicable federal,state,or local regulations,that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. 1.5.19.3 The indemnification obligations of the Contractor under this Paragraph shall not extend to include the liability of any professional engineer,the architect, their consultants, and agents or employees of any of them arising out of(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of them,provided such giving or failure to give is the primary cause of the injury or damage. 1.5.19.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Paragraph 1.5.19.1., such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 1.5.19.5 Contractor's indemnification obligations hereunder shall Culh survive termination, completion, abandonment and final payment. 20 1.5.19.6 The Contractor assumes full responsibility for the Work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property(whether property of either of the parties hereto,their employees, or of third parties)that is caused by or alleged to be caused by, arising out of,or in connection with the Contractor's Work to be performed hereunder. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor,any Subcontractor, or any person or organization directly or indirectly employed by any of them to perform or furnish work on the Project, this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City. 1.5.20 Reproducible Record Drawings. 1.5.20.1 Required as part of Final Completion of the Project, the Contractor shall submit one (1) complete set of drawings with all changes made during construction, including concealed mechanical, electrical, and plumbing items 1.6 Administration of the Contract. �' 1.6.1 Architect. 1.6.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative or such successor Architect as City may appoint by written notice to Contractor from time to time. 1.6.1.2 City shall notify Contractor when the duties, responsibilities or limitations of authority of the Architect have been modified. 1.6.1.3 If the employment of the Architect is terminated,the City may elect to appoint a replacement Architect, or at its option, elect to complete the Project using another consultant or representative to perform the balance of the Architect's functions on the Work. 1.6.1.4 Except as herein expressly provided, the Contractor shall not. be relieved of its obligation to perform the Work in strict accordance with the Contract Documents by the activities or duties of the Architect. 1.6.2 Architect's Administration of the Contract. 1.6.2.1 Certain portions of the administration of the Contract will be performed by the Architect. The Architect shall not have the authority to act on behalf of (r•., the City unless such authority is expressly granted in the Contract Documents, nor shall such authority be implied from any act or representation of the Architect. The City is free to elect to have some of the administration duties set out for the Architect to perform under 21 the Contract Documents performed by a construction manager or by employees of the City. 1.6.2.2 The Architect, as a representative of the City, will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the City informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the City against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, except as provided in Paragraph 1.5.5.1. In no event shall City or any other party have control over,be in charge of, or be responsible for construction means,methods,techniques, sequences, procedures, or for safety precautions and programs in connection with the Work, since these are solely Contractor's responsibilities. City will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. City will not have control over, be in charge of, and will not be responsible for the acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 1.6.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 1.6.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized,the City and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the City. 1.6.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 1.6.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with Paragraphs 1.15.5.2. and 1.15.5.3., whether or not such Work is fabricated, installed or completed. However,neither this authority of the Architect nor a decision made reasonably and in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment 22 suppliers,their agents or employees, or other persons or entities performing portions of the Work. 1.6.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples,but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the City, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of its obligations. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 1.6.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Paragraph 1.9.4. 1.6.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of Final Completion, will receive and forward to the City, for the City's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 1.6.2.10 If the City and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. 1.6.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the City or Contractor. The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the time within which interpretations required of the Architect shall be furnished in compliance with this Paragraph 1.6.2.11,then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until thirty(30) days after written request is made for them. 1.6.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. 1.6.2.13 The Architect's decisions on matters relating to all Work will be final if consistent with the intent expressed in the Contract Documents. 23 1.6.3 Claims and Disputes. 1.6.3.1 Definition. A Claim is any demand or assertion by the Contractor that it should be paid more money than the Contract Sum, as adjusted under the Change Order provisions herein, by the City because of action or inaction on the part of City,Architect, or any party for whom City is responsible, or any party with whom City has separately contracted for other portions of the Project, including but not limited to any demand or assertion that Contractor's performance has been delayed, interrupted or interfered with, that Contractor's performance has been accelerated, constructively accelerated, or suspended, that Contractor's performance has been wrongfully terminated, that the Contract Documents have been misinterpreted, that here has been a failure of payment,that Contractor has encountered concealed or unknown conditions,that Contractor has encountered hazardous materials, that there are problems with the Contract Documents, or the timing of Architectural approvals or decisions, that action of the City have been intentionally wrongful or deceptive in any way to the Work, that the amount of time or money granted in a Construction Change Directive is inadequate, that an item treated as a minor change in the Work should have been treated as a Change Order,that a time extension granted was inadequate,or that Contractor is entitled to any other relief, on any legal theory, related to the Work and the Contract. Nothing contained in this subparagraph shall be construed as creating any Contractor right to make a claim, where no such right otherwise exists. 1.6.3.2 Notice Requirement: Within ten (10) calendar days of the (11.1'\ first occurrence of an event that Contractor has any reason to believe might result in a Claim, or within ten(10) calendar days of Contractor's discovery of the first occurrence of the event that Contractor has any reason to believe might result in a Claim, if the first occurrence of the event was willfully hidden from the Contractor, the Contractor shall file a written document clearly captioned "Notice of Claim" with City and Architect. The notice shall clearly set out the specific matter of complaint, and the impact of damages which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the notice. If the impact or damages cannot be assessed as of the date of the notice, the notice shall be amended at the earliest date that is reasonably possible. 1.6.3.2.1 Any Claim or portion of a Claim that has not been made the specific subject of a notice strictly in accordance with the requirements of this Paragraph shall be waived. It is imperative that City have timely, specific notice of any subject, the impact of which City may be in a position to mitigate. 1.6.3.2.2 No course of conduct or dealings between the parties, nor implied acceptance of alteration or additions to the Work or changes to the Contract schedule, shall be the basis for any claim for an increase in the Contract Sum or change in the Contract Time. 1.6.3.3 Claims Handling During Construction: After receipt of a Notice of Claim, the City may elect to refer the matter to the Architect or another party for 24 review. Contractor will attend meetings called to review and discuss the Claim and /" mitigation of the problem, and shall furnish any reasonable factual backup of the Claim requested. The City may also elect to defer consideration of the Claim until the Work is completed, in which case the same review options shall be available to the City at the completion of the Work. At any stage, the City is entitled to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and if this referral is made, Contractor will take part in the mediation process. The filing, mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of the Work during the pendency of any claim, except termination under City's direction to stop the Work. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. The parties shall share the Mediator's fee and any filing fees equally, and the Mediation shall be held in Brazoria County, Texas. 1.6.3.4 Claims Handling Following Construction: The acceptance of fmal payment shall constitute a waiver of Claims by the Contractor which have not previously been identified in a timely notice of Claim and specifically reserved in the final Application for Payment. 1.6.3.5 Claims for Concealed or Unknown Conditions. Only if conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or(2)unknown physical conditions of an unusual nature,which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then Contractor shall be entitled to make a Claim if it can satisfy all of the other requirements of Paragraph 1.6. 1.6.3.6 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice and prior approval of City must occur before Contractor may execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 1.12.4. 1.6.3.7 Calculating Claim Amount: In calculating the amount of any Claim,the following standards will apply: (a) No indirect or consequential damages will be allowed. (b) All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses of labor efficiency, or on a comparison of planned man loading to actual man loading, or any other analysis that is used to show damages indirectly. (c) Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong. (d) The maximum daily limit on any recovery for delay shall be the amountestablished by the Contractor for job overhead costs, defined in the 25 Schedule of Values, divided by the total number of calendar days of Contract Time called for in the original Contract. Absent an overhead amount in the Schedule of Values, the amount estimated by the Contractor for job overhead costs shall be used. (e) The maximum amount of all Claims is expressly agreed to be limited to five percent(5%)of the Contract Sum. 1.7 Subcontractors. 1.7.1 Definitions. 1.7.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term"Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 1.7.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. 1.7.2 Award of Subcontracts and Other Contracts for Portions of the Work. 1.7.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the City, through the Architect, the names of persons or entities (including those who are to furnish labor, materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the City or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the City or Architect to reply promptly shall constitute notice of no reasonable objection. 1.7.2.2 The Contractor shall not contract with a proposed person or entity to whom the City or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 1.7.2.3 If the City or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the City or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute 26 Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 1.7.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the City or Architect makes reasonable objection to such substitute. 1.7.2.5 The Contractor shall submit the list of proposed Subcontractors on a form provided by the Architect. The Contractor may obtain blank copies from the Architect. 1.7.2.6 The Contractor and Subcontractors are required to visit the site and completely familiarize themselves with the existing conditions prior to the submission of Proposal(s). No additional increase in the Contract amount will be provided when existing or known conditions require a certain amount of work to comply with the intent of the Contract Documents. 1.7.3 Sub-contractual Relations. 1.7.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the City and Architect. Each subcontract agreement shall preserve and protect the rights of the City and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 1.7.4 Contingent Assignment Of Subcontracts. 1.7.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the City provided that: (a) assignment is effective only after termination of the Contract by the City for cause pursuant to Paragraph 1.16.2. and only for those subcontract agreements which the City accepts by notifying the Subcontractor and Contractor in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 27 (17 1.7.4.2 City shall only be responsible for compensating Subcontractor for Work done or materials furnished after the date City gives written notice of its acceptance of the subcontract agreement. 1.7.4.3 Each Subcontract and assignment shall provide that the City shall only be responsible to the Subcontractor for those services and materials furnished by the Subcontractor subsequent to the City's exercise of any rights under this contingent assignment. 1.7.5 Responsibility. 1.7.5.1 Contractor shall be fully responsible for the performance of its Subcontractor, including those selected or approved by the City. 1.8 Construction by Owner or by Separate Contractors. 1.8.1 Owner's Right to Perform Construction and to Award Separate Contracts. 1.8.1.1 The City reserves the right to perform other construction work, maintenance and repair work near or adjacent to the site during the time period of the Work. Owner may perform other Work with separate contractors. City shall have access to the site at all times. Any contractor performing work on the site whether for the project or for other projects that require access through this site shall maintain the same insurance and indemnity limits as those of the Contractor. 1.8.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 1.8.2 Mutual Responsibility. 1.8.2.1 The Contractor shall afford the City and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 1.8.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the City or a separate contractor,the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the City's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 1.8.2.3 The City shall be reimbursed by the Contractor for costs incurred by the City which are payable to a separate contractor because of delays, 28 improperly timed activities or defective construction of the Contractor. 1.8.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the City or separate contractors as provided in Paragraph 1.12.2.5. 1.8.2.5 The City and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 1.5.15. 1.8.3 Owner's Right to Clean Up. 1.8.3.1 If a dispute arises among the Contractor, separate contractors and the City as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the City may clean up and the Architect will allocate the cost among those responsible. 1.9 Changes in the Work. 1.9.1 General. Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work. The Contract Sum and/or Contract Time may be increased for changes in the Work if the provisions of this Paragraph have been met. 1.9.1.1.1 No change in the Contract Sum and/or Contract Time will be allowed for a change in the Work unless prior to performing the changed Work, the Contractor has provided the City in writing a proposal for any change in price and/or change in Contract Time caused by the change in Work, and a Change Order is subsequently executed. A field directive or field order shall not be recognized as having any impact upon the Contract Sum or the Contract Time, and Contractor shall have no Claim therefore, unless it shall, prior to complying with the directive and in any event within fourteen (14) calendar days of receiving the directive, submit a change proposal to the City, and a Change Order is subsequently executed, or Contractor satisfies the requirements of Paragraph 1.6.3. Contractor's proposal shall be subject to City's acceptance and remain firm and irrevocable for a period of forty-five (45) calendar days after receipt by City. Thereafter, Contractor reserves the right to resubmit such change proposal upon different pricing and time of performance terms. 1.9.1.2 A Change Order shall be based upon agreement among the City, Contractor and Architect; a Construction Change Directive requires agreement by the City and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the chitect alone. 1.9.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless 29 otherwise provided in the Change Order, Construction Change Directive or order for a (41 ' minor change in the Work. Except as permitted in Paragraph 1.9.3., a change in the Contract Sum or the Contract Time shall be accornplished only by Change Order. 1.9.1.4 The Contractor, upon receipt of written notification by the Architect of a proposed item of change in the Work, shall prepare as soon as possible a Change Proposal in such form or forms as directed by the Architect. (a) Each separate Change Proposal shall be numbered consecutively and shall include material costs, labor costs, fees, overhead and profit. The Change Proposal shall specify all costs related to the proposed change in the Work, including any disruption or impact on performance. (b) The Subcontractor's itemized accounting shall be included with the Change Proposal. (c) If a Change Proposal is returned to the Contractor for additional information or if the scope of the proposed change in the Work is modified by additions, deletions or other revisions, the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the Architect. (d) A revised Change Proposal shall bear the original Change Proposal number suffixed by the letter "R" to designate a revision in the original Change Proposal. If additional revisions to a revised Change Proposal are necessary, each subsequent revision shall be identified by an appropriate numeral suffix immediately following the"R"suffix. (e) Upon writen approval of a Change Proposal by the City,the Architect will prepare an approp fate Change authorizing such change in Work. (f) The Contractor shall request extensions of Contract Time due to changes in the Work only at the time of submitting its Change Proposal. Contractor's failure to do so shall represent a waiver of any right to request a time extension. 1.9.2 Change Orders. 1.9.2.1 A Change Order is a written instrument prepared by the Architect and signed by the City, Contractor and Architect, stating their agreement upon all of the following: (a) change in.he Work; and the amount of the adjustment, if any, in the Contract Sum; (b) the extent of the adjustment, if any, in the Contract Time. 1.9.2.2 Methods used in determining adjustments to the Contract Sum 30 may include those listed below: (a) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; (b) unit prices stated in Contract Documents or subsequently agreed upon; (c) cost shall be determined in a manner agreed upon by the parties and a mutually acceptable fixed fee, or the percentage fee established at Subparagraph 1.9.3.6., or (d) as provided in Subparagraph 1.9.3.6. 1.9.2.3 Agreement on any Change Order shall constitute a final settlement of all Claims by the Contractor directly or indirectly arising out of or relating to the change in Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs and impact costs associated with such change and any and all adjustments to the Contract Sum and the Contract Time. 1.9.3 Construction Change Directives. 1.9.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the City and Architect, directing a change in the Work prior to agreement on adjustment,if any, in the Contract Sum or Contract Time, or both. The City may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 1.9.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. 1.9.3.3 The Construction Change Directive shall include a unilateral change in the Contract Sum and/or Contract Time reflecting the City's view of the appropriate change in the Contract Sum and/or Contract Time for the change in Work covered by the Construction Change Directive. Until agreement is reached by the City and Contractor on these issues, the changes in Contract Sum and Contract Time set out in the Construction Change Directive shall be used for Schedule of Values, payment and scheduling purposes. 1.9.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 1.9.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective 31 immediately and shall be recorded as a Change Order. 1.9.3.6 In the absence of an agreement between City and Contractor on the proper change to the Contract Sum or Contract Time because of a change in the Work, Contractor may treat the matter as a Claim under Paragraph 1.6.3. In such event,the Contractor shall be entitled to recover only the amount by which the Cost of the Work has been reasonably increased over the Cost of Work without the change in the Work,plus five percent(5%). 1.9.3.7 Pending final determination of the cost of a Construction Change Directive to the City, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the City for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase, if any,with respect to that change. 1.9.4 Minor Changes in the Work. 1.9.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the City and Contractor. The Contractor shall carry out such written orders promptly. 1.9.5 Changes Funded By Allowances. 1.9.5.1 Allowances balances may be used to fund changes in the Work. The Contractor will not be allowed an overhead and profit mark-up when changes in the Work are funded by one of the Allowances. 1.10 Prosecution and Progress. 1.10.1 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 his Work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction; provided, however, that the order and the time of prosecution shall be such that the Work shall be Substantially Completed as a whole and in part, in accordance with this Contract and the Contract Time; provided, also, that when the OWNER is having other work done, either by contract or by his own forces, the Architect may direct the time and manner of constructing the Work done under this Contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized, and the CONTRACTOR shall fully cooperate and coordinate its Work with OWNER or such other contractors. 1.10.1.1 The CONTRACTOR shall submit, an updated schedule with every pay estimate for review by the Architect, schedules which shall show the order in which the CONTRACTOR proposes to carry on the Work, with dates on which the CONTRACTOR will start the several parts of the work, and estimated 32 dates of completion of the several parts. Such schedules shall show completion of the Work within the Contract Time, and/or shall show such recovery efforts as CONTRACTOR intends to undertake in the event Substantial Completion of the Work is delayed. 1.10.1.2 EXTENSION OF TIME. The CONTRACTOR agrees that he has submitted his Bid Proposal 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 as hereinafter set forth, and that he shall not be entitled to, nor will he request, an extension of time on this Contract, except when Substantial Completion of the Work has been delayed solely by strikes, lockouts, fires, Acts of God, or by any other cause which the Architect shall decide justifies the delay. The CONTRACTOR shall give the Architect prompt notice, in writing and within three (3) days of the start of any such delay, of the cause of any such delay, and its estimated effect on the Work and the schedule for completion of the Work. Upon receipt of a written request for an extension of the Contract Time from the CONTRACTOR, supported by relevant and all requested documentation, the Architect shall submit such written request, together with his written recommendation, to the OWNER for consideration. If the delay is not attributable in whole or in part to any act or omission of CONTRACTOR, its subcontractors or suppliers, and if the OWNER determines that CONTRACTOR is entitled to an extension of time under the terms of the Contract, the OWNER shall grant an extension of time for Substantial Completion of the Work, sufficient to compensate for the delay, and such extension of time shall be CONTRACTOR's sole and exclusive remedy, except as may be otherwise provided herein. No extensions of Contract Time shall be made for delays occurring prior to the Contractor's mobilization as defined in the City's Specifications. The Contract Time as defined in the Bid Proposal and other sections herein incorporates 40 Rain Days per calendar year or an average of 3.33 days per calendar month. The CONTRACTOR is required to keep record of all weather related delays and to submit the monthly count on each Pay Application. The Owner's Representative shall review and sign off on this record as a part of the Pay Application approval process every month. If, during preparation of the Balancing Change Order,the status of the work progress requires an extension of the Contract Time, Impact Days shall be added to the Completion Date equal to the total number of Weather or Impact Days approved less the original 40 days resident in the original Contract Time. The Addition of Weather or Impact Days will only alter the Contract Time when added by Change Order. If the Work is completed prior to the Completion Date,No Days will be added. The addition of Weather or Impact Days shall be the CONTRACTOR's sole remedy for delays to the completion of the Work and their addition to the Contract Time shall not affect the Contract Price through any "per diem" adjustment to the General Conditions costs, Temporary Facilities costs or any other costs associated with the extension of the Contract Time. 1.10.1.3 HINDRANCES AND DELAYS. In executing the Contract, the CONTRACTOR agrees that in undertaking to complete the Work within the time herein fixed, he has taken into consideration and made allowances for all 33 interference, disruption, hindrances and delays incident to such Work, whether growing out of delays in securing material, workmen or otherwise. No claim shall be made by the CONTRACTOR for damages, loss, costs or expense resulting from interference, disruption, hindrances or delays from any cause during the progress of any portion of the Work embraced in this Contract, except where the Work is stopped or suspended by order of the OWNER's representative and such stoppage or suspension is not attributable to any act or omission of CONTRACTOR. 1.10.1.4 SUSPENSION OF WORK. OWNER may, without cause, order the CONTRACTOR in writing to suspend the Work, in whole or in part, for such period of time as OWNER may request. The Contract Price and/or Contract Time shall be adjusted for any increase in the cost of or the time required for performance of the Work caused by such suspension. No adjustment shall be made to the extent performance was or would have been suspended by a cause for which CONTRACTOR is responsible, or to the extent an adjustment is made or denied under another provision of the Contract Documents. 1.10.1.5 CHANGE OF CONTRACT TIME: The Contract Time may only be changed by a Change Order. Any claim for an adjustment of Contract Time shall be based on written notice delivered by the party making such claim to the other party and to the Architect promptly, but in no event later than ten (10) days after the event-giving rise to the claim. Notice of the extent of the claim, along with supporting data, shall be delivered within thirty (30) days of the occurrence and shall be accompanied by the claimant's written representation that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in Contract Time shall be determined by the ARCHITECT in accordance with the requirements of this paragraph. Contractor shall submit, as a minimum, the following data: A. Information showing that the time requested is not included in the existing Contract and in addition to the Contract. B. Information documenting that the number of days requested is accurate for the event. C. Revised, current construction schedule showing that the time requested affects the project's critical path. 1.10.1.6 DELAYS BEYOND OWNER'S AND CONTRACTOR'S CONTROL: Where CONTRACTOR is prevented from completing any part of the Work within the Contract Time due to delays beyond the control of the OWNER and the CONTRACTOR, including, but not limited to, interference by utility owners or other contractors performing other work, Contractor shall be entitled to an extension of the Contract Time in an amount equal to the time lost. CONTRACTOR shall not be entitled to any increase in Contract Price as a result of such delays. IN NO EVENT SHALL OWNER BE LIABLE TO CONTRACTOR FOR DAMAGES ARISING OUT OF OR RESULTING FROM (i) Delays caused by, or within the control of, the CONTRACTOR, or (ii) Delays beyond the control of both parties including, but 34 not limited to, interference by utility owners or other contractors performing other Calk1 work, fires, floods, epidemics, abnormal weather conditions, acts of God, even if such delays are due in part to the negligence, other fault, breach of contract or warranty, violation of the Texas Deceptive Trade Act, or strict liability without regard to fault of OWNER. An extension of Contract time shall be CONTRACTOR's sole and exclusive remedy for any such delays. Delays attributed to, and within the control of, a Subcontractor or Supplier shall be deemed to be delays within the control of the CONTRACTOR. 1.11 Payments and Completion. 1.11.1 Contract Sum. 1.11.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the City to the Contractor for performance of the Work under the Contract Documents. 1.11.2 Schedule of Values. 1.11.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect a Schedule of Values fairly allocating the various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as reasonably required by the Architect. Once approved by the Architect and updated for changes in the Work, the Schedule of Values shall be used as a basis for reviewing the Contractor's Applications for Payment and is not to be taken as evidence of market or other value. The Schedule of Values shall not overvalue early job activities. The Contractor's Fee shall be shown as a single separate item. The Schedule of Values shall follow the trade divisions of the Specification so far as practicable. In order to facilitate the review of Applications for Payment,the Schedule of Values shall be submitted on forms approved by the Owner, and shall include the following: (a) Contractor's costs for Contractor's Fee, bonds and insurance,mobilization, etc., shall be listed as individual line items. (b) Contractor's costs for various construction items shall be detailed. For example, concrete work shall be subdivided into footings, grade beams, floor slabs, paving, etc. These subdivisions shall appear as individual line items. (c) On major subcontracts, such as mechanical, electrical and plumbing, the Schedule of Values shall indicate line items and amounts in detail (for example: underground,major equipment, fixtures, installation of fixtures, start t"'^'s up, etc.). (d) Costs for subcontract Work shall be listed without any 35 addition of Contractor's costs for overhead,profit or supervision. (e) Where payment for stored materials may be requested prior to installation,material and labor shall be listed as separate line items. (f) Sample pages from an approved Schedule of Values are included following this document. 1.11.3 Applications for Payment. 1.11.3.1 At the time specified in the Agreement, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the Schedule of Values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the City or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. Unless otherwise agreed, the Contractor shall submit requests for payment through the City's project management software (ProTrak) using the APPLICATION AND CERTIFICATE FOR PAYMENT; showing in detail the amounts requested, etc., as necessary. All blank spaces must be completed and the signatures of the Contractor shall signify his attestation that said Application for Payment is true, accurate and complete. By submitting its Application for Payment, the Contractor (lab‘ certifies that the individual signing the application is authorized to do so. Additionally, if the Contractor prepares its Application for Payment, any supplemental supporting documentation should be provided and uploaded through the ProTrak software. Applications for Payment may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier. 1.11.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the City, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the City's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. Applications for Payment shall separate references to any and all materials and/ or equipment that require separate payment for materials stored but not installed as individual line items. These items shall be specifically identified in the Original Schedule of Values as well as where this material or equipment will be incorporated into the Work. 1.11.3.3 Upon payment by the City of the invoiced cost, title to all such materials and equipment shall irrevocably pass to the City. The Contractor warrants that title to all materials and equipment covered by an Application for Payment will 36 pass to City upon the receipt of payment by the Contractor. Such title shall be free and clear of all liens, claims, security interests or encumbrances. No work, materials or equipment covered by an Application for Payment shall be subject to an agreement under which an interest is retained or encumbrance is attached by the seller, the Contractor, or other party. 1.11.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the City no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the City shall, to the best of the Contractor's knowledge, information and belief,be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors,material suppliers, or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. Each Application for Payment shall be accompanied by a signed and notarized Partial Release of Lien/All Bills Paid affidavit specifically covering the Work performed and any materials and equipment included and billed in the accompanying Application for Payment. 1.11.4 Certificates for Payment. 1.11.4.1 The Application for Payment will be reviewed first by the Architect who will certify to the City that portion, if any, of the Application for Payment it has determined is properly due. In the event that the Architect believes that payment should be withheld, in whole or in part, it will notify the City and Contractor of the basis of this view as provided in Subparagraph 1.11.5.1. 1.11.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the City, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the City to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 1.11.4.3 The issuance of a Certificate of Payment shall constitute a recommendation to the City in respect to the amount to be paid. This recommendation is not binding on the City if City knows of other reasons under the Contract why payment should be withheld. 37 1.11.4.4 The Architect will affix his signature to the same form described in Paragraph 1.11.4.1. to signify his certification of payment provided the application is otherwise satisfactory. 1.11.5 Decisions to Withhold Certification. 1.11.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the City, if in the Architect's opinion the representations to the City required by Paragraph 1.11.4.2. can not be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and City as provided in Paragraph 1.11.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the City. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued,to such extent as may be necessary in the Architect's opinion to protect the City from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Paragraph 1.5.5.2.,because of: (a) defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the City is provided by the Contractor; (c) failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; (d) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (e) damage to the City or another contractor; (f) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or (g) persistent failure to carry out the Work in accordance with the Contract Documents. 1.11.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. 1.11.6 Progress Payments. 1.11.6.1 After the Architect has issued a Certificate for Payment, the City shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. If the City believes the Contractor is not 38 current in its legitimate obligations to suppliers, laborers and/or Subcontractors on the e"" Project, City may(but is not obligated to)withhold payment until it receives partial or final releases, or other reasonable proof from the Contractor that this situation does not exist. 1.11.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the City, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub- subcontractors in a similar manner. City is not obligated to monitor payments to Subcontractors or Sub-subcontractors, and nothing in this paragraph shall create any right on the part of a Subcontractor or Sub-subcontractor against City. 1.11.6.3 Neither the City nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor or Sub-subcontractor. 1.11.6.4 Payment to material suppliers shall be treated in a manner similar to that provided in Paragraphs 1.11.6.2., 1.11.6.3. and 1.11.6.4. 1.11.6.5 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the City shall not constitute acceptance of Work not in accordance with the Contract Documents. 1.11.7 Failure of Payment. 1.11.7.1 If the City incurs any costs and expenses in curing any default of the Contractor or correcting defective Work, the City shall have an absolute right to offset such amount against the Contract Sum under this Contract, and may, in the City's sole discretion, elect either to: (1) deduct an amount equal to that to which the Owner is entitled, or (2) issue a written notice to the Contractor reducing the GMP by an amount equal to that to which the Owner is entitled. 1.11.8 Substantial Completion. 1.11.8.1 When the Contractor considers that the Work, or a portion thereof which the City agrees to accept separately, is substantially complete, the Architect and City shall review the punch list prepared by Contractor and supplement the list as necessary. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 1.11.8.1.1 The Contractor's superintendent shall participate in the preparation of the Contractor's punch list that is submitted to the Architect and City for supplementation. Upon receipt, the Architect shall perform a spot review to determine the adequacy and completeness of the Contractor's punch list. Should the Architect determine that the Contractor's punch list lacks sufficient detail or requires extensive supplementation,the punch list will be returned to the Contractor for further inspection and revision. The date of Substantial Completion will be delayed until the punch list submitted is a reasonable 39 representation of the work to be done. 'Ca‘; 1.11.8.1.2 Upon receipt of an acceptable Contractor's punch list, the Contractor's superintendent shall accompany the Architect, its Consultants and the City(at its discretion) during their inspections and the preparation of their supplements to the Contractor's punch list. The superintendent shall record or otherwise take note of all supplementary items. The Architect will endeavor to furnish to the Contractor typed, hand written or recorded supplements to the punch list in a prompt manner; however, any delay in the Contractor's receiving said supplements from the Architect shall not be cause for a claim for additional cost or extension of time. 1.11.8.2 When the Contractor notifies Architect that it has completed or corrected items on the punch list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item,whether or not included on the Contractor's punch list, which is not sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work or designated portion thereof for its intended use,the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. Any further inspections by the Architect for the purpose of determining the Project is Substantially Complete shall be at Contractor's cost and the City may deduct such cost from ,, ► any amount payable to Contractor hereunder. 1.11.8.3 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the City and Contractor for security, maintenance,heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 1.11.8.4 The Certificate of Substantial Completion shall be submitted to the City and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the City, in its sole discretion, may make payment of retainage, or a portion thereof as determined in the City's sole discretion, applying to such Work or designated portions thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. 1.11.8.5 Upon final completion of all remaining outstanding or incomplete work, identified in the Certificate of Substantial Completion, the Architect shall issue a Certificate of Final Completion and Acceptance. Upon such issuance, the y46l City shall release all remaining retainage, if any. 1.11.8.6 The Contractor shall keep all required insurance in full force, 40 and provide payment for all utilities, until the Certificate of Substantial Completion and Acceptance is issued, and all Work is accepted by the City in writing, regardless of the stated date of Substantial Completion. Such Acceptance shall not be unreasonably withheld. Contractor shall provide City a minimum of 3 days written notice of Contractor's planned utility contract termination date. 1.11.9 Partial Occupancy or Use. 1.11.9.1 The City may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Paragraph 1.13.3.1. and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the City and Contractor have accepted in writing the responsibilities assigned to each of them for payments,retainage,if any,security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. 1.11.9.2 Immediately prior to such partial occupancy or use, the City, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 1.11.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 1.11.10 Final Completion and Final Payment. 1.11.10.1 Upon City's receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a fmal Application for Payment,the Architect will promptly make such inspection and, when the Architect fmds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the fmal Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Paragraph 1.11.10.2. as precedent to the Contractor's being entitled to final payment have been fulfilled. Prior to fmal payment, the Contractor shall submit to the Architect the following completed forms: (a) Contractor's Affidavit of Payment of Debts and Claims; (b) Contractor's Affidavit of Release of Liens; 41 (c) Consent of Surety to Final Payment(if applicable); (d) Subcontractor's Unconditional Releases — each signed and notarized on a single piece of paper; (e) Maintenance and inspection manuals—three(3) sets of each bound in a 3 inch"D-slant"ring binder; (f) Final list of subcontractors;, (g) one (1) complete set of marked-up copies of the Drawings and Specifications accurately showing the Project as constructed. Such Specifications and Drawings shall be marked to show all changes and modifications that have been incorporated into the Work as performed; (h) other data establishing payment or satisfaction of obligations, such as receipts,releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City; and (i) any other"Closeout Documents"required under the Contract Documents. Documents identified as affidavits must be notarized. All manuals will contain an index listing the information submitted. The index sections will be divided and identified by tabbing each section as listed in the index. Upon request, the Architect will furnish the Contractor with blank copies of the forms listed above. Final payment, constituting the entire unpaid balance of the Contract Sum shall be paid by the City to the Contractor thirty(30) days after Substantial Completion of the Work, unless otherwise stipulated in the Certificate of Completion, provided the Contract is fully performed, and Final Certificate of Payment has been issued by the Architect. The City may accept certain portions of the Work as being complete prior to the acceptance of the entire Project. If certain areas are accepted by the City as being completed, and if the Contractor has completed all of the requirements for final payment of the portion of Work,.the City may, but is not required to, release retainage for that area/portion of Work. Amounts of retainage shall be agreed upon by both City and Contractor prior to final acceptance of these areas. 1.11.10.2 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the City shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 42 1.11.10.3 Acceptance of final payment by the Contractor shall constitute a waiver of claims by Contractor except for any Claims then pending that comply with the requirements of Paragraph 1.6.3. 1.12 Protection of Persons and Property. 1.12.1 Safety Precautions and Programs. 1.12.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all necessary safety precautions and programs in connection with the performance of the Contract. 1.12.2 Safety of Persons and Property. 1.12.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (a) employees on the Work and other persons who may be affected thereby including but not limited to the City's employees, invitees and the general public; (b) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and (c) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 1.12.2.2 The Contractor shall give notices and comply with applicable laws, ordinances,rules,regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. 1.12.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards,promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 1.12.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. When use or storage of explosives or other hazardous materials or equipment or unusual construction methods are necessary, the Contractor shall give the City and Architect reasonable advance notice of the presence or use of such materials, equipment or methods. 1.12.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Paragraphs 1.12.2.1(b). and 1.12.2.1.(c). caused in whole or in part 43 by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Paragraphs 1.12.2.1, except damage or loss attributable to acts or omissions of the City or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 1.5.19.6. 1.12.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. 1.12.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 1.12.2.8 Suspension of all or a portion of the Work,for any reason,shall not relieve the Contractor of its obligations under Paragraph 1.12.2. 1.12.2.9 The Contractor shall promptly report in writing to the City and Architect all accidents arising out of or in connection with the Work which cause death, personal injury, or property damage, giving full details and statement of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to City and Architect. 1.12.2.10 The Contractor shall be responsible for the protection and security of the Work and the Project,until it receives written notification that the Substantial Completion of the Work has been accepted by the City unless otherwise provided in the Certificate of Substantial Completion. 1.12.3 Hazardous Materials. 1.12.3.1 Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (as defined in 1.12.3.1.3.), except in accordance with applicable Environmental Laws. Further, in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of, the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 1.12.3.1.3). In the event Contractor engages in any of the activities prohibited in this Paragraph 1.12.3.1. to the fullest extent permitted by law, Contractor hereby indemnifies and holds City,Architect and all of their respective officers, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this Paragraph 1.12.3. 1.12.3.2 In the event Contractor encounters on the Project site any Hazardous Substance, or what Contractor may reasonably believe to be a Hazardous l Substance, and which is being introduced to the Work, or exists on the Project site, in a 44 manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City and Architect in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all of their respective officers,agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from Contractor's failure to stop the Work. 1.12.3.3 City and Contractor may enter into a separate agreement and/or Change Order for Contractor to remediate and/or render harmless pre-existing Hazardous Substances, but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless. Contractor shall be solely responsible for all costs of remediation associated with Hazardous Substances imported, with or without Owner's knowledge, to the work site by Contractor or any Subcontractor. 1.12.3.4 For purposes of this Agreement, the term "Hazardous Substance" shall mean and include any element constituent, chemical, substance, compound, or mixture, which are defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), The Resource Conservation and Recovery Act ("RCRA"), The Toxic Substances Control Act ("TSCA"), The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as "Environmental Laws"). It is the Contractor's responsibility to comply with Paragraph 1.12.3.1 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such amendments. 1.12.4 Emergencies. 1.12.4.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 1.6.3. and Paragraph 1.9. 1.13 Insurance and Bonds. 45 1.13.1 Contractor's Liability Insurance. 1.13.1.1 The Contractor shall purchase and maintain insurance as shown in ATTACHMENT 1, OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR and specific project related insurance requirements as noted in ATTACHMENT 2, SPECIAL CONDITIONS OF THE AGREEMENT. 1.13.2 Certificates of Insurance. 1.13.2.1 Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and must be provided in accordance with Section 1.13.1.1.1 and are attached as EXHIBIT A, Contractor's Insurance Certificates including Builder's Risk. 1.13.3 Property Insurance. 1.13.3.1 Partial occupancy or use in accordance with Paragraph 1.11.9. shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The City and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 1.13.3.2 Loss of Use Insurance. The City, at the City's option, may purchase and maintain such insurance as will insure the City against loss of use of the City's property due to fire or other hazards,however caused. 1.13.3.3 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the City shall, at City's option, include such insurance,and the cost thereof shall be charged to the Contractor by appropriate Change Order. 1.13.3.4 If during the Project construction period the City insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the City shall waive all rights for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 1.13.3.5 A loss insured under City's property insurance shall be adjusted by the City and made payable to the City for the insureds, as their interests may appear, subject to requirements of Paragraph 1.13.3. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. (15 1.13.3.6 If after such loss no other special agreement is made and unless the City terminates the Contract for convenience,replacement of damaged property shall be 46 performed by the Contractor after notification of a Change in the Work in accordance with Paragraph 1.9. 1.13.4 Performance Bond and Payment Bond. 1.13.4.1 Pursuant to Chapter 2253 of the Texas Government Code, for all public works contracts with governmental entities, performance and payment bonds are required when the Contract Amount exceeds $50,000. In the event a performance or payment bond or both is required either by law or in the City's discretion, such bonds shall be executed in accordance with all requirements of Article 7.19-1 of the Texas Insurance Code, all other applicable law, and the following: (a) The Contractor shall execute performance and payment bonds for the full Contract Amount in the forms attached hereto as Exhibit B and C. (b) The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds. (c) The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents, which are attached as Exhibit B and C, together with valid original t", powers of attorney, at the time of execution of this Agreement and prior to the commencement of Work. Copies of the executed bonds shall be attached hereto as Exhibit B and C. (d) The performance and payment bonds shall remain in effect for a period of one (1) year after Final Completion of the Work and shall be extended for any warranty work to cover the warranty period. (e) If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds,which bond or bonds shall assure performance or payment as required. 1.13.4.2 The Contractor may make such changes and alterations as the City may require in the Work or any part thereof without affecting the validity of this Agreement and any accompanying bond. If such changes or alterations diminish the quantity of the Work to be done,they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any Work already done or material already used in said Work, then the City shall compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. 1.14 Uncovering and Correction of Work. 1.14.1 Uncovering of Work. 47 1.14.1.1 If a portion of the Work is covered contrary to the Architect's request, required inspection, or contrary to requirements in the Contract Documents, the Work must, if required in writing by the Architect, be uncovered for the Architect's examination or inspection of the work and be replaced at the Contractor's expense without change in the Contract Time.' 1.14.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the City's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense. 1.14.2 Correction of Work. 1.14.2.1 Before or After Substantial Completion. 1.14.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. 1.14.2.2 After Substantial Completion. 1.14.2.2.1 In addition to the Contractor's obligations under Paragraph 1.5.7., if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Paragraph 1.11.9.1., or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the City to do so unless the City has previously given the Contractor a written acceptance of such particular condition. The City shall give such notice promptly after discovery of the condition. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the City or Architect, the City may correct it in accordance with Paragraph 1.4.5. The "prompt" correction of defective work by the Contractor after receipt of notification from the City as described above shall be defined as follows: (a) The Contractor shall make written response to the City within twenty-four(24)hours of receipt of the City's notice, acknowledging receipt of the notice and providing the proposed schedule to conduct corrective work. Corrective work shall not interfere with the City's normal operation and use of the Project,unless expressly approved by the City; 48 (b) For corrective work which is not a life safety issue or which will not, by the nature of the defect, cause subsequent damage to the Project, corrective work shall be completed within fourteen(14) calendar days; (c) For corrective work which by its nature may cause subsequent damage to the Project, corrective work required to prevent subsequent damage shall be completed within twenty-four (24) hours, and if such work is a temporary repair,permanent repair of the corrective work shall be completed within seven (7) calendar days. The Contractor shall also correct all subsequent damage caused by such corrective work; (d) For corrective work which affects services to, and ordinary use of the Project, corrective work shall be completed within twenty-four (24) hours, and if such work is a temporary repair, permanent repair of the corrective work shall be completed within seven(7) calendar days; and (e) The time frames stated above for completion of permanent corrective work shall be equitably adjusted as required for legitimate delays caused by weather delays, material acquisition and other factors beyond the Contractor's direct control. 1.14.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial CCompletion by the period of time between Substantial Completion and the actual performance of the Work. 1.14.2.2.3 These obligations under Subparagraph 1.14.2.2. shall survive acceptance of the Work under the Contract and termination of the Contract. The period for any Work corrected pursuant to Paragraph 1.14.2. shall be extended for a period of one year after the date said corrective work is completed. 1.14.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the City. 1.14.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 1.14.2.4.1 Where non-conforming Work is found, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits to the Architect's satisfaction. Additional testing, sampling, or inspecting needed to define nonconforming Work shall be at the lash Contractor's expense, and performed by the City's testing laboratory if such �_ services are reasonably required by the Architect. All corrected Work shall be retested at the Contractor's expense. Extra architectural or other services 49 required to analyze non-conforming Work shall be paid for by the Contractor. 1.14.2.5 Nothing contained in Paragraph 1.14.2. shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Nothing contained in Paragraph 1.14.2. is intended to limit or modify any obligations under the law or under the Contract Documents, including any warranty obligations, expressed or implied. 1.14.3 Acceptance of Nonconforming Work. 1.14.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the City may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as'appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. 1.15 Miscellaneous Provisions. 1.15.1 Governing Law. 1.15.1.1 This Contract and any disputes related to the Work shall be governed by the law of the State of Texas, and any disputes shall be resolved in Brazoria County, Texas. 1.15.2 Successors and Assigns. 1.15.2.1 The City and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Contractor shall not assign the Contract as a whole, or in part, without written consent of the City. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 1.15.3 Written Notice. 1.15.3.1 Written notice shall be deemed to have been served only if the writing is delivered to the addressees set out below, or to such other address as has been previously clearly identified in writing by the addressee, or if delivered by mail or in form of electronic transmission to that office,or sent by registered or certified mail to that address. City: City of Pearland 3519 Liberty Drive Pearland, Texas 77582 Attn: Engineering&Projects Contractor: Durotech, Inc. 11931 Wickchester, Suite 205 50 Houston,Texas 77043 (lah\ 1.15.4 Rights and Remedies. 1.15.4.1 No action or failure to act by the City, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 1.15.5 Tests and Inspections. 1.15.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at appropriate times. Unless otherwise provided,the Contractor shall make scheduling arrangements for such tests,inspections and approvals with an independent testing laboratory employed by the City for this purpose, or with the appropriate public authority. City shall bear the normal costs of these services, but not any excess costs attributable to Contractor-caused scheduling problems, or other Contractor error. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so the Architect may observe such procedures. 1.15.5.2 If the Architect, City or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Paragraph 1.15.5.1., the Architect will, upon written authorization from the City, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the City, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Paragraph 1.15.5.3., shall be at the City's expense. 1.15.5.3 If such procedures for testing, inspection or approval under Paragraphs 1.15.5.1 and 1.15.5.2. reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be kept and logged by the Contractor in ProTrak. All testing reports will be made available to all parties. 1.15.5.4 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. 1.15.5.5 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 1.16 Termination or Suspension of the Contract. 51 1.16.1 Termination by the Contractor. 1.16.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of ninety(90) consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: (a) issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; (b) an act of government, such as a declaration of national emergency which requires all Work to be stopped; or (c) because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Paragraph 1.11.4.1., or because the City has not made payment on a Certificate for Payment within the time stated in the Contract Documents, provided notice is given as required under Subparagraph 1.11.4.1. 1.16.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the City as described in Paragraph 1.16.3. constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365- day period,whichever is less. 1.16.1.3 If the Work is stopped for ninety(90)consecutive days for any reason described in Paragraph 1.16.1.1. or 1.16.1.2.,the Contractor may,upon fourteen(14) days' written notice to the City and Architect, terminate the Contract and recover from the City payment for Work. 1.16.1.4 Notwithstanding anything to the contrary contained herein or in the other Contract Documents, the City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination described in Subparagraphs 1.16.1.1., 1.16.1.2., and 1.16.1.3. 1.16.2 Termination by the Owner for Cause. 1.16.2.1 The City may terminate the Contract if the Contractor: (a) refuses or fails to supply enough properly skilled workers or proper materials; (b) fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; (c) disregards laws, ordinances, or rules, regulations or orders 52 of a public authority having jurisdiction; (d) otherwise is guilty of substantial breach of a provision of the Contract Documents; (e) fails to furnish the City, upon request, with assurances satisfactory to the City evidencing the Contractor's ability to complete the Work in compliance with all the requirements of the Contract Documents; (f) fails to proceed continuously and diligently with the construction and completion of the Work, except as permitted under the Contract Documents; or (g) fails to provide all required policies of insurance and/or bonds. 1.16.2.2 When any of the above reasons exist, the City may without prejudice to any other rights or remedies of the City and after giving the Contractor and the Contractor's surety, if any, seven days written notice of the specific default by Contractor and an opportunity to cure said default. If Contractor fails to cure default, after an additional seven day notice the Owner may terminate employment of the Contractor and may, subject to any prior rights of the surety: (a) take possession of the site and of all materials, equipment, tools,and construction equipment and machinery thereon owned by the Contractor; (b) accept assignment of subcontracts pursuant to Paragraph 1.7.4; (c) Make demand upon Contractor's surety to complete the Work; and (d) finish the Work by whatever reasonable method the City may deem expedient. 1.16.2.3 When the City terminates the Contract for one of the reasons stated in Paragraph 1.16.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. 1.16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the City and not expressly waived, including attorney's fees, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance,the Contractor shall pay the difference to the City. This obligation for payment shall survive termination of the Contract. 1.16.2.5 If a Performance Bond has been furnished and the Contractor is declared by the City to be in default under the Contract, the Surety shall promptly, in no event to exceed 30 days, remedy the default by commencing and continuing to perform the remaining work of the Contract in accordance with its terms and conditions, or by obtaining a bid or bids in accordance with its terms and conditions. At City's election, upon determination by the City and the Surety of the lowest responsible bidder, the Surety will complete the Work or will arrange for a Contract between such bidder and the City, and 53 make available sufficient funds to pay the cost of completion less the balance of the Contract Sum, but not exceeding the Penal Sum of the bond. The phrase "balance of the Contract Sum"as used herein shall mean the total amount payable by the City to the Contractor under the Contract, including any adjustments thereto made in accordance with the terms and conditions of this Contract, and amendments thereto less the amount previously paid by the City to the Contractor. 1.16.3 Suspension by the Owner for Convenience. 1.16.3.1 The City may, without cause, and with seven days written notice, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the City may determine. 1.16.3.2 If City suspends the Contractor's performance for convenience, an adjustment shall be made to the Contract Sum as calculated under Paragraph 1.9 and shall include profit.No adjustment shall be made to the extent: (a) that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or (b) that an equitable adjustment is made or denied under another provision of the Contract. 1.16.4 Termination by the Owner for Convenience. 1.16.4.1 The City may, at any time, terminate the Contract, in whole or in part, with seven days written notice, for the City's convenience and without cause. 1.16.4.2 Upon receipt of written notice from the City of such termination for the City's convenience,the Contractor shall: (a) cease operations as directed by the City in the notice; (b) take actions necessary, or that the City may direct, for the protection and preservation of the Work; and (c) except for Work not so terminated and/or directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 1.16.4.3 In the event of a termination under Paragraph 1.16.4, the Contractor shall be paid the value of its Work to the date of termination plus such sums as are reasonably required to cover the cost to Contractor, its Subcontractors and suppliers, to shut down the Project. City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination. 1.16.4.4 Upon determination by a court of competent jurisdiction that termination of the Contract, pursuant to Paragraph 1.16.2 was wrongful, such termination 54 will be deemed converted to a termination for convenience pursuant to Paragraph 1.16.4, and Contractor's remedy for wrongful termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph 1.16.4. END OF GENERAL PROVISIONS SECTION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Paragraph. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. If the City and Construction Manager agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. 2.1 Preconstruction Phase. 2.1.1 Preliminary Evaluation. The Construction Manager shall provide a preliminary evaluation of the City's program and Project budget requirements, each in terms of the other. 2.1.2 Consultation. The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the City. The Construction Manager shall consult with the City and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to construction cost, including estimates of alternative designs or materials, preliminary budgets and possible economies. 2.1.3 Preliminary Project Schedule. When Project requirements described in Paragraph 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the City's approval. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the City, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, City's occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the City and Architect. 2.1.4 Phased Construction. The Construction Manager shall make recommendations to the City and Architect regarding the phased issuance of 55 Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities. 2.1.4.1 Preliminary Cost Estimates. When the City has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare,for the review of the Architect and approval of the City, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. 2.1.4.1.1 When Schematic Design Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare, for the review of the Architect and approval of the City, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the City, Architect and Construction Manager. 3,,II 41,,fl,2 When Design Development Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Design Development Documents (DD's), the Construction Manager shall provide an initial cost estimate at 60% DD's and update and refine this 4106 estimate when the Construction Documents (CD's) are fifty percent (50%) complete and again at ninety percent (90%) complete, and at any other appropriate intervals agreed to by the City, Architect and Construction Manager necessary to develop a GMP for the project. These cost estimate updates shall incorporate the latest design changes, alternate materials and processes as required to provide a Guaranteed Maximum Price that will meet the Owners stated project budget. Should the estimates of cost of the work exceed the latest approved project budget the Construction Manager shall inform the Owner and Architect and make recommendations for corrective action. 2.1.4.2 Subcontractors and Suppliers. The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the City and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or City know of any objection to such subcontractor or supplier. The receipt of such list shall not require the City or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the City or Architect later to object to or reject any proposed subcontractor or supplier. ( 2.1.4.3 Long-Lead-Time Items. The Construction Manager shall recommend to the City and Architect a schedule for procurement of long-lead-time items which will constitute 56 part of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the City, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the City to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items. 2.1.4.4 Extent of Responsibility. The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the City and the City's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and City in writing. 2.1.4.5 Equal Employment Opportunity and Affirmative Action. The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. See attached Title VI Nondiscrimination Assurances attached hereto as ATTACHMENT 1 . 2.2 Guaranteed Maximum Price Proposal. 2.2.1 When the Drawings and Specifications are sufficiently complete, but in no case later than 90% Construction Documents, the Construction Manager shall propose a Guaranteed Maximum Price,which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee along with any identified Allowances as have been determined to be necessary. Provided, however, Construction Manager understands such estimates are relied upon by the City in making various Project determinations, and, therefore, should Construction Manager's Guaranteed Maximum Price proposal exceed the City's applicable budget by more than 2.5%, all pre-construction services rendered thereafter to render the Project within 2.5% of the budget by Construction Manager shall be at its cost. 2.2.2 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared,the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order. 2.2.3 The estimated Cost of the Work shall separately identify,the Construction Manager's Contingency, a sum not to exceed three percent(2.5%) of the Guaranteed Maximum Price, an amount established by the Owner for the Construction Manager's use, subject to Owner's approval, to cover costs arising under Paragraph 2.2.2 and other costs 57 which are properly reimbursable as Cost of the Work but not the basis for a Change Order. Upon Contractor's completion of the Project, all unused portions of the Construction Manager's Contingency and those from the Guaranteed Maximum Price shall be set aside as cost savings for the benefit of the Owner. 2.2.3.1.1 Basis of Guaranteed Maximum Price. The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis,which shall include: (a) A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. (b) A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. (c) The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. (d) The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. 2.2.3.2 The Construction Manager shall meet with the City and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the City or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. This proposal shall provide the Owner no less than ten days to accept the GMP without invalidating the proposal or any of its terms. 2.2.3.3 Unless the City accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. 2.2.3.4 Prior to the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the City may specifically authorize in writing. 2.2.3.5 Upon acceptance by the City of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contract Documents, and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents. 58 2.2.3.6 The City shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the City, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and City if such revised Drawings and Specifications are inconsistent with the agreed- upon assumptions and clarifications. 2.3 Construction Phase. 2.3.1 General. 2.3.1.1 The Construction Phase shall commence on: a) the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, and b) the City's first authorization to the Construction Manager to: 1. award a subcontract, or 2. undertake construction Work with the Construction Manager's own forces, or 3. issue a purchase order for materials or equipment required for the. Work. 2.4 Administration. 2.4.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids in accordance with the applicable requirements of Chapter 2269 of the Texas Government Code from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the City and Architect.The City will then determine,with the advice of the Construction Manager, which bids will be accepted. The City may designate specific persons or entities from whom the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the City may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. (16\ 2.4.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the 59 City and Architect (1) is recommended to the City by the Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the City requires that another bid be accepted, then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the City by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the City. 2.4.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Paragraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the City. 2.4.4 The Construction Manager shall schedule and conduct meetings with appropriate Subcontractors at which the City, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 2.4.5 Promptly after the City's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Paragraph 1.5.11, General Conditions, including the Owner's occupancy requirements. 2.4.6 The Construction Manager shall provide monthly written reports to the City and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the City may reasonably require. The log shall be available to the City and Architect. The Construction Manager shall promptly inform City in writing of any circumstance or development that is likely to delay Substantial Completion of the Project in accordance with the schedule. 2.4.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the City and Architect at regular intervals. 2.4.8 Professional Services. Paragraph 1.5.14.10, General Conditions shall apply to both the Preconstruction and Construction Phase. 2.4.9 Hazardous Materials. Paragraph 1.12.3, General Conditions shall apply to both the Preconstruction and Construction Phases. SECTION 3 OWNER'S RESPONSIBILITIES. 60 3.1 Information and Services. 3.1.1 The Owner shall provide information in a timely manner regarding the requirements of the Project, including a program which sets forth the City's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 3.1.2 The City shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the City. 3.1.3 Structural and Environmental Tests, Surveys and Reports. In the Preconstruction Phase, the City shall furnish the following with reasonable promptness and at the City's expense. Except to the extent that the Construction Manager knows of any inaccuracy, or should have reasonably discovered such error or inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Paragraphs 3.1.3.1 through 3.1.3.4 but shall exercise customary precautions relating to the performance of the Work. 3.1.3.1 Reports, surveys,drawings and tests concerning the conditions of the site which are required by law. 3.1.3.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. 3.1.3.3 The services of a geotechnical engineer when such services are requested by the Construction Manager and are reasonably required by the scope of the Project, as determined by the City or Architect. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. 3.1.3.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. 3.1.3.5 The services of other consultants when such services are reasonably required by the scope of the Project, as determined by the City or Architect, and are requested by the Construction Manager. 3.2 Owner's Designated Representative. The City shall designate in writing City's Representative who shall have express authority, subject to the limitations set forth in the General Conditions, to bind the City with respect to all matters requiring 61 the City's approval or authorization. This City's Representative shall have the authority to make decisions on behalf of the City concerning estimates and schedules, construction budgets, and changes in the Work, and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in Paragraph 1.6.2.1, General Conditions,the Architect does not have such authority. 3.3 Architect. The City shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services. The City must authorize, in writing, and cause the Architect to provide additional service, requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Construction Manager has no authority to request services from the Architect on the City's behalf. Such services shall be provided in accordance with time schedules agreed to by the City, Architect and Construction Manager. Upon request of the Construction Manager, the City shall furnish to the Construction Manager a copy of the City's Agreement with the Architect. SECTION 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES. The City shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: 4.1 Compensation. 4.1.1For the services described in Paragraphs 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: Pre-Construction Fee: $10,000.00 (Ten Thousand and No/ 100s) 4.1.1 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations,pensions and similar contributions and benefits. 4.2 Payments. 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. 4.2.2 Payments are due and payable thirty(30) calendar days from the date the correct and approved Construction Manager's invoice is received by the Owner. 62 4.2.3 The City stipulates that it is an exempt organization as defined by the Limited Sales, Excise and Use Tax Act and, as such, is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Construction Manager shall issue exemption certificates to its Subcontractors and suppliers in lieu of said sales tax for all such materials and supplies, complying with all applicable State Comptroller's Rulings. SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The City shall compensate the Construction Manager for Construction Phase services as follows: General Conditions: $427,914.00 Four Hundred Twenty Seven Thousand Nine Hundred Fourteen Dollars and No/100s 5.1 Compensation. 5.1.1For the Construction Manager's performance of the Work as described in Paragraph 2.3, the City shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Paragraph 7 and the Construction Manager's Fee determined as follows: Construction Manager At Risk Fee (as a Percentage): 2.85% 5.2 Guaranteed Maximum Price. 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee for the Work are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. 1, subject to additions and deductions by changes in the Work as provided in the Contract Documents. Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the City. In the event the Cost of Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price ("GMP"), the savings shall accrue one hundred percent(100%)to the City. 5.3 Changes in the Work. 5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. 1 may be determined by any of the methods listed in Paragraph 1.9.2.2, General Conditions, subject to the limitations provided in the General Conditions. 5.3.1.1 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Paragraph 1.9.2.2 (c), General Conditions and the term "costs" as 63 used in Paragraph 1.9.3.6, General Conditions shall have the meanings assigned to them in the General Conditions and shall not be modified by this Paragraph 5. Adjustments to subcontracts awarded with the City's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. 5.3.1.2 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work as defined in Paragraph 6 of this Agreement, and the term "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Paragraph 5.1.1 of this Agreement. 5.3.1.3 If no specific provision is made in Paragraph 5.1.1 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of Paragraph 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. SECTION 6 COST OF THE WORK FOR CONSTRUCTION PHASE. 6.1 Costs To Be Reimbursed. 6.1.1The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the City. The Cost of the Work shall include only the items set forth in this Paragraph 6. 6.1.1.1 Labor Costs. 6.1.1.1.1 Wage Rates. Pursuant to Section 2258.023(a) of the Texas Government Code, wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as ATTACHMENT 3. 6.1.1.1.2 Statutory Penalty. Pursuant to Section 2258.023(b) of the Texas Government Code, if the Contractor or any subcontractor violates the requirements of this section the Contractor or subcontractor as the case may be shall pay the City Sixty Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates. 6.1.1.1.3 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement, at off-site workshops. 6.1.1.1.4 Wages or salaries of the Construction Manager's supervisory 64 and administrative personnel when stationed at the site with the Owner's agreement. See attached Position/Rate table No. Description Rate 1 Project Executive $115.00 per hour 2 Project Manager $74.00 per hour 3 Estimator $98.00 per hour 4 Safety/Field Operation $96.00 per hour Manager 5 Lead Superintendent $65.00 per hour 6 Assistant Superintendent $46.00 per hour 7 Project Engineer $41.00 per hour 8 Quality Control Inspector $68.00 per hour 9 Contract Administrator $33.00 per hour 10 BIM Coordinator $55.00 per hour 11 IT Coordinator $95.00 per hour 12 Labor Burden 42.5 % 6.1.1.1.5 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. Further, the time for performance does not necessitate overtime work and the City shall not be required to reimburse the "premium time" portion of any overtime payments by Contractor, unless otherwise approved, in writing, in advance by the City. 6.1.1.1.6 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave,medical and health benefits,holidays,vacations and pensions,provided that such costs are based on wages and salaries included in the Cost of the Work under Paragraphs 6.1.1.1.1 through 6.1.1.1.4. 65 6.1.1.1.7 Subcontract Costs. Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. 6.1.1.1.8 Costs of Materials and Equipment Incorporated in the Completed Construction. (a) Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. (b) Costs of materials described in the preceding Paragraph 6.1.4.(a) in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to the City at the completion of the Work or, at the City's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the City as a deduction from the Cost of the Work. 6.1.1.1.9 Costs of Other Materials and Equipment, Temporary Facilities and Related Items. (a) Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. (b) Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site, whether rented from the Construction Manager or others, and costs of transportation, installation,minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. (c) Costs of removal of debris from the site. (d) Reproduction costs, costs of telegrams, facsimile transmissions and long-distance telephone calls, postage and express delivery charges,telephone at the site and reasonable petty cash expenses of the site office. (e) That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. 66 6.1.1.1.10 Miscellaneous Costs. (a) That portion directly attributable to this Contract of premiums for insurance and bonds. (b) Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. (c) Fees of testing laboratories for tests required by the Contract Documents, except those related to nonconforming Work other than that for which payment is permitted by Paragraph 6.1.8. (d) Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the City's consent; provided, however, that such costs of legal defenses, judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Paragraph 1.5.19.1, General Conditions or other provisions of the Contract Documents. (e) Data processing costs related to the Work. (f) Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the City set forth in this Agreement. 6.1.1.1.11 Other Costs. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City. The costs described in Paragraphs 6.1.1.1 through 6.1.1.11 shall be included in the Cost of the Work notwithstanding any provision of General Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Paragraph 6.2. 6.2 Costs Not To Be Reimbursed. 6.2.1.1 The Cost of the Work shall not include: (a) Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Paragraphs 6.1.2.1 and 6.1.2.2. 67 (b) Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Paragraph 6.1. (c) Overhead and general expenses, except as may be expressly included in Paragraph 6.1. (d) The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. (e) Rental costs of machinery and equipment, except as specifically provided in Paragraph 6.1.5(b). (f) Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the City set forth in this Agreement. (g) Costs incurred in the performance of Preconstruction Phase Services. (h) Except as provided in Paragraph 6.1.7, any cost not specifically and expressly described in Paragraph 6.1. (i) Costs which would cause the Guaranteed Maximum Price to be exceeded. 6.3 Discounts,Rebates and Refunds. 6.3.1.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the City if(1) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the City, or (2) the City has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the City, and the Construction Manager shall make provisions so that they can be secured. 6.3.1.2 Amounts which accrue to the City in accordance with the provisions of Paragraph 6.3.1 shall be credited to the City as a deduction from the Cost of the Work. 6.4 Accounting Records. 6.4.1.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper fmancial management under this Contract; the accounting and control systems shall be satisfactory to the City. The City and the City's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. SECTION 7 PAYMENT. 68 7.1 Progress Payments. 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager, in a form acceptable to City and the Architect, and Certificates for Payment issued by the Architect, the City shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. 7.1.1.1 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. 7.1.1.2 Provided an Application for Payment is received by the Architect not later than the 30th day of a month, the City shall make payment to the Construction Manager not later than the 30th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the City not later than thirty(30) days after the Architect receives the Application for Payment. 7.1.1.3 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts,receipted invoices or invoices with check vouchers attached and any other evidence required by the City or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the'Cost of the Work equal or exceed (1)progress payments already received by the Construction Manager;less(2)that portion of those payments attributable to the Construction Manager's Fee;plus (3)payrolls for the period covered by the present Application for Payment. ' 7.1.1.4 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the City and Architect may require. This schedule,unless objected to by the City or Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.1.5 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of(1)the percentage of that portion of the Work which has actually been completed or(2)the percentage obtained by dividing (a)the expense which has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. 7.1.1.6 Subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: (a) Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum 69 Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the City of changes in the Work, amounts not in dispute may be included as provided in Paragraph 1.9.3.7, General Conditions, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. (b) Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the City, suitably stored off the site at a location agreed upon in writing. (c) Add the Construction Manager's Fee, less retainage of: (i) ten percent (10%) where the GMP is less than $400,000; or (ii) five percent (5%) where the GMP is $400,000 or more. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Paragraphs at the rate stated in Paragraph 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Paragraphs bears to a reasonable estimate of the probable Cost of the Work upon its completion. (d) Subtract the aggregate of previous payments made by the City. (e) Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Paragraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the City's accountants in such documentation. (f) Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph 1.11.5, General Conditions. 7.1.1.7 Except with the City's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent(5%). The City and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.1.8 Except with the City's prior approval,the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 7.1.1.9 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Paragraph 7.1.4 or other supporting data, that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid CI"! on account of the Contract. Such examinations, audits and verifications, if required by the City, will be performed by the City's accountants acting in the sole interest of the City. 70 7.1.2 Final Payment. 7.1.2.1 Final payment shall be made by the City to the Construction Manager when (1) the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct punch list items or nonconforming Work, as provided in Paragraph 1.14.2.2, General Conditions, and to satisfy other requirements, if any, which necessarily survive final payment; (2) a fmal Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the City's accountants; and (3) a final Certificate for Payment has then been issued by the Architect; such fmal payment shall be made by the City not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: 7.1.2.2 The amount of the final payment shall be calculated as follows: (a) Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. (b) Subtract amounts, if any, for which the Architect withholds or the City is entitled to withhold under this Agreement, in whole or in part, a final Certificate for Payment as provided in Paragraph 1.11.5.1, General Conditions or other provisions of the Contract Documents. (c) Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. 7.1.2.3 The City's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager, together with all backup documentation reasonably required by the City. Based upon such Cost of the Work as the City's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Paragraph 7.2.1 have been met,the Architect will,within seven days after receipt of the written report of the Owner's accountants, either issue to the City a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Paragraph 1.11.5.1, General Conditions. The time periods stated in this Paragraph 7.2 supersede those stated in Paragraph 1.11.4.1, General Conditions. 7.1.2.4 If the City's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Paragraph 8 without a 71 further decision of the Architect. Unless agreed to otherwise, a demand for mediation of the disputed amount shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this 30-day period shall result in the substantiated amount reported by the City's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the City shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. 7.1.2.5 If, subsequent to final payment and at the City's request,the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (1)to correct nonconforming Work or (2) arising from the resolution of disputes, the City shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any, related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings,the amount of such savings shall be recalculated and appropriate credit given to the City in determining the net amount to be paid by the City to the Construction Manager. SECTION 8 MISCELLANEOUS PROVISIONS! 8.1 Dispute Resolution. 8.1.1 During both the Preconstruction and Construction Phases, claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Paragraph 1.6.3., General Conditions, except that, during the Preconstruction Phase, no decision ("I'', by the Architect shall be a condition precedent to mediation. 8.2 Other Provisions. 8.2.1.1 Extent of Contract. This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the City and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the City and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 8.2.1.2 Ownership and Use of Documents. Paragraph 1.3.4, General Conditions, shall apply to both the Preconstruction and Construction Phases. 8.2.1.3 Governing Law. The Contract shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazoria County, Texas, United States of America. 8.2.1.4 Assignment. The City and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the ,�r�► Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain 72 legally responsible for all obligations under the Contract. SECTION 9 TERMINATION OR SUSPENSION. 9.1Termination Prior To Establishing Guaranteed Maximum Price. 9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price,the City may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Paragraph 1.16.1.1, General Conditions. 9.1.1.1 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 prior to commencement of the Construction Phase,the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Paragraph 4.1.1. 9.1.1.2 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 after commencement of the Construction Phase,the Construction Manager shall be paid , in addition to the compensation provided in Paragraph 9.1.2, an amount calculated as follows: (a) Take the Cost of the Work incurred by the Construction Manager. (b) Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Paragraph 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. (c) Subtract the aggregate of previous payments made by the City on account of the Construction Phase. The City shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the City, for any equipment owned by the Construction Manager which the City elects to retain and which is not otherwise included in the Cost of the Work under Paragraph 9.1.3.(a). To the extent that the City elects to take legal assignment of subcontracts and purchase orders (including rental agreements),the Construction Manager shall, as a condition of receiving the payments referred to in Paragraph 9, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the City may require for the purpose of fully vesting in the City the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the City's written approval prior to the execution of Amendment No. 1 shall 73 contain provisions permitting assignment to the City as described above. If the City accepts such assignment, the City shall reimburse the Construction Manager with respect to all valid and properly payable costs arising under the subcontract, purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated. If the City elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the City shall pay the Construction Manager the costs necessarily and reasonably incurred by the Construction Manager by reason of such termination, but in no event to include any overhead or profit on work not performed. 9.1.2 Termination Subsequent to Establishing Guaranteed Maximum Price. Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Paragraph 1.16, General Conditions. 9.1.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Paragraphs 9.1.2 and 9.1.3 of this Agreement. 9.2.2 In the event of such termination by the Construction Manager,the amount to be paid to the Construction Manager under Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive under Paragraphs 9.1.2 and 9.1.3 above. In no event shall Construction Manager nor any supplier or subcontractor be entitled to any fee or lost profits for work not performed. 9.3 Suspension. The Work may be suspended by the City as provided in Paragraph 1.16, General Conditions; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Paragraph 1.16.3.2, General Conditions, except that the term "cost of performance of the Contract"in that Paragraph shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager's Fee as described in Paragraphs 5.1.1 and 5.3.4 of this Agreement. SECTION 10 OTHER CONDITIONS AND SERVICES. 10.1 Construction Manager represents to the City that it has, and will keep in effect at all times during the term of this Contract, any licenses, permits, and approvals which are legally required for the Construction Manager to practice its trade. 10.1.1 Authority to do business. The Construction Manager represents that it has a certificate of authority authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this Contract. 10.1.2 Authority to Contract. Each party has the full power and authority to enter into _r_ and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective 74 corporations. 10.1.3 Severability. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid,illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision herein and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 10.1.4 Presumption Against Waiver. No waiver by either party hereto of any one or more defaults by the other party hereto in the performance of this Contract shall be construed as a waiver of any future defaults whether of a like or different character. 10.1.5 Owner's Reserved Rights. The City shall have the rights by its officers, employees or agents to examine and inspect the Construction Manager's Work at any time to verify Construction Manager's compliance with the terms of this Contract. Any approval by City or acceptance of Construction Manager's Work shall not waive any obligation of Construction Manager to correct defective work. 10.1.6 Benefit. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns where permitted by Contract. Nothing in this Paragraph shall be construed to waive the conditions elsewhere contained in this Contract applicable to assignment by the Construction Manager. Nothing contained in this Contract shall be construed to confer any benefit upon any subcontractor or any other third party. 10.1.7 Headings, Gender, Number. The headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa,unless the context requires otherwise. 10.1.8 Agreement Read. The parties acknowledge that they have had opportunity to consult with counsel of their choice, have read, understand and intend to be bound by the terms and conditions of this Agreement. 10.1.9 Liquidated Damages. The amount of liquidated damages for the Construction Manager's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Construction Manager because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. As a result of the difficulty in estimation, calculation and ascertainment of City's damages due to a failure of Construction Manager to achieve timely completion of the Work, if the Construction Manager should neglect, fail, or refuse to either Substantially Complete or Finally Complete the Work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of the Contract Documents,then the Construction Manager does hereby agree as part of the consideration for the awarding of this Agreement that the Owner ra.\' may permanently withhold from the Construction Manager's total compensation the sum of 75 One Thousand Five Hundred and no /100 DOLLARS ($ 1,500.00) for each and every calendar 'Ciaa' day that the Construction Manager shall be in default after the time stipulated for Substantial Completion not as a penalty, but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 10.1.10Fina1 Completion. Contractor shall achieve Final Completion within 30 calendar days of the date of Substantial Completion, failing which, Contractor shall provide a full time on site superintendent until Final Completion at its own cost and not as a cost of the Work. 10.1.11 Verification No Boycott Israel. To the extent this Contract is considered a contract for goods or services subject to § 2270.002 Texas Government Code, Contractor verifies that it i) does not boycott Israel; and ii) will not boycott Israel during the term of this Contract. List of ATTACHMENTS 1 Owner's Insurance Requirements of Contractor 2 Special Conditions of the Contract 3 Wage Rate finding for Building Construction In Brazoria County 4 Appendix A Title VI Assurances List of Exhibits A Contractor's Insurance Certificates B Performance Bond C Payment Bond DU►. : ' CH,IN CITY OF PEARLAND A ` B �� B Printed Name: `)PA. ) 1 (AJ-L ( K5) City M ager: rev.t rsev. Title: C, fl Date: Date:T (` I�t�V- 2t p 1% APPROVED: APPROVED: Notary: City Secretary :_ CrcMil CY• -V3JJ ) Date: zo4`Y°,aF CAROL L.WELLS �� :*= My Notary ID#128952025 ' -'re................ Expires April 11,2020 ?POSE i'd. CZ I- 76 CITY OF PEARLAND STANDARD FORM OF AGREEMENT APPENDIX B House Bill 89 Verification I David Rowe (Person name), the undersigned representative (hereafter referred to as "Representative") of Durotech Inc. (company or business name, hereafter referred to as "Business Entity"), being an adult over the age of eighteen (18)years of age, after being duly sworn by the undersigned notary, do hereby depose and affirm the following: 1. That Representative is authorized to execute this verification on behalf of Business Entity; 2. That Business Entity does not boycott Israel and will not boycott Israel during the term of any contract that will be entered into between Business Entity and the City of Pearland; and 3. That Representative understands that the term "boycott Israel" is defined by Texas Government Code Section 2270.001 to mean refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes. As Ai WO SIGNATURE OF REPRESENTATIVE SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this 26th day of October , 2018 . (--- 1 lai.A.A0 Nota Public "4'4'�; REBECCAJ.MEADOWS � *' MY COMMISSION EXPIRES t i,4,.,�'` September 17,2019 F . CERTIFICATE OF INTERESTED PARTIES FORM 1295 1of1 \ Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2018-419337 Durotech Houston,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 10/26/2018 being filed. City of Pearland Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. RFP No.0718-54 Fire Station 8 Project No.FA1501-Preconstruction&Construction Services 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary Rowe, David Houston,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION My name is David Rowe , and my date of birth is November 3. 1961 My address is 11931 Wickchester Lane,Suite 205 Houston , Texas , 77043 , USA . (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in Harris County, fa"I' of Texas on the 26th day of October ,2018 (month) (year) ignature of authorized agent of contracting business entity (Declarant) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.6711 ATTACHMENT 1 OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR 1. Definitions. For purposes of this Agreement: 1.1 Owner Parties. "Owner Parties" means (a) the City of Pearland, its successors and assigns, and the Engineer, (b) any officers, employees, or agents of such persons or entities, and (c) others as required by the Contract Documents, if any. 1.2 Contractor. "Contractor" shall mean the vendor providing the service or work to be performed under this Agreement. 1.3 Subcontractor. "Subcontractor" shall include subcontractors of any tier. 1.4 ISO. "ISO"means Insurance Services Office. 2. Contractor Insurance Representations to Owner Parties 2.1 It is expressly understood and agreed that the insurance coverages required herein: 2.1.1 represent Owner Parties' minimum requirements and are not to be construed to void or limit the Contractor's indemnity obligations as contained in this Agreement nor represent in any manner a determination of the insurance coverages the Contractor should or should not maintain for its own protection; and 2.1.2 are being, or have been, obtained by the Contractor in support of the Contractor's liability and indemnity obligations under this Agreement. Neither the requirements as to insurance to be carried as provided for herein, the insolvency, bankruptcy or failure of any insurance company carrying insurance of the Contractor, nor the failure of any insurance company to pay claims accruing, shall be held to affect, negate or waive any of the provisions of this Agreement. 2.2 Failure to obtain and maintain the required insurance shall constitute a material breach of, and default under, this Agreement. If the Contractor shall fail to remedy such breach within five (5) business days after notice by the Owner, the Contractor will be liable for any and all costs, liabilities, damages and penalties resulting to the Owner Parties from such breach, unless a written waiver of the specific insurance requirement(s) is provided to the Contractor by the Owner. In the event of any failure by the Contractor to comply with the provisions of this Agreement, the Owner may, without in any way compromising or waiving any right or remedy at law or in equity, on notice to the Contractor, purchase such insurance, at the Contractor's expense, provided that the Owner shall have no obligation to do so and if the Owner shall do so, the Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. 10-2012 00700-Cl 3. Conditions Affecting All Insurance Required Herein 3.1 Cost of Insurance. All insurance coverage shall be provided at the Contractor's sole expense. 3.2 Status and Rating of Insurance Company. All insurance coverage shall be written through insurance companies authorized to do business in the state in which the work is to be performed and rated no less than A-: VII in the most current edition of A. M. Best's Key Rating Guide. 3.3 Restrictive, Limiting, or Exclusionary Endorsements. All insurance coverage shall be provided to the Owner Parties in compliance with the requirements herein and shall contain no endorsements that restrict, limit, or exclude coverage required herein in any manner without the prior express written approval of the Owner. 3.4 Limits of Liability. The limits of liability may be provided by a single policy of insurance or by a combination of primary and umbrella policies, but in no event shall the total limits of liability available for any one occurrence or accident be less than the amount required herein. 3.5 Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage. All insurance coverage shall contain the following express provision: In the event of cancellation, non-renewal, or material reduction in coverage affecting the certificate holder, thirty (30) days prior written notice shall be given to the certificate holder by certified mail or registered mail, return receipt requested. 3.6 Waiver of Subrogation. The Contractor hereby agrees to waive its rights of recovery from the Owner Parties with regard to all causes of property and/or liability loss and shall cause a waiver of subrogation endorsement to be provided in favor of the Owner Parties on all insurance coverage carried by the Contractor, whether required herein or not. 3.7 Deductible/Retention. Except as otherwise specified herein, no insurance required herein shall contain a deductible or self-insured retention in excess of $25,000 without prior written approval of the Owner. All deductibles and/or retentions shall be paid by, assumed by, for the account of, and at the Contractor's sole risk. The Contractor shall not be reimbursed for same. 4. Maintenance of Insurance. The following insurance shall be maintained in effect with limits not less than those set forth below at all times during the term of this Agreement and thereafter as required: 4.1 Commercial General Liability Insurance 4.1.1 Coverage. Such insurance shall cover liability arising out of all locations (111 and operations of the Contractor, including but not limited to liability assumed under this contract (including the tort liability of another assumed 10-2012 00700-C2 in a business contract). Defense shall be provided as an additional benefit and not included within the limit of liability. 4.1.2 Form. Commercial General Liability Occurrence form (at least as broad as an unmodified ISO CG 0001 0798 or its equivalent). 4.1.3 Amount of Insurance. Coverage shall be provided with limits of not less than: Each Occurrence Limit $1,000,000 General Aggregate Limit $2,000,000 Product-Completed Operations Aggregate Limit $2,000,000 Personal and Advertising Injury Limit $1,000,000 4.1.4 Required Endorsements a. Additional Insured. Additional insured status shall be provided in favor of the Owner Parties on any of the following: i. ISO form CG 20 10 11 85; or ii. ISO form CG 20 26 11 85; or iii. a combination of ISO forms CG 20 33 10 01 and CG 20 37 10 01; or iv. any form providing equivalent protection to Owner.(111 b. Designated Construction Project(s) Aggregate Limit. The aggregate limit shall apply separately to this Agreement through use of an ISO CG 25 03 03 97 endorsement or its equivalent. c. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. d. Personal Injury Liability. The personal injury contractual liability exclusion shall be deleted. e. Primary and Non-Contributing Liability. It is the intent of the parties to this Agreement that all insurance required herein shall be primary to all insurance available to the Owner Parties. The obligations of the Contractor's insurance shall not be affected by any other insurance available to the Owner Parties and shall seek no contribution from the Owner Parties' insurance, whether primary, excess contingent, or on any other basis. The Contractor's insurance coverage shall be endorsed to provide such primary and non- contributing liability. f. Waiver of Subrogation, as required in 3.6, above. 4.1.5 Continuing Commercial General Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. eimb' The Contractor shall provide written representation to Owner stating Work completion date. 10-2012 00700-C3 4.2 Auto Liability Insurance 4.2.1 Coverage. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned). 4.2.2 Form. Business Auto form (at least as broad as an unmodified ISO CA 0001 or its equivalent). 4.2.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$1,000,000. 4.2.4 Required Endorsements a. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.3 Employer's Liability Insurance 4.3.1 Coverage. Employer's Liability Insurance shall be provided as follows: 4.3.2 Amount of Insurance. Coverage shall be provided with a limit of not less than: Employer's Liability: $1,000,000 each accident and each disease. 4.3.3 Required Endorsements a. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.4 Umbrella Liability Insurance 4.4.1 Coverage. Such insurance shall be excess over and be no less broad than all coverages described above and shall include a drop-down provision for exhaustion of underlying limits. 4.4.2 Form. This policy shall have the same inception and expiration dates as the commercial general liability insurance required above. 4.4.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$5,000,000. 4.4.4 Continuing Umbrella Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 10-2012 00700-C4 4.5 Professional Liability Insurance 4.5.1 Coverage. The Contractor shall provide professional liability insurance for any professional design or engineering drawing required by the work. Such insurance shall indemnify the Owner from claims arising from the negligent performance of professional services of any type, including but not limited to design or design/build services as part of the Work to be performed. 4.5.2 Form. This insurance shall include prior acts coverage sufficient to cover all services rendered by the Contractor and by its consultants under this Agreement. It is recognized that this coverage may be provided on a Claims-Made basis. 4.5.3 Amount of Insurance. Coverage shall be provided with a limit of not less than $1,000,000. 4.5.4 Continuing Professional Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 4.6 Builder's Risk 4.6.1 Insureds. Insureds shall include: a. Owner, General Contactor and all Loss Payees and Mortgagees as Named Insureds; and b. subcontractors of all tiers in the Work as Additional Insureds. 4.6.2 Covered Property. Such insurance shall cover: a. all structure(s) under construction, including retaining walls, paved surfaces and roadways, bridges, glass, foundation(s), footings, underground pipes and wiring, excavations, grading, backfilling or filling; b. all temporary structures (e.g., fencing, scaffolding, cribbing, false work, forms, site lighting, temporary utilities and buildings) located at the site; c. all property including materials and supplies on site for installation; d. all property including materials and supplies at other locations but intended for use at the site; e. all property including materials and supplies in transit to the site for installation by all means of transportation other than ocean transit; and f. other Work at the site identified in the Agreement to which this Exhibit is attached. 10-2012 00700-C5 Form a. Coverage shall be at least as broad as an unmodified ISO Special form, shall be provided on a completed-value basis, and shall be primary to any other coverage insurance available to the insured parties, with that other insurance being excess, secondary and non- contributing. b. No protective safeguard warranty shall be permitted. c. Required coverage shall further include: i. Additional expenses due to delay in $ TBD completion of project(where applicable) ii. Agreed value Included without sublimit iii. Damage arising from error, omission or Included without sublimit deficiency in construction methods, design, specifications, workmanship or materials, including collapse iv. Debris removal additional limit 25% of direct damage loss v. Earthquake (where applicable) $ TBD vi. Earthquake sprinkler leakage (where $ TBD applicable) vii. Expediting expenses $ TBD viii. Flood (where applicable) $ TBD ix. Freezing Included without sublimit x. Mechanical breakdown, including hot& Included without sublimit cold testing (where applicable) xi. Notice of cancellation, non-renewal or Included material reduction—60 days prior written notice to each insured xii. Occupancy clause, as required in F, Included below xiii. Ordinance or law Included without sublimit xiv. Pollutant clean-up and removal $ TBD xv. Preservation of property Included without sublimit xvi. Replacement cost Included xvii. Theft Included without sublimit xviii. Waiver of subrogation as required in G, Included below. 4.6.3 Amount of Insurance. Coverage shall be provided in an amount equal at all times to the full replacement value and cost of debris removal for any single occurrence. 10-2012 00700-C6 4.6.4 Deductibles. Deductibles shall not exceed the following: , a. All Risks of Direct Damage, Per $5,000 Occurrence, except b. Delayed Opening Waiting Period 5 Days c. Flood, Per Occurrence $25,000 or excess of NFIP if in Flood Zone A, B or V d. Earthquake and Earthquake Sprinkler $25,000 Leakage, Per Occurrence 4.6.5 Termination of Coverage. The termination of coverage provision shall be endorsed to permit occupancy of the covered property being constructed so long as such occupancy does not exceed 20% of the usable area of the property. This insurance shall be maintained in effect, unless otherwise provided for in the Contract Documents, until the earliest of the following dates: a. the date on which all persons and organizations who are insureds under the policy agree that it shall be terminated; b. the date on which final payment, as provided for in the Agreement to which this Exhibit is attached, has been made; or c. the date on which the insurable interests in the Covered Property of all insureds other than Contractor have ceased. 4.6.6 Waiver of Subrogation. The waiver of subrogation provision shall be endorsed as follows: a. A waiver of subrogation shall be provided in favor of all insureds. b. The waiver of subrogation provisions shall be endorsed as follows: Should a covered loss be subrogated, either in whole or in part, your rights to any recovery will come first, and we will be entitled to a recovery only after you have been fully compensated for the loss. 5. Intentionally left blank. 6. Evidence of Insurance 6.1 Provision of Evidence. Evidence of the insurance coverage required to be maintained by the Contractor, represented by certificates of insurance, evidence of insurance, and endorsements issued by the insurance company or its legal agent, and must be furnished to the Owner prior to commencement of Work and not later than fifteen (15) days after receipt of this Agreement. New certificates of insurance, evidence of insurance, and endorsements shall be provided to the Owner prior to the termination date of the current certificates of insurance, evidence of insurance, and endorsements. 10-2012 00700-C7 6.2 Form 6.2.1 All property insurance required herein shall be evidenced by ACORD form 28, "Evidence of Property Insurance". 6.2.2 All liability insurance required herein shall be evidenced by ACORD form 25, "Certificate of Insurance". 6.3 Specifications. Such certificates of insurance, evidence of insurance, and endorsements shall specify: 6.3.1 The Owner as a certificate holder with correct mailing address. 6.3.2 Insured's name, which must match that on this Agreement. 6.3.3 Insurance companies affording each coverage, policy number of each coverage, policy dates of each coverage, all coverages and limits described herein, and signature of authorized representative of insurance company. 6.3.4 Producer of the certificate with correct address and phone number listed. 6.3.5 Additional insured status required herein. 6.3.6 Amount of any deductibles and/or retentions. 6.3.7 Cancellation, non-renewal and material reduction in coverage notification as required by this Agreement. Additionally, the words "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon Company, it agents or representatives" shall be deleted from the cancellation provision of the ACORD 25 certificate of insurance form. 6.3.8 Designated Construction Project Aggregate Limits required herein. 6.3.9 Personal Injury contractual liability required herein. 6.3.10 Primary and non-contributing status required herein. 6.3.11 Waivers of subrogation required herein. 6.4 Required Endorsements. A copy of each of the required endorsements shall also be provided. 6.5 Failure to Obtain. Failure of any Owner Party to demand such certificate or other evidence of full compliance with these insurance requirements or failure of any Owner Party to identify a deficiency from evidence that is provided shall not be construed as a waiver of the Contractor's obligation to maintain such insurance. 6.6 Certified Copies. Upon request of any Owner Party, the Contractor shall provide to the Owner a certified copy of all insurance policies required herein within ten (10) days of any such request. Renewal policies, if necessary, shall be delivered to the Owner prior to the expiration of the previous policy. 6.7 Commencement of Work. Commencement of Work without provision of the required certificate of insurance, evidence of insurance and/or required endorsements, or without compliance with any other provision of this Agreement, shall not constitute a waiver by any Owner Party of any rights. The Owner shall have the right, but not the obligation, of prohibiting the Contractor or any subcontractor from performing any Work until such certificate of insurance, evidence of insurance and/or required endorsements are received and approved by the Owner. 10-2012 00700-C8 7. Insurance Requirements of Contractor's Subcontractors 7.1 Insurance similar to that required of the Contractor shall be provided by all subcontractors (or provided by the Contractor on behalf of subcontractors) to cover operations performed under any subcontract agreement. The Contractor shall be held responsible for any modification in these insurance requirements as they apply to subcontractors. The Contractor shall maintain certificates of insurance from all subcontractors containing provisions similar to those listed herein (modified to recognize that the certificate is from subcontractor) enumerating, among other things, the waivers of subrogation, additional insured status, and primary liability as required herein, and make them available to the Owner upon request. 7.2 The Contractor is fully responsible for loss and damage to its property on the site, including tools and equipment, and shall take necessary precautions to prevent damage to or vandalism, theft, burglary, pilferage and unexplained disappearance of property. Any insurance covering the Contractor's or its subcontractor's property shall be the Contractor's and its subcontractor's sole and complete means or recovery for any such loss. To the extent any loss is not covered by said insurance or subject to any deductible or co-insurance, the Contractor shall not be reimbursed for same. Should the Contractor or its subcontractors choose to self insure this risk, it is expressly agreed that the Contractor hereby waives, and shall cause its subcontractors to waive, any claim for damage or loss to said property in favor of the Owner Parties. ,fir• 8. Use of the Owner's Equipment. The Contractor, its agents, employees, subcontractors or suppliers shall use the Owner's equipment only with express written permission of the Owner's designated representative and in accordance with the Owner's terms and condition for such use. If the Contractor or any of its agents, employees, subcontractors or suppliers utilize any of the Owner's equipment for any purpose, including machinery, tools, scaffolding, hoists, lifts or similar items owned, leased or under the control of the Owner, the Contractor shall defend, indemnify and be liable to the Owner Parties for any and all loss or damage which may arise from such use. 9. Release and Waiver. The Contractor hereby releases, and shall cause its subcontractors to release, the Owner Parties from any and all claims or causes of action whatsoever which the Contractor and/or its subcontractors might otherwise now or hereafter possess resulting in or from or in any way connected with any loss covered by insurance, whether required herein or not, or which should have been covered by insurance required herein, including the deductible and/or uninsured portion thereof, maintained and/or required to be maintained by the Contractor and/or its subcontractors pursuant to this Agreement. 10-2012 00700-C9 ATTACHMENT 2 (1.7 SPECIAL CONDITIONS OF AGREEMENT The following Special Conditions modify the General Conditions, Document 00700. Where a portion of the General Conditions is modified or deleted by these Special Conditions,the unaltered portions of the General Conditions shall remain in effect. ARTICLE 1 DEFINITIONS AND INTERPRETATIONS 1.01 Add the following paragraph to the end of Article 1.01: The OWNER'S representative on the project site is: Ronnie Hart telephone: 281. 652. 1750 The CONSTRUCTION MANAGER is: Jason Goin telephone: 281 541 0931 The CONSTRUCTION INSPECTOR is: TBD ARTICLE 4 RIGHTS AND RESPONSIBILITIES OF THE CONTRACTOR EXHIBIT A Owner's Insurance Requirements of Contractor, Article 4.6 Builder's Risk— Builder's Risk Insurance is required for this project. ARTICLE 5 PROSECUTION AND PROGRESS Temporary Facilities Contractor is be required to provide an on-site construction office for the duration of this project. Contractor is required to coordinate with the Owner for all Traffic Control Documents. Contractor to coordinate with the Architect& Owner for procurement of Traffic Control Documents prior to TXDOT permitting. Contractor is to keep a minimum of one lane open at all times, in both directions.No lane closures to extend beyond the defined work day. END OF SECTION 08/2018 00800- 1 of 1 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 General Decision Number: TX180282 09/14/2018 TX282 ATTACHMENT 3 Superseded General Decision Number: TX20170282 (...lte: Texas Construction Type: Building County: Brazoria County in Texas. BUILDING CONSTRUCTION PROJECTS (does not include single family homes or apartments up to and including 4 stories). Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.35 for calendar year 2018 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015. If this contract is covered by the E0, the contractor must pay all workers in any classification listed on this wage determination at least $10.35 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2018. The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. (1.16)ification Number Publication Date 0 01/05/2018 1 01/12/2018 2 08/03/2018 3 09/14/2018 ASBE0022-009 06/01/2018 Rates Fringes ASBESTOS WORKER/HEAT & FROST INSULATOR (Duct, Pipe and Mechanical System Insulation) $ 24.15 13.29 BOIL0074-003 01/01/2017 Rates Fringes BOILERMAKER $ 28.00 22.35 CARP0551-009 04/01/2016 Rates Fringes CARPENTER (Excludes Drywall Hanging, Form Work, and Metal tud Installation) $ 23.05 8.78 ` cLEC0716-005 08 28 2017 Rates Fringes https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 ill 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 ELECTRICIAN (Excludes Low Voltage Wiring and Installation of Alarms) $ 32.25 9.14 ELEV0031-003 01/01/2018 Rates Fringes ELEVATOR MECHANIC $ 41.28 32.645+a+b FOOTNOTES: A. 6% under 5 years based on regular hourly rate for all hours worked. 8% over 5 years based on regular hourly rate for all hours worked. B. Holidays: New Year's Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Friday after Thanksgiving Day; Christmas Day; and Veterans Day. ENGI0450-002 04/01/2014 Rates Fringes POWER EQUIPMENT OPERATOR Cranes $ 34.85 9.85 * IRON0084-011 06/01/2018 Rates Fringes IRONWORKER, ORNAMENTAL $ 23.77 7.12 (7IRON0135-002 09/01/2018 Rates Fringes IRONWORKER, STRUCTURAL $ 31.85 12.14 PLAS0079-004 01/01/2015 Rates Fringes PLASTERER $ 19.92 1.00 PLUM0068-002 10/01/2017 Rates Fringes PLUMBER $ 34.90 10.54 PLUM0211-010 10/01/2017 Rates Fringes PIPEFITTER (Including HVAC Pipe Installation) $ 34.10 11.71 SHEE0054-003 07/01/2017 Rates Fringes SHEET METAL WORKER (Excludes HVAC Duct and Unit Installation) $ 27.72 13.70 https://www.wdol.gov/wdol/scafiles/davisbaconrTX282.dvb?v=3 2/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 SUTX2014-008 07/21/2014 Rates Fringes (7)USTICAL CEILING MECHANIC $ 16.41 3.98 BRICKLAYER $ 19.86 0.00 CAULKER $ 15.36 0.00 CEMENT MASON/CONCRETE FINISHER $ 13.33 0.00 DRYWALL FINISHER/TAPER $ 16.30 3.71 DRYWALL HANGER AND METAL STUD INSTALLER $ 17.45 3.96 ELECTRICIAN (Alarm Installation Only) $ 17.97 3.37 ELECTRICIAN (Low Voltage Wiring Only) $ 18.00 1.68 FLOOR LAYER: Carpet $ 20.00 0.00 FORM WORKER $ 12.57 0.00 GLAZIER $ 19.12 4.41 INSULATOR - BATT $ 14.87 0.73 (imONWORKER, REINFORCING $ 12.10 0.00 LABORER: Common or General $ 10.55 0.00 LABORER: Mason Tender - Brick $ 13.37 0.00 LABORER: Mason Tender - Cement/Concrete $ 10.86 0.00 LABORER: Pipelayer $ 12.94 0.00 LABORER: Roof Tearoff $ 11.28 0.00 LABORER: Landscape and Irrigation $ 9.49 0.00 LATHER $ 19.73 0.00 OPERATOR: Backhoe/Excavator/Trackhoe $ 15.56 0.00 OPERATOR: Bobcat/Skid Steer/Skid Loader $ 13.93 0.00 OPERATOR: Bulldozer $ 20.77 0.00 OPERATOR: Drill $ 16.22 0.34 (7ERATOR: Forklift $ 15.64 0.00 OPERATOR: Grader/Blade $ 13.37 0.00 OPERATOR: Loader $ 13.55 0.94 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 3/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 OPERATOR: Mechanic $ 17.52 3.33 OPERATOR: Paver (Asphalt, gregate, and Concrete) $ 16.03 0.00 cRATOR: Roller $ 16.00 0.00 PAINTER (Brush, Roller and Spray), Excludes Drywall Finishing/Taping $ 16.77 4.51 ROOFER $ 15.40 0.00 SHEET METAL WORKER (HVAC Duct Installation Only) $ 20.05 4.19 SHEET METAL WORKER (HVAC Unit Installation Only) $ 19.67 2.24 SPRINKLER FITTER (Fire Sprinklers) $ 22.17 9.70 TILE FINISHER $ 12.00 0.00 TILE SETTER $ 16.17 0.00 TRUCK DRIVER: 1/Single Axle Truck $ 14.95 5.23 TRUCK DRIVER: Dump Truck $ 12.39 1.18 cftUCK DRIVER: Flatbed Truck $ 19.65 8.57 TRUCK DRIVER: Semi-Trailer Truck $ 12.50 0.00 TRUCK DRIVER: Water Truck $ 12.00 4.11 WATERPROOFER $ 14.39 0.00 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons 101mksulting from, or to assist a family member (or person who is ,ice family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 4/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than "SU" or "UAVG" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 001'l4. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the "SU" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers ossification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 5/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. IAVG rate will be updated once a year, usually in January of u.gch year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed.me eh regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an ; terested party may appeal directly to the Administrative view Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 6/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION (11111.1) https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 717 ATTACHMENT 4 Title VI Nondiscrimination Assurances tom` APPENDIX A _ During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: (1) Compliance with Regulations: The contractor shall comply with the Regulations relative to nondiscrimination in Federally-Assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. (2) Nondiscrimination: The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21 .5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Sub-Recipient or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information the contractor shall so certify to the Sub-Recipient, or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract,the Sub-Recipient shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: (a) withholding of payments to the contractor under the contract until the contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part. (6) Incorporation of Provisions:The contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the Sub-Recipient or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for non-compliance. Provided, however, that, in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the Sub-Recipient to enter into such litigation to protect the interests of the Sub-Recipient, and,in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. EXHIBT A CONTRACTOR'S INSURANCE CERTIFICATES See Attached Insurance Certificate& Endorsements 1 ® DATE(MMIDDIYYY1� ,a`�D CERTIFICATE OF LIABILITY INSURANCE 10/26/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES F )W.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED I� ,lESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: MCGRIFF,SEIBELS&WILLIAMS OF TEXAS,INC. PHONE 713-877-8975 FAX 713-877-8974 818 Town&Country Blvd,Suite 500 (A/C.No,Ext): (NC,No): Houston,TX 77024-4549 EMAIL ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# INSURER A:Hartford Underwriters Insurance Company 30104 INSURED INSURER B:Trumbull Insurance Company 27120 Durotech,Inc. Durotech GP LLC INSURER C:XL Specialty Insurance Company 37885 Wickchester Lane Suite 205 INSURER D:Pacific Insurance Company,Limited 10046 Suite Houston,TX 77043 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:HEVFPCDE REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUER POLICY EFF POLICY EXP TYPE OF INSURANCE LTR INSD WVD POLICY NUMBER (MM/DD/YYYY) (MM/DDIYYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY 61 UEAQI0214 05/31/2018 05/31/2019 EACH OCCURRENCE $ 2,000,000 DAMAGE TO CLAIMS-MADE X OCCUR PREMISES(aENTED occurrence) $ 300,000 MED EXP(Any one person) $ 10,000 X X PERSONAL&ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 POLICY X yppi LOC PRODUCTS-COMP/OP AGG $ 4,000,000 OTHER: $ rOMOBILE LIABILITY 61 UEAQI0258 05/31/2018 05/31/2019 COMBINED SINGLE LIMIT 1,000,000 (Ea accident) $ X ANY AUTO BODILYINJURY(Perperson) $ — OWNED SCHEDULED X X BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS_ HIRED NON-OWNED PROPERTY DAMAGE $ X AUTOS ONLY y AUTOS ONLY (Per accident) $ C UMBRELLA LIAB X OCCUR US00078826L118A 05/31/2018 05/31/2019 EACH OCCURRENCE $ 5,000,000 X- EXCESS LIAB CLAIMS-MADE X X AGGREGATE $ 5,000,000 DED RETENTION$ $ A WORKERS COMPENSATION 61WEAQI0215 05/31/2018 05/31/2019 X STATUTE OTH- ER AND EMPLOYERS'LIABILITY Y/N 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N. N/A X (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 D Contractors'Professional 13CPIB18055 05/31/2018 05/31/2019 Each Professional Incident $ 1,000,000 Aggregate Limit $ 1,000,000 $ $ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Project Name:Pearland Fire Station#8 The City of Pearland,its successors and assigns,and the Engineer,any officers,employees,or agents of such persons or entities are included as an Additional Insured with respect to General Liability and Automobile Liability coverages,where required by written contract. General Liability coverage is primary and non-contributory,where required by written contract. Waivers of Subrogation are provided on behalf of The City of Pearland,its successors and assigns,and the Engineer,any officers, employees,or agents of such persons or entities with respect to Workers'Compensation,General Liability and Automobile Liability coverages,where required by written contract. Excess Liability coverage follows form. Subject to policy forms,terms,conditions,limitations and exclusions. In the event of cancellation by the insurance companies,the policies have been endorsed to provide(30)days Notice of Cancellation(except for non-payment)to the certificate holder shown below. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Pearland AUTHORIZED REPRESENTATIVE 3519 Liberty Drive Pearland,TX 77581 477)-- Page 1 of 1 ©1988-2015 ACORD CORPORATION. All rights reserved. AnetOrt 1=iunearrva% TL... AnnDn..............a r.......,.........ce.,...a......L•c•,a Arnon This SPECIAL MULTI-FLEX POLICY is provided by the stock insurance company(s) of The Hartford Insurance Group, shown below. COMMON POLICY DECLARATIONS `= POLICY NUMBER: 61 UEA QI0214 S5 THE AP**-'RENEWAL OF: 61 UEA Q20214 HARTFORD Named Insured and Mailing Address: DUROTECH LP (GENERAL PARTNER: DUROT (No.,Street,Town,State,Zip Code) ECH GP LLC) ; DUROTECH INC GENERAL 11931 WICKCHESTER LN STE 205 HOUSTON , TX 77043 (HARRIS COUNTY) Policy Period: From 05/31/18 To 05/31/19 12:01 A.M. , Standard time at your mailing address shown above. In return for the payment of the premium, and subject to all of the terms of this policy, we agree with you to provide . insurance as stated in this policy. The Coverage Parts that are a part of this policy are listed below. The Advance Premium shown may be subject to adjustment. Total Advance Premium: Coverage Part and Insurance Company Summary Advance Premium COMMERCIAL GENERAL LIABILITY EMPLOYEE BENEFITS LIABILITY DATA BREACH COVERAGE PART HARTFORD UNDERWRITERS INSURANCE COMPANY ONE HARTFORD PLAZA HARTFORD, CONNECTICUT 06155 Form Numbers of Coverage Parts, Forms and Endorsements that are a part of this policy and that are not listed in the Coverage Parts. HM0001 IL00171198 HM99011185 IH09850115 IH99400409 IH99410409 IL00210908 IL02751113 HC00051212 HC00100798 HC00200295 Agent/Broker Name: MCGRIFF SEIBELS & WILLIAMS INC .1'1 `1 Countersigned by 05/30/16 (Where required by law) Authorized Representative Date - Form HM 00 10 01 07 COMMERCIAL GENERAL LIABILITY COVERAGE PART - DECLARATIONS POLICY NUMBER: 61 UEA QI0214 This COMMERCIAL GENERAL LIABILITY COVERAGE PART consists of: A. This Declarations; B. Commercial General Liability Schedule; C. Commercial General Liability Coverage Form; and D. Any Endorsements issued to be a part of this Coverage Part and listed below. LIMITS OF INSURANCE The Limits of Insurance, subject to all the terms of this Policy that apply, are: Each Occurrence Limit $1,000,000 • Damage to Premises Rented to You Limit -Any One Premises $3 0 0,0 0 0 Medical Expense Limit-Any One Person $10,000 Personal and Advertising Injury Limit $1,000,000 General Aggregate Limit, $2,000,000 (other than Products-Completed Operations) Products-Completed Operations Aggregate Limit $2,000,000 ADVANCE PREMIUM: AUDIT PERIOD: ANNUAL AUDIT Except in this Declarations, when we use the word "Declarations" in this Coverage Part, we mean this "Declarations" or the "Common Policy Declarations." Form Numbers of Coverage Forms, Endorsements and Schedules that are part of this Coverage Part: HC70010605 CG25020798 HC00880916 HC21231001 HC21260390 HC21400914 HC21820605 HC23700115 HC24981214 HC30060916 H 6,0 9,,16. HG01030606 HG21020204 HS24240317 N.S233.30733 CG01131204 CG03000196 HC20311210 HC21370305 HC21900608 HC21930304 HG21210206 HS03260713 HS21381014 IL01680312 HC12101185T IH12011185 GH27750616 - AMENDED EXCESS OF WRAP COVERGE DESIGNATED PROJECTS - PER EXPIRING IH12011185 GH30510610 - EFIS EXCEPTION FORM WITH FILL IN ATTACHED IN SIEBEL (11111 Form HC 00 10 07 98 COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. (1) The "bodily injury" or"property damage" is Read the entire policy carefully to determine rights, caused by an "occurrence" that takes duties and what is and is not covered. place in the"coverage territory"; Throughout this policy the words "you" and "your" (2) The "bodily injury" or "property damage" refer to the Named Insured shown in the occurs during the policy period; and Declarations, and any other person or organization (3) Prior to the policy period, no insured listed qualifying as a Named Insured under this policy.The under Paragraph 1. of Section II - Who Is words "we", "us" and "our" refer to the stock An Insured and no "employee" authorized _ insurance company member of The Hartford by you to give or receive notice of an providing this insurance. "occurrence" or claim, knew that the The word "insured" means any person or "bodily injury" or "property damage" had organization qualifying as such under Section II - occurred, in whole or in part. If such a Who Is An Insured. listed insured or authorized "employee" Other words and phrases that appear in quotation knew, prior to the policy period, that the marks have special meaning. Refer to Section V - "bodily injury" or "property damage" Definitions. occurred, then any continuation, change SECTION I-COVERAGES or resumption of such "bodily injury" or "property damage" during or after the COVERAGE A BODILY INJURY AND PROPERTY policy period will be deemed to have been DAMAGE LIABILITY known prior to the policy period. 1. Insuring Agreement c. "Bodily injury" or "property damage" will be a. We will pay those sums that the insured deemed to have been known to have becomes legally obligated to pay as damages occurred at the earliest time when any because of "bodily injury" or "property insured listed under Paragraph 1. of Section II damage" to which this insurance applies. We - Who Is An Insured or any "employee" will have the right and duty to defend the authorized by you to give or receive notice of insured against any "suit" seeking those an"occurrence" or claim: damages. However, we will have no duty to (1) Reports all, or any part, of the "bodily - defend the insured against any "suit" seeking injury" or "property damage" to us or any damages for "bodily injury" or "property other insurer; damage" to which this insurance does not (2) We may, at our discretion, investigate Receives a written or verbal demand or bodily any"occurrence" and settle any claim or"suit" claim for damages because of the injury" or"property damage"; or that may result. But: (3) Becomes aware by any other means that (1) The amount we will pay for damages is "bodily injury" or "property damage" has limited as described in Section III - Limits occurred or has begun to occur. Of Insurance;and (2) Our right and duty to defend ends when d. Damages because of "bodily injury" include • the applicable limit of damages claimed by any person or we have used up pp organization for care, loss of services or insurance in the payment of judgments or death resulting at any time from the "bodily settlements under Coverages A or B or injury". medical expenses under Coverage C. No other obligation or liabilityto paysums or e. Incidental Medical Malpractice And Good g Samaritan Coverage perform acts or services is covered unless "Bodily provided for under Supplementary injury" arising out of the rendering of or failure to render the following health care Payments-Coverages A and B. b. This insurance applies to "bodily injury" and services by any "employee" or "volunteer "property idama e" onlyif: worker" shall be deemed to be caused by an g "occurrence"for: HG 00 01 09 16 Page 1 of 21 ©2016 The Hartford (Includes copyrighted material of Insurance Services Office, Inc. with its permission.) (1) Professional health care services such as: (a) Liability to such party for, or for the (a) Medical, surgical, dental, laboratory, x- cost of, that parry's defense has also ray or nursing services or treatment, been assumed in the same "insured advice or instruction, or the related contract"; and furnishing of food or beverages; (b)Such attorney fees and litigation (b)Any health or therapeutic service, expenses are for defense of that party treatment, advice or instruction;or against a civil or alternative dispute (c)The furnishing or dispensing of drugs resolution proceeding in which damages to which this insurance or medical, dental, or surgical supplies applies are alleged. or appliances; or (2) First aid services, which include: c. Liquor Liability (a) Cardiopulmonary resuscitation, "Bodily injury" or"property damage"for which whether performed manually or with a any insured may be held liable by reason of: defibrillator; or (1) Causing or contributing to the intoxication of any person; (b)Services performed as a Good Samaritan. (2) The furnishing of alcoholic beverages to a For the purpose of determining the limits of person under the legal drinking age or under the influence of alcohol; or insurance, any act or omission together with all related acts or omissions in the furnishing (3) Any statute, ordinance or regulation of these services to any one person will be relating to the sale, gift, distribution or use considered one"occurrence". of alcoholic beverages. However, this Incidental Medical Malpractice This exclusion applies even if the claims And Good Samaritan Coverage provision against any insured allege negligence or applies only if you are not engaged in the other wrongdoing in: business or occupation of providing any of the (a)The supervision, hiring, employment, services described in this provision. training or monitoring of others by that 2. Exclusions insured;Cillb.' This insurance does not apply to: (b)Providing or failing to provide • a. Expected Or Intended Injury transportation with respect to any person that may be under the influence "Bodily injury" or"property damage" expected of alcohol; or intended from the standpoint of the if the "occurrence" which caused the "bodily insured. This exclusion does not apply to "bodily injury" or "property damage" resulting injury" damage", involved that or "property which is described in Paragraph (1), (2) or(3) from the use of reasonable force to protect above. persons or property. b. Contractual Liability However, this exclusion applies only if you are in the business of manufacturing, . "Bodily injury" or"property damage"for which distributing, selling, serving or furnishing the insured is obligated to pay damages by alcoholic beverages. For the purposes of this reason of the assumption of liability in a exclusion, permitting a person to bring contract or agreement. This exclusion does alcoholic beverages on your premises, for not apply to liability for damages: consumption on your premises, whether or (1) That the insured would have in the not a fee is charged or a license is required absence of the contract or agreement; or for such activity, is not by itself considered the (2) Assumed in a contract or agreement that business of selling, serving or furnishing alcoholic beverages. is an "insured contract", provided the "bodily injury" or "property damage" d. Workers'Compensation And Similar Laws • occurs subsequent to the execution of the Any obligation of the insured under a workers' contract or agreement. Solely for the compensation, disability benefits or purposes of liability assumed in an unemployment compensation law or any "insured contract", reasonable attorney similar law. fees and necessary litigation expenses e. Employer's Liability incurred by or for a party other than an insured are deemed to be damages "Bodily injury"to: because of "bodily injury" or "property (1) An "employee"of the insured arising out of damage", provided: and in the course of: Page 2 of 21 HG 00 01 0916 (a) Employment by the insured; or (c)Which are or were at any time (b)Performing duties related to the transported, handled, stored, treated, conduct of the insured's business; or disposed of, or processed as waste by (2) The spouse, child, parent, brother or sister or for: of that "employee" as a consequence of (i) Any insured; or Paragraph(1) above. (ii) Any person or organization for This exclusion applies: whom you may be legally (1) Whether the insured may be liable as an responsible; employer or in any other capacity; and (d)At or from any premises, site or (2) To any obligation to share damages with location on which any insured or any or repay someone else who must pay contractors or subcontractors working damages because of the injury. directly or indirectly on any insured's This exclusion does not apply to liability behalf are performing operations if the assumed by the insured under an "insured "pollutants" are brought on or to the contract". premises, site or location in connection f. Pollution with such operations by such insured, . contractor or subcontractor. However, (1) "Bodily injury" or "property damage" this subparagraph does not apply to: arising out of the actual, alleged or (i) "Bodily injury"or"property damage" threatened discharge, dispersal, seepage, arising out of the escape of fuels, migration, release or escape of lubricants or other operating fluids "pollutants": which are needed to perform the (a)At or from any premises, site or normal electrical, hydraulic or location which is or was at any time mechanical functions necessary for owned or occupied by, or rented or the operation of"mobile equipment" loaned to, any insured. However, this or its parts, if such fuels, lubricants • subparagraph does not apply to: or other operating fluids escape (I) "Bodily injury" if sustained within a from a vehicle part designed to building and caused by smoke, hold, store or receive them. This fumes, vapor or soot produced by exception does not apply if the or originating from equipment that "bodily injury" or "property damage" is used to heat, cool or dehumidify arises out of the intentional the building, or equipment that is discharge, dispersal or release of used to heat water for personal the fuels, lubricants or other use, by the building's occupants or operating fluids, or if such fuels, their guests; lubricants or other operating fluids . (ii) "Bodily injury" or"property damage" are brought on or to the premises, for which you may be held liable, if site or location with the intent that you are a contractor and the owner they be discharged, dispersed or or lessee of such premises, site or released as part of the operations location has been added to your being performed by such insured, policy as an additional insured with contractor or subcontractor; respect to your ongoing operations (ii) "Bodily injury"or"property damage" performed for that additional sustained within a building and insured at that premises, site or caused by the release of gases, location and such premises, site or fumes or vapors from materials • location is not and never was brought into that building in owned or occupied by, or rented or connection with operations being loaned to, any insured, other than performed by you or on your behalf that additional insured; or by a contractor or subcontractor; or (iii) "Bodily injury" or"property damage" (iii) "Bodily injury"or"property damage" arising out of heat, smoke or fumes arising out of heat, smoke or fumes from a"hostile fire"; from a"hostile fire"; or (b)At or from any premises, site or (e)At or from any premises, site or location which is or was at any time location on which any insured or any . used by or for any insured or others for contractors or subcontractors working the handling, storage, disposal, directly or indirectly on any insured's processing or treatment of waste; behalf are performing operations if the HG 00 01 09 16 Page 3 of 21 operations are to test for, monitor, (4) Liability assumed under any "insured clean up, remove, contain, treat, contract" for the ownership, maintenance detoxify or neutralize, or in any way or use of aircraft or watercraft; respond to, or assess the effects of, (5) "Bodily injury" or "property damage" "pollutants". arising out of: (2) Any loss, cost or expense arising out of (a) The operation of machinery or any: equipment that is attached to, or part (a) Request, demand, order or statutory or of, a land vehicle that would qualify regulatory requirement that any under the definition of "mobile insured or others test for, monitor, equipment" if it were not subject to a clean up, remove, contain, treat, compulsory or financial responsibility detoxify or neutralize, or in any way law or other motor vehicle insurance respond to, or assess the effects of, law where it is licensed or principally "pollutants"; or garaged;or (b)Claim or suit by or on behalf of a (b) The operation of any of the machinery governmental authority for damages or equipment listed in Paragraph f.(2) because of testing for, monitoring, or f.(3) of the definition of "mobile cleaning up, removing, containing, equipment"; or treating, detoxifying or neutralizing, or (6) An aircraft that is not owned by any in any way responding to, or assessing insured and is hired, chartered or loaned the effects of,"pollutants". with a paid crew. However, this exception However, this paragraph does not apply to does not apply if the insured has any other liability for damages because of "property insurance for such "bodily injury" or damage" that the insured would have in "property damage", whether the other the absence of such request, demand, insurance is primary, excess, contingent order or statutory or regulatory or on any other basis. requirement, or such claim or "suit" by or h. Mobile Equipment on behalf of a governmental authority. "Bodily injury" or "property damage" arising g. Aircraft,Auto Or Watercraft out of: ' "Bodily injury" or "property damage" arising (1) The transportation of "mobile equipment" out of the ownership, maintenance, use or by an "auto" owned or operated by or entrustment to others of any aircraft, "auto"or rented or loaned to any insured;or watercraft owned or operated by or rented or (2) The use of"mobile equipment" in, or while loaned to any insured. Use includes operation in practice for, or while being prepared for, and"loading or unloading". any prearranged racing, speed, This exclusion applies even if the claims demolition, or stunting activity. against any insured allege negligence or i. War other wrongdoing in the supervision, hiring, employment, training or monitoring of others "Bodily injury" or"property damage", however by that insured, if the "occurrence" which caused, arising, directly or indirectly, out of: caused the "bodily injury" or "property (1) War, including undeclared or civil war; damage" involved the ownership, (2) Warlike action by a military force, including maintenance, use or entrustment to others of action in hindering or defending against an any aircraft, "auto"or watercraft that is owned actual or expected attack, by any • or operated by or rented or loaned to any government, sovereign or other authority insured. using military personnel or other agents; This exclusion does"not apply to: or (1) A watercraft while ashore on premises you (3) Insurrection, rebellion, revolution, usurped own or rent; power, or action taken by governmental (2) A watercraft you do not own that is: authority in hindering or defending against (a) Less than 51 feet long; and any of these. (b)Not being used to carry persons for a j Damage To Property charge; "Property damage"to: (3) Parking an "auto" on, or on the ways next (1) Property you own, rent, or occupy, to, premises you own or rent, provided the including any costs or expenses incurred "auto" is not owned by or rented or loaned by you, or any other person, organization to you or the insured; or entity, for repair, replacement, Page 4 of 21 HG 00 01 09 16 enhancement, restoration or maintenance m. Damage To Impaired Property Or Property prevention injury to a for yperson Not Physically Injured J Ydamage "Property damage" to "impaired property" or to another's property; property that has not been physically injured, (2) Premises you sell, give away or abandon, arising out of: if the "property damage" arises out of any (1) A defect, deficiency, inadequacy or part of those premises; dangerous condition in "your product" or (3) Property loaned to you; "your work"; or (4) Personal property in the care, custody or (2) A delay or failure by you or anyone acting control of the insured; on your behalf to perform a contract or (5) That particular part of real property on agreement in accordance with its terms. which you or any contractors or This exclusion does not apply to the loss of subcontractors use of other property arising out of sudden working directly or indirectly on your behalf and accidental physical injury to "your are performing operations, if the "property product" or "your work" after it has been put damage"arises out of those operations; or to its intended use. (6) That particular part of any property that n. Recall Of Products, Work Or Impaired must be restored, repaired or replaced Property because "your work" was incorrectly performed on it. Damages claimed for any loss, cost or Paragraphs (1), (3) and (4) of this exclusion expense incurred by you or others for the loss • do not apply to"property damage"(other than of use, withdrawal, recall, inspection, repair, damage by fire) to premises, including the replacement, adjustment, removal or disposal contents of such premises, rented to you for a of: period of seven or fewer consecutive days. A (1) "Your product"; separate limit of insurance applies to Damage (2) "Your work";or To Premises Rented To You as described in Section III-Limits Of Insurance. (3) "Impaired property"; ,ar, Paragraph (2) of this exclusion does not apply if such product,work, or property is withdrawn t if the premises are "your work" and were or recalled from the market or from use by never occupied, rented or held for rental by any person or organization because of a known or suspected defect, deficiency, you. Paragraphs (3) and (4) of this exclusion do inadequacy or dangerous condition in it. not apply to "property damage" arising from o. Personal And Advertising Injury the use of elevators. "Bodily injury" arising out of "personal and Paragraphs (3), (4), (5) and (6) of this advertising injury". exclusion do not apply to liability assumed p. Access or Disclosure Of Confidential Or under a sidetrack agreement. Personal Information And Data-related Paragraphs (3) and (4) of this exclusion do Liability not apply to "property damage" to borrowed Damages arising out of: equipment while not being used to perform (1) Any access to or disclosure of any operations at the job site. person's or organization's confidential or Paragraph(6) of this exclusion does not apply personal information, including patents, to "property damage" included in the trade secrets, processing methods, "products-completed operations hazard". customer lists, financial information, credit k. Damage To Your Product card information, health information or any "Property damage" to "your product" arising other type of nonpublic information; or out of it or any part of it. (2) The loss of, loss of use of, damage to, I. Damage To Your Work corruption of, inability to access, or • "Property damage" to "your work" arising out inability to manipulate electronic data. of it or any part of it and included in the This exclusion applies even if damages are "products-completed operations hazard". claimed for notification costs, credit This exclusion does not apply if the damaged monitoring expenses, forensic expenses, work or the work out of which the damage public relations expenses or any other loss, arises was performed on your behalf by a cost or expense incurred by you or others subcontractor. arising out of that which is described in Paragraph (1) or(2) above. HG00010916 Page5of21 . However, unless Paragraph (1) above detoxifying or neutralizing or in any ra'\ applies, this exclusion does not apply to way responding to or assessing the damages because of"bodily injury". effects of an"asbestos hazard". As used in this exclusion, electronic data s. Recording And Distribution Of Material Or means information, facts or programs stored Information In Violation Of Law as or on, created or used on, or transmitted to "Bodily injury" or "property damage" arising or from computer software, including systems directly or indirectly out of any action or and applications software, hard or floppy omission that violates or is alleged to violate: disks, CD-ROMS, tapes, drives, cells, data (1) The Telephone Consumer Protection Act processing devices or any other media which (TCPA), including any amendment of or • are used with electronically controlled addition to such law; equipment. q. Employment-Related Practices (2) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; - "Bodily injury"to: (3) The Fair Credit Reporting Act(FCRA), and (1) A person arising out of any "employment- anyamendment of or addition to such law, related practices"; or p including the Fair and Accurate Credit (2) The spouse, child, parent, brother or sister Transaction Act(FACTA); or of that person as a consequence of"bodily (4) Any federal, state or local statute, injury" to that person at whom any ordinance or regulation, other than the • "employment-related practices" are TCPA or CAN-SPAM Act of 2003 or FCRA directed. and their amendments and additions, that This exclusion applies: addresses, prohibits or limits the printing, (1) Whether the injury-causing event dissemination, disposal, collecting, described in the definition of"employment- recording, sending, transmitting, related practices" occurs before communicating or distribution of material employment, during employment or after or information. employment of that person; Damage To Premises Rented To You - (2) Whether the insured may be liable as an Exception For Damage By Fire, Lightning Or • 4.11116., employer or in any other capacity; and Explosion (3) To any obligation to share damages with Exclusions c. through h. and j. through n. do not or repay someone else who must pay apply to damage by fire, lightning or explosion to damages because of the injury. premises while rented to you or temporarily r. Asbestos occupied by you with permission of the owner. A separate limit of insurance applies to this (1) "Bodily injury" or "property damage" coverage as described in Section III - Limits Of arising out of the"asbestos hazard". Insurance. (2) Any damages, judgments, settlements, COVERAGE B PERSONAL AND ADVERTISING loss, costs or expenses that: INJURY LIABILITY (a) May be awarded or incurred by reason 1. Insuring Agreement of any claim or suit alleging actual or a. We will pay those sums that the insured threatened injury or damage of any becomes legally obligated to pay as damages nature or kind to persons or property because of "personal and advertising injury" which would not have occurred in to which this insurance applies. We will have whole or in part but for the "asbestos the right and duty to defend the insured hazard"; against any "suit" seeking those damages. (b)Arise out of any request, demand, However, we will have no duty to defend the order or statutory or regulatory insured against any "suit" seeking damages requirement that any insured or others for "personal and advertising injury" to which . test for, monitor, clean up, remove, this insurance does not apply.We may, at our encapsulate, contain, treat, detoxify or discretion, investigate any offense and settle neutralize or in any way respond to or any claim or"suit"that may result. But: assess the effects of an "asbestos (1) The amount we will pay for damages is hazard"; or limited as described in Section III - Limits (c) Arise out of any claim or suit for Of Insurance; and damages because of testing for, (2) Our right and duty to defend end when we Obi, monitoring, cleaning up, removing, have used up the applicable limit of encapsulating, containing, treating, insurance in the payment of judgments or • Page6of21 HG00010916 • • settlements under Coverages A or B or h. Wrong Description Of Prices medical expenses under Coverage C. "Personal and advertising injury"arising out of No other obligation or liability to pay sums or the wrong description of the price of goods, perform acts or services is covered unless products or services. explicitly provided for under Supplementary i. Infringement Of Intellectual Property Payments- Coverages A and B. Rights • b. This insurance applies to "personal and (1) "Personal and advertising injury" arising advertising injury" caused by an offense out of any actual or alleged infringement arising out of your.business but only if the or violation of any intellectual property offense was committed in the "coverage rights such as copyright, patent, territory" during the policy period. trademark, trade name, trade secret, trade 2. Exclusions dress, service mark or other designation This insurance does not apply to: of origin or authenticity; or a. Knowing Violation Of Rights Of Another (2) Any injury or damage alleged in any clam "Personal and advertising injury"arising out of or "suit" that also alleges an infringement an offense committed by, at the direction or right, property violation ofany intellectual with the consent or acquiescence of the whether such allegation of insured with the .expectation of inflicting infringement or violation is made by you or "personal and advertising injury". by any other party involved in the claim or "suit", regardless of whether this b. Material Published With Knowledge Of insurance would otherwise apply. Falsity However, this exclusion does not apply if the "Personal and advertising injury" arising out of only allegation in the claim or "suit" involving oral, written or electronic publication, in any any intellectual property right is limited to: manner, of material, if done by or at the (1) Infringement, in your"advertisement", of: . direction of the insured with knowledge of its falsity. (a) Copyright; c. Material Published.Prior To Policy Period (b) Slogan; or "Personal and advertising injury"arising out of (c) Title of any literary or artistic work; or oral, written or electronic publication, in any (2) Copying, in your "advertisement", a manner, of material whose first publication person's or organization's "advertising took place before the beginning of the policy idea" or style of"advertisement". period. j. Insureds In Media And Internet Type d. Criminal Acts Businesses "Personal and advertising injury"arising out of "Personal and advertising injury" committed a criminal act committed by or at the direction by an insured whose business is: of the insured. (1) Advertising, broadcasting, publishing or e. Contractual Liability telecasting; "Personal and advertising injury"for which the (2) Designing or determining content of web insured has assumed liability in a contract or sites for others; or agreement. This exclusion does not apply to (3) An Internet search, access, content or liability for damages that the insured would service provider. have in the absence of the contract or agreement. However, this exclusion does not apply to • f. Breach Of Contract Paragraphs a., b. and c. of the definition of "personal and advertising injury" under the "Personal and advertising injury"arising out of a Definitions Section. breach of contract, except an implied contract to For the purposes of this exclusion,the placing use another's "advertising idea" in your of frames, borders or links, or advertising, for "advertisement". you or others anywhere on the Internet, is not g. Quality Or Performance Of Goods - Failure by itself, considered the business of To Conform To Statements advertising, broadcasting, publishing or "Personal and advertising injury"arising out of telecasting. the failure of goods, products or services to k. Electronic Chatrooms Or Bulletin Boards conform with any statement of quality or "Personal and advertising injury" arising out of performance made in your"advertisement", an electronic chatroom or bulletin board the HG 00 01 09 16 Page 7 of 21 insured hosts, owns, or over which the (4) Computer code, software or programming insured exercises control. used to enable: I. Unauthorized Use Of Another's Name Or (a)Your web site; or Product (b)The presentation or functionality of an "Personal and advertising injury" arising out of "advertisement" or other content on the unauthorized use of another's name or your web site. product in your e-mail address, domain name q. Right Of Privacy Created By Statute or metatags, or any other similar tactics to mislead another's potential customers. "Personal and advertising injury"arising out of m. Pollution the violation of a person's right of privacy created by any state or federal act. "Personal and advertising injury" arising out of However, this exclusion does not apply to the actual, alleged or threatened discharge, liability for damages that the insured would dispersal, seepage, migration, release or have in the absence of such state or federal escape of"pollutants"at any time. act. n. Pollution-Related r. Violation Of Anti-Trust law Any loss, cost or expense arising out of any: "Personal and advertising injury"arising out of (1) Request, demand, order or statutory or a violation of any anti-trust law. regulatory requirement that any insured or s. Securities others test for, monitor, clean up, remove, "Personal and advertising injury" arising out of contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects the fluctuation in price or value of any stocks, of, "pollutants"; or bonds or other securities. • (2) Claim or suit by or on behalf of a t. Recording And Distribution Of Material Or governmental authority for damages Information In Violation Of Law because of testing for, monitoring, "Personal and advertising injury" arising cleaning up, removing, containing, directly or indirectly out of any action or treating, detoxifying or neutralizing, or in omission that violates or is alleged to violate: any way responding to, or assessing the (1) The Telephone Consumer Protection Act effects of, "pollutants". (TCPA), including any amendment of or o. War addition to such law; "Personal and advertising injury", however (2) The CAN-SPAM Act of 2003, including . caused, arising, directly or indirectly, out of: any amendment of or addition to such law; (1) War, including undeclared or civil war; (3) The Fair Credit Reporting Act(FCRA), and (2) Warlike action by a military force, including any amendment of or addition to such law, action in hindering or defending against an including the Fair and Accurate Credit actual or expected attack, by any Transaction Act(FACTA); or government, sovereign or other authority (4) Any federal, state or local statute, using military personnel or other agents; ordinance or regulation, other than the or TCPA or CAN-SPAM Act of 2003 or FCRA (3) Insurrection, rebellion, revolution, usurped and their amendments and additions, that power, or action taken by governmental addresses, prohibits or limits the printing, authority in hindering or defending against dissemination, disposal, collecting, any of these. recording, sending, transmitting, Internet Advertisements And Content Of communicating or distribution of material p• or information. Others u. Employment-Related Practices "Personal and advertising injury" arising out of: "Personal and advertising injury"to: (1) An "advertisement"for others on your web (1) A person arising out of any "employment- site; related practices"; or (2) Placing a link to a web site of others on (2) The spouse, child, parent, brother or sister of that person as a consequence of your web site; "personal and advertising injury" to that (3) Content, including information, sounds, person at whom any "employment-related 11 16`, text, graphics, or images from a web site practices" are directed. of others displayed within a frame or border on your web site; or Page 8 of 21 HG 00 01 09 16 This exclusion applies: COVERAGE C MEDICAL PAYMENTS (1) Whether the injury-causing event 1. Insuring Agreement described in the definition of"employment- a. We will pay medical expenses as described related practices" occurs before below for "bodily injury" caused by an employment, during employment or after accident: employment of that person; (1) On premises you own or rent; (2) Whether the insured may be liable as an employer or in any other capacity; and (2) On ways next to premises you own or rent; or • (3) To any obligation to share damages with (3) Because of your operations; or repay someone else who must pay damages because of the injury. provided that: v. Asbestos (1) The accident takes place in the "coverage (1) "Personal and advertising injury" arising territory"and during the policy period; out of the"asbestos hazard". (2) The expenses are incurred and reported (2) Any damages, judgments, settlements, to us within three years of the date of the loss, costs or expenses that: accident; and (a) May be awarded or incurred by reason (3) The injured person submits to of any claim or suit alleging actual or examination, at our expense, by threatened injury or damage of any physicians of our choice as often as we nature or kind to persons or property reasonably require. which would not have occurred in b. We will make these payments regardless of whole or in part but for the "asbestos fault. These payments will not exceed the hazard"; applicable limit of insurance. We will pay (b)Arise out of any request, demand, reasonable expenses for: order or statutory or regulatory (1) First aid administered at the time of an requirement that any insured or others accident; test for, monitor, clean up, remove, (2) Necessary medical, surgical, X-ray and encapsulate, contain, treat, detoxify or dental services, including prosthetic neutralize or in any way respond to or devices; and assess�� the effects of an "asbestos (3) Necessary ambulance, hospital, hazard"; or (c)Arise out of any claim or suit for professional nursing and funeral services. damages because of testing for, 2. Exclusions monitoring, cleaning up, removing, We will not pay expenses for"bodily injury": encapsulating, containing, treating, a. Any Insured detoxifying or neutralizing or in any To any insured, except"volunteer workers". way responding to or assessing the effects of an"asbestos hazard". b. Hired Person w. Access Or Disclosure Of Confidential Or To a person hired to do work for or on behalf Personal Information of any insured or a tenant of any insured. "Personal and advertising injury"arising out of c. Injury On Normally Occupied Premises any access to or disclosure of any person's or To a person injured on that part of premises organization's confidential or personal you own or rent that the person normally information, including patents, trade secrets, occupies. processing methods, customer lists, financial d. Workers Compensation And Similar Laws information, credit card information, health information or any other type of nonpublic To a person, whether or not an "employee" of information. any insured, if benefits for the"bodily injury"are This exclusion applies even if damages are payable or must be provided under a workers' compensation or disability benefits law or a claimed for notification costs, credit similar law. monitoring expenses, forensic expenses, public relations expenses or any other loss, e. Athletics Activities cost or expense incurred by you or others To a person injured while practicing, arising out of any access to or disclosure of instructing or participating in any physical any person's or organization's confidential or exercises or games, sports, or athletic personal information. contests. HG 00 01 09 16 Page 9 of 21 • f. Products-Completed Operations Hazard assumed by the insured in the same "insured Included within the "products-completed contract'; operations hazard".. d. The allegations in the "suit" and the g. Coverage A Exclusions information we know about the "occurrence" Excluded under Coverage A. are such that no conflict appears to exist SUPPLEMENTARY PAYMENTS - COVERAGES between the interests of the insured and the A AND B interests of the indemnitee; 1. We will pay, with respect to any claim we e. The indemnitee and the insured ask us to conduct e defense of that investigate or settle, or any "suit" against an indemnitee against gain t sucd control h "suit"suit" and agree that • insured we defend; we can assign the same counsel to defend a. All expenses we incur. the insured and the indemnitee; and b. Up to $1,000 for cost of bail bonds required f. The indemnitee: because of accidents or traffic law violations arising out of the use of any vehicle to which (1) Agrees in writing to: the Bodily Injury Liability Coverage applies. (a) Cooperate with us in the investigation, We do not have to furnish these bonds. settlement or defense of the"suit"; c. The cost of appeal bonds or bonds to release (b) Immediately send us copies of any attachments, but only for bond amounts demands, notices, summonses or legal within the applicable limit of insurance.We do papers received in connection with the not have to furnish these bonds. "suit"; d. All reasonable expenses incurred by the (c) Notify any other insurer whose insured at our request to assist us in the coverage is available to the investigation or defense of the claim or"suit", indemnitee; and including actual loss of earnings up to $500 a (d)Cooperate with us with respect to day because of time off from work. coordinating other applicable e. All court costs taxed against the insured in insurance available to the indemnitee; the "suit". However, such costs do not and include attorneys' fees, attorneys' expenses,witness or expert fees, or any other expenses (2) Provides us with written authorization to: of a party taxed to the insured. (a) Obtain records and other information f. Prejudgment interest awarded against the related to the"suit"; and insured on that part of the judgment we pay. If (b)Conduct and control the defense of the we make an offer to pay the applicable limit of indemnitee in such"suit". insurance, we will not pay any prejudgment So long as the above conditions are met, interest based on that period of time after the attorneys' fees incurred by us in the defense of offer. that indemnitee, necessary litigation expenses g. All interest on the full amount of any judgment incurred by us and necessary litigation expenses that accrues after entry of the judgment and incurred by the indemnitee at our request will be • before we have paid, offered to pay, or paid as Supplementary Payments. deposited in court the part of the judgment Notwithstanding the provisions of Paragraph that is within the applicable limit of insurance. 2.b.(2) of Section I - Coverage A - Bodily Injury These payments will not reduce the limits of And Property Damage Liability, such payments insurance. will not be deemed to be damages for "bodily 2. If we defend an insured against a "suit" and an injury" and "property damage"and will not reduce indemnitee of the insured is also named as a the limits of insurance. party to the "suit", we will defend that indemnitee Our obligation to defend an insured's indemnitee if all of the following conditions are met: and to pay for attorneys' fees and necessary a. The "suit" against the indemnitee seeks litigation expenses as Supplementary Payments damages for which the insured has assumed ends when: the liability of the indemnitee in a contract or a. We have used up the applicable limit of agreement that is an"insured contract"; insurance in the payment of judgments or b. This insurance applies to such liability settlements; or assumed by the insured; b. The conditions set forth above, or the terms of c. The obligation to defend, or the cost of the the agreement described in Paragraph f. defense of, that indemnitee, has also been above, are no longer met. Page 10 of 21 HG 00 01 09 16 SECTION II -WHO IS AN INSURED "volunteer worker" as a consequence 1. If you are designated in the Declarations as: of Paragraph(1)(a)above; a. An individual, you and your spouse are (c) For which there is any 'obligation to insureds, but only with respect to the conduct share damages with or repay someone of a business of which you are the sole else who must pay damages because owner. of the injury described in Paragraphs b. A partnership or joint venture, you are an (1)(a)or(1)(b) above; or insured. Your members, your partners, and (d)Arising out of his or her providing or their spouses are also insureds, but only with failing to provide professional health respect to the conduct of your business. care services. c. A limited liability company, you are an If you are not in the business of providing insured. Your members are also insureds, but professional health care services: only with respect to the conduct of your (a) Subparagraphs(1)(a), (1)(b) and (1)(c) business. Your managers are insureds, but above do not apply to any "employee" only with respect to their duties as your or"volunteer worker" providing first aid managers. services; and d. An organization other than a partnership,joint (b)Subparagraph (1)(d) above does not venture or limited liability company, you are apply to any nurse, emergency medical an insured. Your "executive officers" and technician or paramedic employed by directors are insureds, but only with respect to you to provide such services. their duties as your officers or directors. Your (2) "Property damage"to property: stockholders are also insureds, but only with (a) Owned, occupied or used by, respect to their liability as stockholders. e. A trust, you are an insured. Your trustees are (b) Rented to, in the care, custody or also insureds, but only with respect to their control of, or over which physical duties as trustees. control is being exercised for any purpose by 2. Each of the following is also an insured: a. Em to ees And Volunteer Workers you, any of your "employees", "volunteer p y workers", any partner or member (if you Your "volunteer workers" only while are a partnership or joint venture), or any performing duties related to the conduct of member (if you are a limited liability your business, or your "employees", other company). than either your"executive officers" (if you are b. Real Estate Manager an organization other than a partnership,joint venture or limited liability company) or your Any person (other than your "employee" or ' managers (if you are a limited liability volunteer worker"), or any organization while company), but only for acts within the scope acting as your real estate manager. of their employment by you or while c. Temporary Custodians Of Your Property performing duties related to the conduct of Any person or organization having proper your business. temporary custody of your property if you die, However, none of these "employees" or but only: "volunteer workers" are insureds for: (1) With respect to liability arising out of the (1) "Bodily injury" or"personal and advertising maintenance or use of that property; and injury": (2) Until your legal representative has been . (a) To you,to your partners or members (if appointed. you are a partnership or joint venture), d. Legal Representative If You Die to your members (if you are a limited liability company), to a co-"employee" Your legal representative if you die, but only while in the course of his or her with respect to duties as such. That employment or performing duties representative will have all your rights and related to the conduct of your duties under this Coverage Part. business, or to your other "volunteer e. Unnamed Subsidiary workers" while performing duties Any subsidiary, and subsidiary thereof, of related to the conduct of your yours which is a legally incorporated entity of business; which you own a financial interest of more (b)To the spouse, child, parent, brother or than 50% of the voting stock on the effective sister of that co-"employee" or that date of the Coverage Part. HG 00 01 09 16 Page 11 of 21 The insurance afforded herein for any A person or organization is an additional insured subsidiary not named in this Coverage Part under this provision only for that period of time as a named insured does not apply to injury required by the contract or agreement. or damage with respect to which such insured However, no such person or organization is an is also a named insured under another policy insured under this provision if such person or or would be a named insured under such organization is included as an insured by an policy but for its termination or the exhaustion endorsement issued by us and made a part of of its limits of insurance. this Coverage Part. 3. Newly Acquired Or Formed Organization a. Vendors Any organization you newly acquire or form, Any person(s) or organization(s) (referred to other than a partnership, joint venture or limited below as vendor), but only with respect to liability company, and over which you maintain "bodily injury" or "property damage" arising financial interest of more than 50% of the voting out of"your products"which are distributed or • stock, will qualify as a Named Insured if there is sold in the regular course of the vendor's no other similar insurance available to that business and only if this Coverage Part organization. However:, provides coverage for "bodily injury" or a. Coverage under this provision is afforded only "property damage" included within the until the 180th day after you acquire or form "products-completed operations hazard". the organization or the end of the policy (1) The insurance afforded the vendor is period,whichever is earlier; subject to the following additional b. Coverage A does not apply to "bodily injury" exclusions: or "property damage" that occurred before This insurance does not apply to: • you acquired or formed the organization; and (a)"Bodily injury" or"property damage" e" for c. Coverage B does not apply to "personal and which the vendor is obligated to pay advertising injury" arising out of an offense damages by reason of the assumption committed before you acquired or formed the of liability in a contract or agreement. organization. This exclusion does not apply to 4. Nonowned Watercraft liability for damages that the vendor With respect to watercraft you do not own that is would have in the absence of the less than 51 feet long and is not being used to contract or agreement; carry persons for a charge, any person is an (b)Any express warranty unauthorized by insured while operating such watercraft with your you; . permission. Any other person or organization (c)Any physical or chemical change in the responsible for the conduct of such person is product made intentionally by the also an insured, but only with respect to liability vendor; arising out of the operation of the watercraft, and (d)Repackaging, except when unpacked only if no other insurance of any kind is available solely for the purpose of inspection, to that person or organization for this liability. demonstration, testing, or the However, no person or organization is an insured substitution of parts under instructions with respect to: from the manufacturer, and then a. "Bodily injury" to a co-"employee" of the repackaged in the original container; person operating the watercraft; or (e) Any failure to make such inspections, b. "Property damage" to property owned by, adjustments, tests or servicing as the rented to, in the charge of or occupied by you vendor has agreed to make or normally or the employer of any person who is an undertakes to make in the usual insured under this provision. course of business, in connection with 5. Additional Insureds When Required By the distribution or sale of the products; Written Contract, Written Agreement Or (f) Demonstration, installation, servicing Permit or repair operations, except such The following person(s) or organization(s) are an operations performed at the vendor's additional insured when you have agreed, in a premises in connection with the sale of . written contract, written agreement or because of the product; a permit issued by a state or political subdivision, (g) Products which, after distribution or that such person or organization be added as an sale by you, have been labeled or additional insured on your policy, provided the relabeled or used as a container, part injury or damage occurs subsequent to the or ingredient of any other thing or execution of the contract or agreement. substance by or for the vendor; or Page 12 of 21 HG 00 01 09 16 (h)"Bodily injury" or "property damage" omissions of those acting on your behalf: arising out of the sole negligence of the (1) In connection with your premises; or vendor for its own acts or omissions or (2) In the performance of your ongoing those of its employees or anyone else operations performed by you or on your acting on its behalf. However, this behalf. exclusion does not apply to: (i) The exceptions contained in Sub- With respect to the insurance afforded these paragraphs(d)nor(f); or additional insureds, the following additional exclusion applies: (ii) Such inspections, adjustments, This insurance does not apply to "bodily tests or servicing as the vendor has injury", "property damage" or "personal and agreed to make or normally advertising injury" arising out of the rendering undertakes to make in the usual of or the failure to render any professional course of business, in connection services by or for you, including: with the distribution or sale of the products. 1. The preparing, approving, or failing to prepare or approve, maps, shop drawings, (2) This insurance does not apply to any opinions, reports, surveys, field orders, insured person or organization, from change orders or drawings and whom you have acquired such products, specifications; or or any ingredient, part or container, entering into, accompanying or containing 2. Supervisory, inspection, architectural or such products, engineering activities. b. Lessors Of Equipment This exclusion applies even if the claims • (1) Any person(s) or organization(s) from against any insured allege negligence or whom you lease equipment; but only with other wrongdoing in the supervision, hiring, employment, training or monitoring of others respect to their liability for "bodily injury", by that insured, if the "occurrence" which "property damage" or "personal and caused the "bodily injury" or "property advertising injury" caused, in whole or in damage", or the offense which caused the part, by your maintenance, operation or "personal and advertising injury", involved the use of equipment leased to you by such rendering of or the failure to render any person(s) or organization(s), professional services by or for you. (2) With respect to the insurance afforded to e. Permits Issued By State Or Political • these additional insureds this insurance Subdivisions does not apply to any "occurrence" which takes place after the equipment lease Any state or political subdivision, but only with expires. respect to operations performed by you or on c. Lessors Of Land Or Premises your behalf for which the state or political subdivision has issued a permit. Any person or organization from whom you With respect to the insurance afforded these lease land or premises, but only with respect additional insureds, this insurance does not to liability arising out of the ownership, apply to: maintenance or use of that part of the land or premises leased to you. (1) "Bodily injury", "property damage" or • With respect to the insurance afforded these "personal and advertising injury" arising additional insureds the following additional out operations performed for the state exclusions apply: or municipality; or This insurance does not apply to: (2) "Bodily injury" or "property damage" included within the "products-completed 1. Any "occurrence" which takes place after operations hazard". you cease to lease that land; or f. Any Other Party 2. Structural alterations, new construction or Any other person or organization who is not demolition operations performed by or on an additional insured under Paragraphs a. behalf of such person or organization. through e. above, but only with respect to d. Architects, Engineers Or Surveyors liability for "bodily injury", "property damage" Any architect, engineer, or surveyor, but only or"personal and advertising injury" caused, in with respect to liability for "bodily injury", whole or in part, by your acts or omissions or "property damage" or "personal and the acts or omissions of those acting on your advertising injury" caused, in whole or in part, behalf: by your acts or omissions or the acts or (1) In the performance of your ongoing operations; HG 00 01 09 16 Page 13 of 21 ' (2) In connection with your premises owned No person or organization is an insured with respect Ci"IL\ byIn or rented ot you; or to ointthe conduct of anyventure or limited curr lienability or past companypartne that s riot (3) In connection �with "your work" and included within the "products-completed shown as a Named Insured in the Declarations. operations hazard", but only if SECTION Ill-LIMITS OF INSURANCE (a)The written contract or agreement 1. The Most We Will Pay requires you to provide such coverage The Limits of Insurance shown in the to such additional insured; and Declarations and the rules below fix the most we (b)This Coverage Part provides coverage will pay regardless of the number of: . for"bodily injury" or"property damage" a. Insureds; included within the "products- "suits" completed operations hazard". b. Claims made orbrought;or However: c. Persons or organizations making claims or (1) The insurance afforded to such additional bringing suits . insured only applies to the extent 2. General Aggregate Limit permitted by law; and The General Aggregate Limit is the most we will (2) If coverage provided to the additional pay for the sum of: insured is required by a contract or a. Medical expenses under Coverage C; . agreement, the insurance afforded to such b. Damages under Coverage A, except additional insured will not be broader than damages because of "bodily injury" or that which you are required by the contract "property damage" included in the "products- or agreement to provide for such completed operations hazard"; and additional insured. c. Damages under Coverage B. With respect to the insurance afforded to 3. Products-Completed Operations Aggregate these additional insureds, this insurance does Limit not apply to: "Bodily injury", "property damage" or The Products-Completed Operations Aggregate "personal and advertising injury" arising out of Limit is the most we will pay under Coverage A . the rendering of, or the failure to render, any for damages because of "bodily injury" and"property damage" included in the "products- professional architectural, engineering or completed operations hazard". surveying services, including: (1) The preparing, approving, or failing to 4. Personal And Advertising Injury Limit prepare or approve, maps, shop drawings, Subject to 2. above, the Personal and opinions, reports, surveys, field orders, Advertising Injury Limit is the most we will pay change orders or drawings and under Coverage B for the sum of all damages specifications; or because of all "personal and advertising injury" (2) Supervisory, inspection, architectural or sustained by any one person or organization. engineering activities. 5. Each Occurrence Limit This exclusion applies even if the claims Subject to 2. or 3. above, whichever applies, the against any insured allege negligence or Each Occurrence Limit is the most we will pay for other wrongdoing in the supervision, hiring, the sum of: employment, training or monitoring of others a. Damages under Coverage A; and by that insured, if the "occurrence" which b. Medical expenses under Coverage C caused the "bodily injury" or "property damage", or the offense which caused the because of all "bodily injury" and "property "personal and advertising injury", involved the damage"arising out of any one"occurrence". • rendering of or the failure to render any 6. Damage To Premises Rented To You Limit professional services by or for you. Subject to 5. above, the Damage To Premises The limits of insurance that apply to additional Rented To You Limit is the most we will pay insureds is described in Section III - Limits Of under Coverage A for damages because of Insurance. "property damage" to any one premises, while How this insurance applies when other insurance rented to you, or in the case of damage by fire, is available to the additional insured is described lightning or explosion, while rented to you or in the Other Insurance Condition in Section iv - temporarily occupied by you with permission of Commercial General Liability Conditions. the owner. Page 14 of 21 HG 00 01 09 16 In the case of damage by fire, lightning or b. Notice Of Claim explosion, the Damage to Premises Rented To If a claim is made or"suit" is brought against You Limit applies to all damage proximately any insured, you or any additional insured caused by the same event, whether such must: damage results from fire, lightning or explosion (1) Immediately record the specifics of the or any combination of these. claim or"suit"and the date received; and 7. Medical Expense Limit • (2) Notify us as soon as practicable. Subject to 5. above,the Medical Expense Limit is the most we will pay under Coverage C for all You or any additional insured must see to it medical expenses because of "bodily injury" that we receive written notice of the claim or sustained by any one person. "suit"as soon as practicable. 8. How Limits Apply To Additional Insureds c. Assistance And Cooperation Of The Insured If you have agreed in a written contract or written You and any other involved insured must: agreement that another person or organization be added as an additional insured on your policy, (1) Immediately send us copies of any the most we will pay on behalf of such additional demands, notices, summonses or legal insured is the lesser of: papers received in connection with the a. The limits of insurance specified in the written claim or"suit"; contract or written agreement; or (2) Authorize us to obtain records and other b. The Limits of Insurance shown in the information; Declarations. (3) Cooperate with us in the investigation or Such amount shall be a part of and not in settlement of the claim or defense against addition to Limits of Insurance shown in the the"suit"; and Declarations and described in this Section. (4) Assist us, upon our request, in the The Limits of Insurance of this Coverage Part apply enforcement of any right against any person • separately to each consecutive annual period and to or organization which may be liable to the any remaining period of less than 12 months, insured because of injury or damage to starting with the beginning of the policy period which this insurance may also apply. shown in the Declarations, unless the policy period d. Obligations At The Insureds Own Cost is extended after issuance for an additional period of No insured will, except at that insured's own less than 12 months. In that case, the additional cost, voluntarily make a payment, assume period will be deemed part of the last preceding any obligation, or incur any expense, other period for purposes of determining the Limits of than for first aid,without our consent. Insurance. e. Additional Insureds Other Insurance SECTION IV - COMMERCIAL GENERAL • LIABILITY CONDITIONS If we cover a claim or "suit" under this Coverage Part that may also be covered by 1. Bankruptcy other insurance available to an additional Bankruptcy or insolvency of the insured or of the insured, such additional insured must submit insured's estate will not relieve us of our such claim or "suit" to the other insurer for obligations under this Coverage Part. defense and indemnity. 2. Duties In The Event Of Occurrence, Offense, However, this provision does not apply to the Claim Or Suit extent that you have agreed in a written a. Notice Of Occurrence Or Offense contract or written agreement that this You or any additional insured must see to it insurance is primary and non-contributory . that we are notified as soon as practicable of with the additional insured's own insurance. an "occurrence" or an offense which may f. Knowledge Of An Occurrence, Offense, result in a claim. •To the extent possible, Claim Or Suit notice should include: Paragraphs a. and b. apply to you or to any (1) How, when and where the "occurrence" or additional insured only when such offense took place; "occurrence", offense, claim or"suit"is known (2) The names and addresses of any injured to: persons and witnesses; and (1) You or any additional insured that is an (3) The nature and location of any injury or individual; damage arising out of the "occurrence" or (2) Any partner, if you or the additional offense. insured is a partnership; HG 00 01 09 16 Page 15 of 21 (3) Any manager, if you or the additional (3) Tenant Liability rib\ insured is a limited liability company; That is insurance purchased by you to (4) Any "executive officer" or insurance cover your liability as a tenant for manager, if you or the additional insured is "property damage" to premises rented to • a corporation; you or temporarily occupied by you with (5) Any trustee, if you or the additional permission of the owner; insured is a trust; or (4) Aircraft,Auto Or Watercraft (6) Any elected or appointed official, if you or If the loss arises out of the maintenance or the additional insured is a political use of aircraft, "autos" or watercraft to the subdivision or public entity. extent not subject to Exclusion g. of This duty applies separately to you and any Section I - Coverage A- Bodily Injury And additional insured. Property Damage Liability; 3. Legal Action Against Us (5) Property Damage To Borrowed No person or organization has a right under this Equipment Or Use Of Elevators Coverage Part: If the loss arises out of"property damage" to borrowed equipment or the use of a. To join us as a party or otherwise bring us elevators to the extent not subject to into a "suit" asking for damages from an Exclusion j. of Section I - Coverage A - insured; or Bodily Injury And Property Damage b. To sue us on this Coverage Part unless all of Liability; its terms have been fully complied with. (6) When You Are Added As An Additional A person or organization may sue us to recover Insured To Other Insurance . on an agreed settlement or on a final judgment Any other insurance available to you against an insured; but we will not be liable for covering liability for damages arising out damages that are not payable under the terms of of the premises or operations, or products this Coverage Part or that are in excess of the and completed operations, for which you applicable limit of insurance. An agreed have been added as an additional insured settlement means a settlement and release of by that insurance; or liability signed by us, the insured and the ��- —KR claimant or the claimant's legal representative. {7) Whe +—Yo�i�Add _.others;=Asp 4. Other Insurance Additiona fins ared To Thik.lnsurance If other valid and collectible insurance is Any other insurance available to an . additional insured. available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our However, the following provisions apply to obligations are limited as follows: other insurance available to any person or a. Primary Insurance organization who is an additional insured under this coverage part. This insurance is primary except when b. (a) Primary Insurance When Required below applies. If other insurance is also By Contract primary, we will share with all that other insurance by the method described in c. This insurance is primary if you have below. agreed in a written contract or written . b. Excess Insurance agreement that this insurance be primary. If other insurance is also This insurance is excess over any of the other primary, we will share with all that insurance, whether primary, excess, other insurance by the method contingent or on any other basis: described in c. below. (1) Your Work (b)Primary And Non-Contributory To That is Fire, Extended Coverage, Builder's Other Insurance When Required By Risk, Installation Risk or similar coverage Contract for"your work"; If you have agreed in a written (2) Premises Rented To You contract, written agreement, or permit • is fire, lightning or explosion that this insurance is primary and non- Thatcontributory with the additional insurance for premises rented to you or insured's own insurance,this insurance temporarily occupied by you with is primary and we will not seek (ith\ permission of the owner; contribution from that other insurance. Page 16 of 21 HG 00 01 09 16 Paragraphs (a) and (b) do not apply to computation, and send us copies at such other insurance to which the additional times as we may request. insured has been added as an additional 6. Representations • insured. a. When You Accept This Policy When this insurance is excess, we will have By accepting this policy, you agree: no duty under Coverages A or B to defend the insured against any "suit" if any other (1) The statements in the Declarations are insurer has a duty to defend the insured accurate and complete; against that"suit". If no other insurer defends, (2) Those statements are based upon we will undertake to do so, but we will be representations you made to us; and entitled to the insured's rights against all (3) We have issued this policy in reliance . those other insurers. upon your representations. When this insurance is excess over other b. Unintentional Failure To Disclose Hazards insurance, we will pay only our share of the amount of the loss, if any, that exceeds the If unintentionally you should fail to disclose all sum of: hazards relating to the conduct of your (1) The total amount that all such other business that exist at the inception date of insurance would pay for the loss in the this Coverage Part, we shall not deny absence of this insurance; and coverage under this Coverage Part because (2) The total of all deductible and self-insured of such failure. amounts under all that other insurance. 7. Separation Of Insureds • We will share the remaining loss, if any, with Except with respect to the Limits of Insurance, any other insurance that is not described in and any rights or duties specifically assigned in this Excess Insurance provision and was not this Coverage Part to the first Named Insured, bought specifically to apply in excess of the this insurance applies: Limits of Insurance shown in the Declarations a. As if each Named Insured were the only of this Coverage Part. Named Insured; and c. Method Of Sharing b. Separately to each insured against whom If all of the other insurance permits claim is made or"suit"is brought. contribution by equal shares, we will follow 8. Transfer Of Rights Of Recovery Against . this method also. Under this approach each Others To Us insurer contributes equal amounts until it has a. Transfer Of Rights Of Recovery paid its applicable limit of insurance or none of the loss remains,'whichever comes first. If the insured has rights to recover all or part If any of the other insurance does not permit of any payment, including Supplementary contribution by equal shares, we will Payments, we have made under this contribute by limits. Under this method, each Coverage Part, those rights are transferred to insurer's share is based on the ratio of its us. The insured must do nothing after loss to applicable limit of insurance to the total impair them. At our request, the insured will applicable limits of insurance of all insurers. bring "suit" or transfer those rights to us and • 5. Premium Audit help us enforce them b.r>Waiu�er OfIRiglts Of_Recovery{Waiver;Of�9 a. We will compute all premiums for this (;S 0#04 ation} Coverage Part in accordance with our rules and rates. If the insured has waived any rights of b. Premium shown in this Coverage Part as recovery against any person or organization advance premium is a deposit premium only. for all or part of any payment, including At the close of each audit period we will Supplementary Payments, we have made compute the earned premium for that period under this Coverage Part, we also waive that and send notice to the first Named Insured. right, provided the insured waived their rights The due date for audit and retrospective of recovery against such person or • premiums is the date shown as the due date organization in a contract, agreement or on the bill. If the sum of the advance and permit that was executed prior to the injury or audit premiums paid for the policy period is damage. greater than the earned premium, we will 9. When We Do Not Renew return the excess to the first Named Insured. If we decide not to renew this Coverage Part, we c. The first Named Insured must keep records of will mail or deliver to the first Named Insured the information we need for premium shown in the Declarations written notice of the HG00010916 ,Page17of21 nonrenewal not less than 30 days before the c. All other parts of the world if the injury or expiration date. damage arises out of: If notice is mailed, proof of mailing will be (1) Goods or products made or sold by you in sufficient proof of notice. the territory described in a. above; SECTION V-DEFINITIONS (2) The activities of a person whose home is 1. "Advertisement" means the widespread public in the territory described in a. above, but is dissemination of information or images that has away for a short time on your business; or the purpose of inducing the sale of goods, (3) "Personal and advertising injury" offenses • products or services through: that take place through the Internet or a. (1)Radio; similar electronic means of communication (2) Television; provided the insured's responsibility to pay (3) Billboard; damages is determined in the United States of America (including its territories and possessions), (4) Magazine; Puerto Rico or Canada, in a "suit" on the merits (5) Newspaper; or according to the substantive law in such territory or b. Any other publication that is given widespread in a settlement we agree to. public distribution. 7. "Employee" includes a "leased worker". However, "advertisement"does not include: "Employee" does not include a "temporary worker . a. The design, printed material, information or 8. "Employment-Related Practices"means: images contained• in, on or upon the packaging or labeling of any goods or a. Refusal to employ that person; products; or b. Termination of that person's employment; or b. An interactive conversation between or c. Employment-related practices, policies, acts among persons through a computer network. or omissions, such as coercion, demotion, 2. "Advertising idea" means any idea for an evaluation, reassignment, discipline, "advertisement". defamation, harassment, humiliation, . 3. "Asbestos hazard" means an exposure or discrimination or malicious prosecution threat of exposure to the actual or alleged "Executive directed at that person. properties of asbestos and includes the mere 9. officer" means a person holding any presence of asbestos in any form, of the officer positions created by your charter, 4. "Auto"means: constitution, by-laws or any other similar governing document. a. A land motor vehicle, trailer or semitrailer 10."Hostile fire" means one which becomes designed for travel on public roads, including uncontrollable or breaks out from where it was any attached machinery or equipment; or intended to be. • b. Any other land vehicle that is subject to a 11."impaired property" means tangible property, compulsory or financial responsibility law or other than "your product" or "your work", that other motor vehicle insurance law where it is cannot be used or is less useful because: licensed or principally garaged. However, "auto" does not include "mobile a. It incorporates "your.product" or "your work" equipment". that is known or thought to be defective, deficient, inadequate or dangerous; or 5. "Bodily injury"means physical: b. You have failed to fulfill the terms of a a. Injury; contract or agreement; b. Sickness; or if such property can be restored to use by the c. Disease repair, replacement, adjustment or removal of sustained by a person and, if arising out of the "your product" or"your work", or your fulfilling the above, mental anguish or death at any time. terms of the contract or agreement. 6. "Coverage territory" means: 12."Insured contract"means: a. The United States of America (including its a. A contract for a lease of premises. However, territories and possessions), Puerto Rico and that portion of the contract for a lease of Canada; premises that indemnifies any person or b. International waters or airspace, but only if organization for damage by fire, lightning or the injury or damage occurs in the course of explosion to premises while rented to you or travel or transportation between any places temporarily occupied by you with permission • included in a. above; or of the owner is subject to the Damage to Page18of21 • HG00010916 Premises Rented To You Limit described in 14."Loading or unloading" means the handling of Section III- Limits of Insurance; property: b. A sidetrack agreement; a. After it is moved from the place where it is c. Any easement or license agreement, accepted for movement into or onto an including an easement or license agreement aircraft,watercraft or"auto"; in connection with construction or demolition b. While it is in or on an aircraft, watercraft or . operations on or within 50 feet of a railroad; "auto"; or d. An obligation, as required by ordinance, to c. While it is being moved from an aircraft, indemnify a municipality, except in connection watercraft or "auto" to the place where it is with work for a municipality; finally delivered; e. An elevator maintenance agreement; but "loading or unloading" does not include the f. That part of any other contract or agreement movement of property by means of a mechanical pertaining to your business (including an device, other than a hand truck, that is not indemnification of a municipality in connection attached to the aircraft, watercraft or"auto". with work performed for a municipality) under 15."Mobile equipment" means any of the following . which you assume the tort liability of another types of land vehicles, including any attached party to pay for "bodily injury" or "property machinery or equipment: damage" to a third person or organization, provided the "bodily injury" or "property a. Bulldozers, farm machinery,forklifts and other damage" is caused, in whole or in part, by vehicles designed for use principally off public you or by those acting on your behalf. Tort roads; liability means a liability that would be b. Vehicles maintained for use solely on or next imposed by law in the absence of any to premises you own or rent; contract or agreement. c. Vehicles that travel on crawler treads; Paragraph f. includes that part of any contract d. Vehicles, whether self-propelled or not, . or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising permanentlymaintained mounted: unted:marily to provide mobility to out of construction or demolition operations, Power cranes, shovels, loaders, diggers or within 50 feet of any railroad property and (1) affecting any railroad bridge or trestle, tracks, drills; or road-beds,tunnel, underpass or crossing. (2) Road construction or resurfacing However, Paragraph f. does not include that equipment such as graders, scrapers or part of any contract or agreement: rollers; (1) That indemnifies an architect, engineer or e. Vehicles not described in a., b.,c. or d. above surveyor for injury or damage arising out of: that are not self-propelled and are maintained . (a) Preparing, approving, or failing to primarily to provide mobility to permanently prepare or approve, maps, shop attached equipment of the following types: drawings, opinions, reports, surveys, (1) Air compressors, pumps and generators, field orders, change orders or drawings including spraying, welding, building and specifications; or cleaning, geophysical exploration, lighting (b) Giving directions or instructions, or and well servicing equipment; or failing to give them, if that is the (2) Cherry pickers and similar devices used to primary cause of the injury or damage; raise or lower workers; or f. Vehicles not described in a., b.,c. or d. above . (2) Under which the insured, if an architect, maintained primarily for purposes other than engineer or surveyor, assumes liability for the transportation of persons or cargo. an injury or damage arising out of the However, self-propelled vehicles with the insured's rendering or failure to render following types of permanently attached professional services, including those listed equipment are not"mobile equipment"but will in (1) above and supervisory, inspection, be considered"autos": architectural or engineering activities. 13."Leased worker" means a person leased to you (1) Equipment designed primarily for: by a labor leasing firm under an agreement (a) Snow removal; between you and the labor leasing firm, to (b)Road maintenance, but not . perform duties related to the conduct of your construction or resurfacing; or business. "Leased worker" does not include a (c) Street cleaning; "temporary worker". HG 00 01 09 16 Page 19 of 21 (2) Cherry pickers and similar devices (2) Work that has not yet been completed or mounted on automobile or truck chassis abandoned. However, "your work" will be and used to raise or lower workers; and deemed completed at the earliest of the (3) Air compressors, pumps and generators, following times: including spraying, welding, building (a)When all of the work called for in your cleaning, geophysical exploration, lighting contract has been completed. and well servicing equipment. (b)When all of the work to be done at the However, "mobile equipment" does not include job site has been completed if your any land vehicle that is subject to a compulsory contract calls for work at more than or financial responsibility law or other motor one job site. vehicle insurance law where it is licensed or (c)When that part of the work done at a principally garaged. Land vehicles subject to a job site has been put to its intended compulsory or financial responsibility law or other use by any person or organization motor vehicle insurance law are considered other than another contractor or "autos". subcontractor working on the same 16."Occurrence" means an accident, including project. continuous or repeated exposure to substantially Work that may need service, the same general harmful conditions. maintenance, correction, repair or 17."Personal and advertising injury" means replacement, but which is otherwise injury, including consequential "bodily injury", complete,will be treated as completed. arising out of one or more of the following b. Does not include "bodily injury" or "property offenses: damage"arising out of: • a. False arrest, detention or imprisonment; (1) The transportation of property, unless the b. Malicious prosecution; injury or damage arises out of a condition c. The wrongful eviction from, wrongful entry in or on a vehicle not owned or operated into, or invasion of the right of private by you, and that condition was created by occupancy of a room, dwelling or premises the "loading or unloading" of that vehicle that a person or organization occupies, by any insured; ' committed by or on behalf of its owner, (2) The existence of tools, uninstalled landlord or lessor; equipment or abandoned or unused d. Oral, written or electronic publication, in any materials;or • manner, of material that slanders or libels a (3) Products or operations for which the person or organization or disparages a classification, listed in the Declarations or person's or organization's goods, products or in a policy Schedule, states that products- services; completed operations are subject to the e. Oral, written or electronic publication, in any General Aggregate Limit. manner, of material that violates a person's 20."Property damage" means: right of privacy; a. Physical injury to tangible property, including f. Copying, in your "advertisement", a person's all resulting loss of use of that property. All or organization's "advertising idea" or style of such loss of use shall be deemed to occur at "advertisement"; or the time of the physical injury that caused it; g. Infringement of copyright, slogan, or title of or any literary or artistic work, in your b. Loss of use of tangible property that is not "advertisement". physically injured. All such loss of use shall 18."Pollutants" mean any solid, liquid, gaseous or be deemed to occur at the time of the thermal irritant or contaminant, including smoke, "occurrence"that caused it. vapor, soot, fumes, acids, alkalis, chemicals and As used in this definition, computerized or waste. Waste includes materials to be recycled, electronically stored data, programs or software reconditioned or reclaimed. are not tangible property. Electronic data means 19."Products-completed operations hazard": information, facts or programs: • a. Includes all "bodily injury" and "property a. Stored as or on; damage" occurring away from premises you b. Created or used on;or own or rent and arising out of "your product" or"your work"except: c. Transmitted to or from; (1) Products that are still in your physical computer software, including systems and possession;or applications software, hard or floppy disks, CD- Page 20 of 21 HG 00 01 09 16 ROMS, tapes, drives, cells, data processing 25. "Your work": • devices or any other media which are used with a. Means: electronically controlled equipment. (1) Work or operations performed by you or 21."Suit" means a civil proceeding in which on your behalf; and damages because of "bodily injury", "property (2) Materials, parts or equipment furnished in damage" or "personal and advertising injury" to which this insurance applies are alleged. "Suit" connection with such work or operations. includes: b. Includes a. An arbitration proceeding in which such (1) Warranties or representations made at damages are claimed and to which the any time with respect to the fitness, . insured must submit or does submit with our quality, durability, performance or use of consent; or "your work", and b. Any other alternative dispute resolution (2) The providing of or failure to provide proceeding in which such damages are warnings or instructions. claimed and to which the insured submits with our consent. 22."Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23."Volunteer worker" means a person who a. Is not your"employee"; b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. • 24."Your product": a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a)You; (b)Others trading under your name; or (c)A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product"; and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. HG 00 01 09 16 Page 21 of 21 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CONTRACTORS BROAD FORM ENDORSEMENT - TEXAS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART INDEX 1. Alienated Premises Coverage 1 2. Damage To Your Work 1 3 Contractors Limited Professional Liability 1 4. Per Project and Per Location General Aggregate Limits Of Insurance 2 5. Medical Payments Coverage- Including Products-Completed Operations 3 6. Injury To Employee's Reputation With Respect To Incidental Medical Malpractice 3 7. Bodily Injury Employee Suits 3 8. Consolidated Insurance (Wrap-Up) Program 3 9. Access Or Disclosure Of Confidential Or Personal Information And Data-Related Liability 4 10. Supplementary Payments 5 11. Notice of Cancellation to Certificate Holders 5 12. Contractual Liability Coverage For Personal And Advertising Injury 5 13. Insured Contract Definition 6 1. ALIENATED PREMISES COVERAGE This provision does not apply if exclusion I. Exclusion j. Damage To Property of Section I - Damage To Your Work has been otherwise Coverage A is amended as follows: modified by endorsement. a. The following exception to the exclusion is 3. CONTRACTORS LIMITED PROFESSIONAL deleted: LIABILITY Paragraph(2) of this exclusion does not apply The following exclusion is added to Paragraph 2., if the premises are "your work' and were Exclusions of Section I - Coverage A - Bodily never occupied, rented or held for rental by Injury And Property Damage Liability and to Paragraph 2., Exclusions of Section I - you. Coverage B - Personal And Advertising Injury b. This exception is replaced by the following: Liability: Paragraph(2) of this exclusion does not apply This insurance does not apply to "bodily injury", if the premises are"your work". "property damage" or "personal and advertising 2. DAMAGE TO YOUR WORK injury" arising out of the rendering of or failure to Exclusion I. Damage To Your Work of Section I - render any professional services by you with Coverage A is replaced by the following: respect to your providing engineering, architectural or surveying services in your I. Damage to Your Work capacity as an engineer, architect or surveyor. "Property damage" to that particular part of Professional services include: "your work"that must be restored, repaired or (1) The preparing, approving, or failing to prepare replaced because "your work"was incorrectly or approve, maps, shop drawings, opinions, performed and included in the "products- reports, surveys, field orders, change orders, completed operations hazard". or drawings and specifications; and This exclusion does not apply if the damaged (2) Supervisory or inspection activities performed work or the work performed incorrectly was as a part of any related architectural or performed on your behalf by a subcontractor. engineering activities. Form HS 24 24 03 17 Page 1 of 6 ©2017, The Hartford This exclusion applies even if the claims against operations hazard", and for medical any insured allege negligence or other expenses under Coverage C regardless wrongdoing in the supervision, hiring, of the number of; employment, training or monitoring of others by a. s that insured, if the "occurrence" which caused the Insureds; "bodily injury' or "property damage", or the b. Claims made or"suits" brought; or offense which caused the "personal and c. Persons or organizations making advertising injury", involved the rendering of or claims or bringing "suits". failure to render any professional services by you 3. Any payments made under Coverage A with respect to your providing engineering, for damages or under Coverage C for architectural or surveying services in your medical expenses shall reduce the Per capacity as an engineer, architect or surveyor. Project General Aggregate Limit,for that This exclusion does not apply to your operations "project" or the Per Location General in connection with construction work performed by Aggregate for that "location", whichever you or on your behalf. applies. Such payments shall not reduce However, this exception to the exclusion will not the General Aggregate Limit shown in the apply if you are in the business or profession of Declarations the Per Project General providing the professional services described Aggregate Limit for any other"project", or above independent from the construction work the Per Location General Aggregate Limit performed by you or on your behalf. for any other"location". In the event this insurance applies to any injury 4. The limits shown in the Declarations for damage, loss, cost or expense covered by Each Occurrence, Damage To Premises Professional Liability insurance issued by a Rented To You and Medical Expense company unaffiliated with us, then the insurance continue to apply. However, instead of afforded under this Coverage Part is excess over being subject to the General Aggregate such other valid and . collectible Professional Limit shown in the Declarations such Liability insurance (including any deductible or limits will be subject to the applicable Per self-insured retention portion thereof), and any Project General Aggregate Limit if other valid and collectible insurance available to attributable only to ongoing operations at Cuk the insured whether primary, excess, contingent a single "project" or the Per Location or on any other basis. General Aggregate if attributable only to 4. PER PROJECT AND PER LOCATION ongoing operations at a single "location". GENERAL AGGREGATE LIMITS OF B. For all sums which the insured becomes INSURANCE legally obligated to pay as damages caused by "occurrences" under Section I - Coverage A. For all sums which the insured becomes A and for all medical expenses caused by legally obligated to pay as damages caused accidents under Section I - Coverage C , by "occurrences" under Section I - Coverage which cannot be attributed only to ongoing A, and for all medical expenses caused by operations at a single "project" or a single accidents under Section I - Coverage C, "location"; which can be attributed only to ongoing operations at a single "project" or a single 1. Any payments made under Coverage A "location"; for damages or under Coverage C for medical expenses shall reduce the 1. A separate, Per Project General amount available under the General Aggregate Limit or a separate Per Aggregate Limit or the Products- Location General Aggregate Limit applies Completed Operations Aggregate Limit, to each "project" or "location", whichever whichever is applicable; and is applicable. The Per Project General Aggregate Limit and Per Location 2. Such payments shall not reduce any Per Aggregate Limit is equal to the amount of Project General Aggregate Limit or any the General Aggregate Limit shown in the Per Location General Aggregate Limit. Declarations. C. When coverage for liability arising out of the 2. The Per Project General Aggregate Limit "products-completed operations hazard" is or the Per Location General Aggregate provided, any payments for damages because Limit, whichever applies, is the most we of "bodily injury" or "property damage" Cwill pay for the sum of all damages under included in the products completed Coverage A. except damages because of operations hazard" will reduce the Products- "bodily injury" or "property damage" Completed Operations Aggregate Limit, and included in the "products-completed not reduce the General Aggregate Limit,or Page 2 of 6 Form HS 24 24 03 17 any Per Project General Aggregate Limit or (3) The injured person submits to any Per Location General Aggregate Limit. examination, at our expense, by D. The provisions of Section III - Limits Of physicians of our choice as often as Insurance not otherwise modified by this we reasonably require. endorsement shall continue to apply as 6. INJURY TO EMPLOYEE'S REPUTATION WITH stipulated. RESPECT TO INCIDENTAL MEDICAL E. For the purposes of Paragraph 4, the MALPRACTICE following definitions apply: A. The following is added to paragraph 1.e. of "Project" means a premises an insured does the Insuring Agreement- Coverage A: not own or rent and where such insured (3) With respect to incidental medical performs construction-related operations. malpractice, "bodily injury" includes Each "project" involving the same or damages claimed for injury to emotions or connecting lots, or premises whose reputation of an "employee" arising out of connection is separated by a street, roadway, the rendering or failure to render waterway or right-of-wayrailroad shall be professional health care services as a considered a single "project". If a "project"has physician, dentist, nurse, emergency been abandoned and then restarted, or if the medical technician or paramedic services. authorized contracting parties deviate from B. The following exclusion is added to Coverage plans, blueprints, designs, specifications or B-Personal and Advertising Injury: timetables, the "project"shall be considered a "Personal and advertising injury arising out of single "project". "Project" does not include a the rendering or failure to render professional premises that is a"location". health care services as a physician, dentist, "Location" means a premises an insured owns nurse, emergency medical technician or or rents and where such insured performs paramedic. business operations other than construction- 7. BODILY INJURY EMPLOYEE SUITS related operations. Each "location" involving the same or connecting lots, or premises A. "Bodily injury" as listed in paragraph 2.a.(1) of whose connection is separated by a street, Section II - Who Is An Insured, does not roadway, waterway or right-of-way railroad apply to 2.a.(1)(a)through 2.a.(1)(c). shall be considered a single "location." B. Part a. of Paragraph 4. Nonowned "Location" does not include a premises that is Watercraft in Section II -Who Is An Insured a"project'. does not apply. This provision does not apply if the Per Project and 8. CONSOLIDATED INSURANCE (WRAP-UP) the Per Location General Aggregate Limit has been PROGRAMS otherwise modified by endorsement. The following exclusion is added to Section 5. MEDICAL PAYMENTS COVERAGE- INCLUDING Coverage A: PRODUCTS-COMPLETED OPERATIONS This insurance does not apply to any "bodily injury" Paragraph 1.a. of the Insuring Agreement - or "property damage" arising out of any 'Wrap Coverage C is replaced by the following: project or premises" where an insured under this 1. Insuring Agreement policy is also an insured under a commercial general liability (CGL) policy included within a "consolidated a. We will pay medical expenses as described below for "bodily injury" caused insurance (wrap-up) program." This exclusion by n accident: applies even if the limits of insurance for such "consolidated insurance (wrap-up) program" are (1) On premises you own or rent; exhausted or not collected for any reason, including (2) On ways next to premises you own or bankruptcy or insolvency of the insurer providing rent; coverage for the "consolidated insurance (wrap-up) (3) Because of your operations; or program". This exclusion also applies if the CGL (4) Included within the definition of the coverage afforded under the "consolidated "products completed operations insurance (wrap-up) program" is narrower in scope hazard;" than the coverage provided by this policy. provided that: This exclusion does not apply to: (1) The accident takes place in the A. Products-Completed Operations Hazard "coverage territory" and during the Exception policy period; "Bodily injury" or "property damage" arising (2) The expenses are incurred and out of an insured's operations at or in reported to us within three years of connection with a "wrap project or premises" the date of the accident; and when such "bodily injury" or "property Form HS 24 24 03 17 Page 3 of 6 damage" commences after the "products- connection with a 'Wrap project or premises", in completed operations hazard" coverage or order to replace or repair an insured's completed any completed operations extension coverage work. provided by the applicable "consolidated "Punch list work" means work performed by an insurance (wrap-up) program" has ended or is insured at or in connection with a "wrap project or no longer in effect. premises" in order to complete the work called for B. Excluded Operations Exception in an insured's contract for the "wrap project or "Bodily injury" or "property damage" arising premises". out of an insured's operations at or in 9. ACCESS OR DISCLOSURE OF CONFIDENTIAL connection with a 'Wrap project or premises" OR PERSONAL INFORMATION AND DATA- to the extent the applicable "consolidated RELATED LIABILITY insurance (wrap-up) program" does not apply A. Exclusion p. of Section I - Coverage A - to those operations. Bodily Injury And Property Damage Liability C. Off-Site Location Exception is replaced by the following: "Bodily injury" or "property damage" resulting p. Access Or Disclosure Of Confidential from an insured's operations at or in Or Personal Information And Data- connection with a 'Wrap project or premises" • Related Liability at a location to which the applicable Damages arisingout of: 9 "consolidated insurance (wrap-up) program" (1) Any access to or disclosure of any does not apply. person's or organization's confidential D. Repair Work And Punch List Work or personal information, including Exception patents, trade secrets, processing "Bodily injury" or "property damage" resulting methods, customer lists, financial from "repair work" or "punch list work" at a information, credit card information, 'Wrap project or premises" but only when the health information or any other type of applicable "consolidated insurance (wrap-up) nonpublic information; or program" does not apply or no longer applies (2) the loss of, loss of use of, damage to, to such "repair work'or"punch list work". corruption of, inability to access, or This exception does not apply to the cost of inability to manipulate "electronic performing such "repair work" or "punch list data" that does not result from work", or to the "repair work" or "punch list physical injury to tangible property. work"itself. This exclusion applies even if damages E. Additional Insured Extension are claimed for notification costs, credit "Bodily injury" or "property damage" for which monitoring expenses, forensic expenses, you are solely an additional insured under the public relations expenses or any other "consolidated insurance (wrap-up) program". loss cost or expense incurred by you or The coverage provided under Paragraphs 8.A others arising out of that which is through 8.E. above is subject to all terms described in Paragraph(1) or(2)above. conditions and exclusions of this policy. However, unless Paragraph (1) above purposes of Paragraph 8., the following applies, this exclusion does not apply to For orni uns apply: liability for damages because of "bodily defiPp y: injury". 'Consolidated insurance (wrap-up) program" B. The following is added to Paragraph 2. means any agreement or arrangement, including Exclusions of Section I - Coverage B - any contractor-controlled, owner-controlled or Personal and Advertising Injury: similar insurance program under which one or more contractor(s) working on a specified project 2. Exclusion are insured under one or more commercial general This insurance does not apply to: liability (CGL) policies issued by a specified carrier Access Or Disclosure Of Confidential for injury or damage arising out of operations Or Personal Information conducted in connection with or necessary or "Personal and advertising injury" arising incidental to the project. out of any access to or disclosure of any 'Wrap project or premises" means any premises person's or organization's confidential or or construction project subject to a "consolidated personal information, including patents, insurance (wrap-up) program". trade secrets, processing methods, "Repair work" means service, maintenance, customer lists, financial information, credit correction, repair, replacement work, or periodic card information, health information or inspection performed by an insured at or in any other type of nonpublic information. Page 4 of 6 Form HS 24 24 0317 This exclusion applies even if damages 10. SUPPLEMENTARY PAYMENTS are claimed for notification costs, credit In the Supplementary Payments - Coverages A monitoring expenses, forensic expenses, and B provision: public relations expenses or any other loss, cost or expense incurred by you or The limit for the cost of bail bonds in increased to others arising out of any access to or $2 500. disclosure of any person's or 11. NOTICE OF CANCELLATION TO CERTIFICATE organization's confidential or personal HOLDER(S) information. This policy is subject to the following additional C. The following paragraph is added to Section Conditions: III -Limits Of Insurance: A. If this policy is cancelled by the Company, Subject to Paragraph 5. Each Occurrence other than for nonpayment of premium, notice Limit, the most we will pay under Coverage of such cancellation will be provided at least A for "property damage" because of all loss of thirty (30) days in advance of the cancellation "electronic data" arising out of any one effective date to the certificate holder(s) with "occurrence" is $100,000, unless modified by mailing addresses on file with the agent of endorsement. record or the Company. D. The following definition is added to Section V B. If this policy is cancelled by the Company for -Definitions: nonpayment of premium, or by the insured, "Electronic data" means information, facts or notice of such cancellation will be provided programs: within (10) days of the cancellation effective a. Stored as or on; date to the certificate holder(s) with mailing addresses on file with the agent of record or b. Created or used on;or the Company. c. Transmitted to or from; If notice is mailed, proof of mailing to the last computer software, (including systems and known mailing address of the certificate holder(s) applications software) hard or floppy disks, on file with the agent of record or the Company CD-ROMS, tapes, drives, cells, data will be sufficient proof of notice. processing devices or any other media which Any notification rights provided by this are used with electronically controlled endorsement apply only to active certificate equipment. holder(s) who were issued a certificate of E. For the purposes of the coverage provided by insurance applicable to this policy's term. this provision, the definition of "property Failure to provide such notice to the certificate damage" in Section V - Definitions is holder(s) will not amend or extend the date the replaced by the following: cancellation becomes effective, nor will it negate "Property damage"means: cancellation of the policy. Failure to send notice shall impose no liability of any kind upon the a. Physical injury to tangible property, Company or its agents or representatives. including all resulting loss of use of that property. All such loss of use shall be 12. CONTRACTUAL LIABILITY COVERAGE FOR deemed to occur at the time of the PERSONAL AND ADVERTISING INJURY physical injury that caused it; Exclusion e. of SECTION I - COVERAGE B b. Loss of use of tangible property that is not PERSONAL AND ADVERTISING INJURY physically injured. All such loss of use LIABILITY is replaced by the following: shall be deemed to occur at the time of This insurance does not apply to: the "occurrence"that caused it; or e. Contractual Liability c. Loss of, loss of use of, damage to, "Personal and advertising injury"for which the corruption of, inability to access, or insured has assumed liability in a contract or inability to properly manipulate "electronic agreement. This exclusion does not apply to data", resulting from physical injury to liability for damages: tangible property. All such loss of "electronic data"shall be deemed to occur (1) That the insured would have in the at the time of the "occurrence" that absence of the contract or agreement; or caused it. (2) Assumed in a contract or agreement that For the purposes of this insurance, "electronic is an "insured contract", provided the data"is not tangible property. "personal and advertising injury" occurs subsequent to the execution of the Form HS 24 24 03 17 Page 6 of 6 contract or agreement. Solely for the Paragraph f. includes that part of any purposes of liability assumed in an contract or agreement that indemnifies a "insured contract", reasonable attorney railroad for "bodily injury", "property fees and necessary litigation expenses damage", or "personal and advertising incurred by or for a party other than an injury" arising out of construction or insured are deemed to be damages demolition operations, within 50 feet of because of "personal and advertising any railroad property and affecting any injury", provided: railroad bridge or trestle, tracks, road- (a) Liability to such party for, or for the beds, tunnel, underpass or crossing. cost of, that party's defense has also However, Paragraph f. does not include been assumed in the same "insured that part of any contract or agreement: contract"; and (1) That indemnifies an architect, (b) Such attorney fees and litigation engineer or surveyor for injury or expenses are for defense of that party damage arising out of: against a civil or alternative dispute (a) Preparing, approving, or failing to resolution proceeding in which prepare or approve, maps, shop damages to which this insurance drawings, opinions, reports, applies are alleged. surveys, field orders, change 13. INSURED CONTRACT DEFINITION orders or drawings and a. INSURED CONTRACT- CONSTRUCTION specifications; or OPERATIONS AND MUNICIPAL WORK (b) Giving directions or instructions, Paragraph d. of the definition of "insured or failing to give them, if that is contract" in Section V - Definitions is the primary cause of the injury or deleted and replaced by the following: damage; or An obligation, as required by ordinance (2) Under which the insured, if an to indemnify a municipality. architect, engineer or surveyor, b. CONTRACTUAL LIABILITY assumes liability for an injury or damage arising out of the insured's Paragraph f. of the definition of "insured rendering or failure to render contract" is deleted and replaced by the professional services, including those following: listed in (1) above and supervisory, That part of any other contract or inspection, architectural or agreement pertaining to your business engineering activities. (including an indemnification of a All other terms and conditions in the policy remain municipality in connection with work unchanged. performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury", "property damage", or "personal and advertising injury" to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Page 6 of 6 Form HS 24 24 03 17 This SPECIAL MULTI-FLEX POLICY is provided by the stock insurance company(s) of The Hartford Insurance Group, shown below. COMMON POLICY DECLARATIONS POLICY NUMBER: 61 UEA QI0258 S5 THE RENEWAL OF: 61 UEA QI0258 HARTFORD Named Insured and Mailing Address: DUROTECH, INC. (No.,Street,Town,State,Zip Code) 11931 WICKCHESTER LN STE 205 HOUSTON , TX 77043 (HARRIS COUNTY) Policy Period: From o5/31/18 To 05/31/19 12:01 A.M. , Standard time at your mailing address shown above. In return for the payment of the premium, and subject to all of the terms of this policy,we agree with you to provide insurance as stated in this policy. The Coverage Parts that are a part of this policy are listed below. The Advance Premium shown may be subject to adjustment. Total Advance Premium: Coverage Part and Insurance Company Summary Advance Premium COMMERCIAL AUTO TRUMBULL INSURANCE COMPANY ONE HARTFORD PLAZA HARTFORD, CT 06155 TEXAS ABTPA FEE Form Numbers of Coverage Parts, Forms and Endorsements that are a part of this policy and that are not listed in the Coverage Parts. HM0001 IL00171198 HM99011185 IH12040312 IH99400409 IH99410409 IL00210908 HA00250615 • Agent/Broker Name: MCGRIFF SEIBELS & WILLIAMS INC `- Countersigned by d'"ea--,X Ca rt+' rz_.; 05/30/18 (Where required by law) Authorized Representative Date Form HM 00 10 01 07 COMMERCIAL AUTOMOBILE COVERAGE PART - DECLARATIONS THE BUSINESS AUTO COVERAGE FORM ,THE POLICY NUMBER: 61 UEA QI0258 This COMMERCIAL AUTOMOBILE COVERAGE PART consists of: A. This Declarations Form; B. Business Auto Coverage Form; and C. Any Endorsements issued to be a part of this Coverage Form and listed below. ITEM ONE-NAMED INSURED AND ADDRESS The Named Insured is stated on the Common Policy Declarations. AUDIT PERIOD: • Except in this Declarations, when we use the word "Declarations" in this Coverage Part, we mean this "Declarations"or the"Common Policy Declarations". Form Numbers of Coverage Forms, Endorsements and Schedules that are part of this Coverage Part: HA00040302 HA00340614 HA00120615T CA00011013 HA21020614 CA22641013 CA21091013 CA01211013 CA01961013 CA01981013 CA99231013 CA99951013 HA00240614 HA20070614 HA99080614 ag-979-71-6:0-3-rn IH12011185 IH12011185 IH12011185 Form HA 00 25 06 15 Page 1 of 4 ©2015,The Hartford (Includes copyrighted material of Insurance Services Office, Inc.,with its permission.) COMMERCIAL AUTOMOBILE HA 99 16 03 12 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM To the extent that the provisions of this endorsement provide broader benefits to the "insured" than other provisions of the Coverage Form, the provisions of this endorsement apply. 1. BROAD FORM INSURED d. Any "employee" of yours while using a A. Subsidiaries and Newly Acquired or covered "auto" you don't own, hire or Formed Organizations borrow in your business or your The Named Insured shown in the personal affairs. Declarations is amended to include: C. Lessors as Insureds (1) Any legal business entity other than a Paragraph A.1. WHO IS AN INSURED -of partnership or joint venture, formed as a Section I I - Liability Coverage is amended to subsidiary in which you have an add: ownership interest of more than 50% on e. The lessor of a covered "auto" while the the effective date of the Coverage Form. "auto" is leased to you under a written However, the Named Insured does not agreement if: include any subsidiary that is an (1) The agreement requires you to "insured" under any other automobile policy or would be an "insured" under provide direct primary insurance for such a policy but for its termination or the lessor and the exhaustion of its Limit of Insurance. (2) The"auto"is leased without a driver. (2) Any organization that is acquired or Such a leased "auto" will be considered a formed by you and over which you covered "auto" you own and not a covered maintain majority ownership. However, "auto"you hire. the Named Insured does not include any D. [A3aitwnal;lnsured ifRequired;by Confac newly formed or acquired organization: (1) Paragraph A.1. -WHO IS AN INSURED (a) That is a partnership or joint - of Section II - Liability Coverage is • venture, amended to add: (b) That is an "insured" under any other f. When you have agreed, in a written policy, contract or written agreement,that a (c) That has exhausted its Limit of person or organization be added as Insurance under any other policy, or an additional insured on your (d) 180 days or more after its business auto policy, such person or acquisition or formation by you, organization is an"insured", but only unless you have given us notice of to the extent such person or the acquisition or formation. organization is liable for "bodily • Coverage does not apply to "bodily injury" or "property damage" caused injury" or"property damage" that results by the conduct of an "insured" under from an "accident" that occurred before paragraphs a. or b. of Who Is An you formed or acquired the organization. Insured with regard to the ownership, maintenance or use of a B. Employees as Insureds covered"auto." Paragraph A.1. -WHO IS AN INSURED -of SECTION II - LIABILITY COVERAGE is amended to add: ©2011, The Hartford(Includes copyrighted material Form HA 9916 0312 of ISO Properties, Inc.,with its permission.) Page 1 of 5 The insurance afforded to any such E. Primary and Non-Contributory if additional insured applies only if the Required by Contract ANN "bodily injury" or "property damage" Only with respect to insurance provided to occurs: an additional insured in 1.D. - Additional (1) During the policy period, and Insured If Required by Contract, the • (2) Subsequent to the execution of such following provisions apply: written contract, and (3) Primary Insurance When Required By (3) Prior to the expiration of the period Contract of time that the written contract This insurance is primary if you have requires such insurance be provided agreed in a written contract or written to the additional insured. agreement that this insurance be (2) How Limits Apply primary. If other insurance is also primary, we will share with all that other If you have agreed in a written contract insurance by the method described in - or written agreement that another Other Insurance 5.d. person or organization be added as an additional insured on your policy, the (4) Primary And Non-Contributory To Other most we will pay on behalf of such Insurance When Required By Contract additional insured is the lesser of: If you have agreed in a written contract (a) The limits of insurance specified in or written agreement that this insurance the written contract or written is primary and non-contributory with the agreement; or additional insured's own insurance, this (b) The Limits of Insurance shown in insurance is primary and we will not seek contribution from that other • the Declarations. insurance. Such amount shall be a part of and not Paragraphs(3) and (4) do not apply to other in addition to Limits of Insurance shown insurance to which the additional insured in the Declarations and described in this has been added as an additional insured. Section. 00/1. (3) Additional Insureds Other Insurance When this insurance is excess, we will have no duty to defend the insured against any "suit" if If we cover a claim or "suit" under this any other insurer has a duty to defend the Coverage Part that may also be covered insured against that "suit". If no other insurer by other insurance available to an defends, we will undertake to do so, but we will • additional insured, such additional be entitled to the insured's rights against all insured must submit such claim or"suit" those other insurers. to the other insurer for defense and When this insurance is excess over other indemnity. insurance, we will pay only our share of the However, this provision does not apply amount of the loss, if any, that exceeds the sum to the extent that you have agreed in a of: written contract or written agreement (1) The total amount that all such other that this insurance is primary and non- insurance would pay for the loss in the contributory with the additional insured's absence of this insurance; and • own insurance. (4) Duties in The Event Of Accident, Claim, (2) The total of all deductible and self-insured Suit or Loss amounts under all that other insurance. If you have agreed in a written contract We will share the remaining loss, if any, by the method described in Other Insurance 5.d. or written agreement that another person or organization be added as an 2. AUTOS RENTED BY EMPLOYEES additional insured on your policy, the Any "auto" hired or rented by your "employee" additional insured shall be required to on your behalf and at your direction will be comply with the provisions in LOSS considered an"auto"you hire. • CONDITIONS 2. - DUTIES IN THE The OTHER INSURANCE Condition is amended EVENT OF ACCIDENT, CLAIM , SUIT by adding the following: OR LOSS — OF SECTION IV — BUSINESS AUTO CONDITIONS, in the same manner as the Named Insured. ©2011, The Hartford (Includes copyrighted material Form HA 99 16 0312 of ISO Properties, Inc.,with its permission.) Page 2 of 5 If an "employee's" personal insurance also 5. PHYSICAL DAMAGE - ADDITIONAL applies on an excess basis to a covered "auto" TEMPORARY TRANSPORTATION EXPENSE (111 hired or rented by your "employee" on your COVERAGE • behalf and at your direction, this insurance will Paragraph A.4.a. of SECTION III - PHYSICAL be primary to the "employee's" personal DAMAGE COVERAGE is amended to provide a insurance, limit of $50 per day and a maximum limit of 3. AMENDED FELLOW EMPLOYEE EXCLUSION $1,000. EXCLUSION 5. - FELLOW EMPLOYEE - of 6. LOAN/LEASE GAP COVERAGE SECTION II - LIABILITY COVERAGE does not Under SECTION III - PHYSICAL DAMAGE apply if you have workers' compensation COVERAGE, in the event of a total "loss" to a insurance yin-force covering all of your covered "auto", we will pay your additional legal "employees". obligation for any difference between the actual Coverage is excess over any other collectible cash value of the "auto" at the time of the "loss" insurance. and the"outstanding balance"of the loan/lease. 4. HIRED AUTO PHYSICAL DAMAGE COVERAGE "Outstanding balance" means the amount you If hired "autos" are covered "autos" for Liability owe on the loan/lease at the time of"loss" less Coverage and if Comprehensive, Specified any amounts representing taxes; overdue Causes of Loss, or Collision coverages are payments; penalties, interest or charges provided under this Coverage Form for any resulting from overdue payments; additional "auto" you own, then the Physical Damage mileage charges; excess wear and tear charges; Coverages provided are extended to "autos"you lease termination fees; security deposits not • hire or borrow, subject to the following limit, returned by the lessor; costs for extended The most we will pay for "loss" to any hired warranties, credit life Insurance, health, accident or disability insurance purchased with the loan or "auto"is: lease; and carry-over balances from previous (1) $100,000; loans or leases. (2) The actual cash value of the damaged or 7. AIRBAG COVERAGE stolen property at the time of the"loss"; or Under Paragraph B. EXCLUSIONS - of 'am` (3) The cost of repairing or replacing the SECTION III - PHYSICAL DAMAGE damaged or stolen property, COVERAGE, the following is added: • whichever is smallest, minus a deductible. The The exclusion relating to mechanical breakdown deductible will be equal to the largest deductible does not apply to the accidental discharge of an applicable to any *owned "auto" for that airbag. coverage. No deductible applies to"loss"caused 8. ELECTRONIC EQUIPMENT - BROADENED by fire or lightning. Hired Auto Physical Damage COVERAGE coverage is excess over any other collectible insurance. Subject to the above limit, deductible a. The exceptions to Paragraphs B.4 - and excess provisions, we will provide coverage EXCLUSIONS - of SECTION III - PHYSICAL equal to the broadest coverage applicable to any DAMAGE COVERAGE are replaced by the covered"auto"you own. following: We will also cover loss of use of the hired"auto" Exclusions 4.c. and 4.d. do not apply to if it results from an "accident", you are legally equipment designed to be operated solely liable and the lessor incurs an actual financial by use of the power from the "auto's" loss, subject to a maximum of $1000 per electrical system that, at the time of"loss", "accident". is: This extension of coverage does not apply to (1) Permanently installed in or upon any "auto" you hire or borrow from any of your the covered"auto"; "employees", partners (if you are a partnership), (2) Removable from a housing unit members (if you are a limited liability company), which is permanently installed in or members of their households. or upon the covered"auto"; (3) An integral part of the same unit housing any electronic equipment described in Paragraphs (1)and(2) above;or ©2011, The Hartford(Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc., with its permission.) Page 3 of 5 (4) Necessary for the normal If another Hartford Financial Services Group, operation of the covered"auto"or Inc. company policy or coverage form that is not the monitoring of the covered an automobile policy or coverage form applies to "auto's"operating system. the same"accident", the following applies: b.Section III — Version CA 00 01 03 10 of the (1) If the deductible under this Business Auto Business Auto Coverage Form, Physical Coverage Form is the smaller (or smallest) Damage Coverage, Limit of Insurance, deductible, it will be waived; Paragraph C.2 and Version CA 00 01 10 01 of (2) If the deductible under this Business Auto the Business Auto Coverage Form, Physical Coverage Form is not the smaller (or • Damage Coverage, Limit of Insurance, smallest) deductible, it will be reduced by Paragraph C are each amended to add the the amount of the smaller (or smallest) following: deductible. $1,500 is the most we will pay for"loss" in 12. AMENDED DUTIES IN THE EVENT OF any one "accident" to all electronic ACCIDENT, CLAIM, SUIT OR LOSS equipment(other than equipment designed solely for the reproduction of sound, and The requirement in LOSS CONDITIONS 2.a. - accessories used with such equipment) DUTIES IN THE EVENT OF ACCIDENT,CLAIM, that reproduces, receives or transmits SUIT OR LOSS - of SECTION IV - BUSINESS audio, visual or data signals which, at the AUTO CONDITIONS that you must notify us of • time of"loss", is: an "accident" applies only when the"accident" is known to: (1) Permanently installed in or upon (1) You, if you are an individual; the covered "auto" in a housing, opening or other location that is not (2) A partner, if you are a partnership; normally used by the "auto" (3) A member, if you are a limited liability manufacturer for the installation of company; or such equipment; (4) An executive officer or insurance manager, if (2) Removable from a permanently you are a corporation. installed housing unit as described 13. UNINTENTIONAL FAILURE TO DISCLOSE in Paragraph 2.a. above or is an HAZARDS integral part of that equipment; or (3)An integral part of such equipment. If you unintentionally fail to disclose any hazards existing at the inception date of your policy, we c.For each covered "auto", should loss be limited will not deny coverage under this Coverage to electronic equipment only, our obligation to Form because of such failure. pay for, repair, return or replace damaged or 14. HIRED AUTO-COVERAGE TERRITORY stolen electronic equipment will be reduced by the applicable deductible shown in the Paragraph e. of GENERAL CONDITIONS 7. - Declarations, or $250, whichever deductible is POLICY PERIOD, COVERAGE TERRITORY - • less. of SECTION IV - BUSINESS AUTO 9. EXTRA EXPENSE - BROADENED CONDITIONS is replaced by the following: COVERAGE e. For short-term hired "autos", the coverage Under Paragraph A. -COVERAGE-of SECTION territory with respect to Liability Coverage is III - PHYSICAL DAMAGE COVERAGE we will anywhere in the world provided that if the pay for the expense of returning a stolen covered "insured's" responsibility to pay damages for "bodily to you. injury" or "property damage" is determined in a"suit,"the"suit" is brought in 10. GLASS REPAIR-WAIVER OF DEDUCTIBLE the United States of America, the territories Under Paragraph D.-DEDUCTIBLE-of SECTION and possessions of the United States of III - PHYSICAL DAMAGE COVERAGE, the America, Puerto Rico or Canada or in a following is added: settlement we agree to. No deductible applies to glass damage if the t1 . WAIUER40F SUBROGATCONj glass is repaired rather than replaced. TRANSFER OF RIGHTS OF RECOVERY 11. TWO OR MORE DEDUCTIBLES AGAINST OTHERS TO US - of SECTION IV - Under Paragraph D.-DEDUCTIBLE-of SECTION BUSINESS AUTO CONDITIONS is amended by III - PHYSICAL DAMAGE COVERAGE, the adding the following: following is added: • ©2011, The Hartford(Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc.,with its permission.) Page 4 of 5 We waive any right of recovery we may have c,Regardless of the number of autos deemed a against any person or organization with whom total loss, the most we will pay under this C you have a written contract that requires such Hybrid, Electric, or Natural Gas Vehicle waiver because of payments we make for Payment Coverage provision for any one damages under this Coverage Form. "loss"is$10,000. 16. RESULTANT MENTAL ANGUISH COVERAGE For the purposes of the coverage provision, The definition of "bodily injury" in SECTION V- a.A "non-hybrid" auto is defined as an auto that . DEFINITIONS is replaced by the following: uses only an internal combustion engine to "Bodily injury" means bodily injury, sickness or move the auto but does not include autos disease sustained by any person, including powered solely by electricity or natural gas. mental anguish or death resulting from any of b.A "hybrid" auto is defined as an auto with an these. internal combustion engine and one or more 17. EXTENDED CANCELLATION CONDITION electric motors; and that uses the internal Paragraph 2. of the COMMON POLICY combustion engine and one or more electric CONDITIONS - CANCELLATION - applies motors to move the auto, or the internal combustion engine to charge one or more except as follows: electric motors,which move the auto. If we cancel for any reason other than 19. VEHICLE WRAP COVERAGE nonpayment of premium, we will mail or deliver to the first Named Insured written notice of In the event of a total loss to an "auto"for which cancellation at least 60 days before the effective Comprehensive, Specified Causes of Loss, or date of cancellation. Collision coverages are provided under this 18. HYBRID, ELECTRIC, OR NATURAL GAS Coverage Form, then such Physical Damage VEHICLE PAYMENT COVERAGE Coverages are amended to add the following: In the event of a total loss to a "non-hybrid" auto In addition to the actual cash value of the"auto", we will pay up to $1,000 for vinyl vehicle wraps for which Comprehensive, Specified Causes of Loss, which are displayed on the covered "auto" at the or Collision coverages are provided under this Coverage Form, then such Physical time of total loss. Regardless of the number of autos deemed a total loss, the most we will pay Damage Coverages are amended as follows: under this Vehicle Wrap Coverage provision for a.If the auto is replaced with a "hybrid" auto or any one "loss" is $5,000. For purposes of this an auto powered solely by electricity or natural coverage provision, signs or other graphics gas, we will pay an additional 10%, to a painted or magnetically affixed to the vehicle are maximum of$2,500, of the "non-hybrid" auto's not considered vehicle wraps. actual cash value or replacement cost, whichever is less, • b.The auto must be replaced and a copy of a bill of sale or new lease agreement received by us within 60 calendar days of the date of"loss," • • ©2011,The Hartford (Includes copyrighted material Form HA 9916 0312 of ISO Properties, Inc.,with its permission.) Page 5 of 5 4f2si+m THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NOTICE OF CANCELLATION TO CERTIFICATE HOLDER(S) This policy is subject to the following additional If notice is mailed, proof of mailing to the last known Conditions: mailing address of the certificate holder(s) on file with A. If this policy is cancelled by the Company, other the agent of record or the Company will be sufficient than for nonpayment of premium, notice of such proof of notice. cancellation will be provided at least thirty (30) Any notification rights provided by this endorsement days in advance of the cancellation effective date apply only to active certificate holder(s) who were to the certificate holder(s) with mailing addresses issued a certificate of insurance applicable to this on file with the agent of record or the Company. policy's term. B. If this policy is cancelled by the Company for Failure to provide such notice to the certificate nonpayment of premium, or by the insured, notice holder(s) will not amend or extend the date the of such cancellation will be provided within (10) cancellation becomes effective, nor will it negate days of the cancellation effective date to the cancellation of the policy. Failure to send notice shall certificate holder(s) with mailing addresses on file impose no liability of any kind upon the Company or its with the agent of record or the Company. agents or representatives. Form IH 0313 0611 Page 1 of 1 © 2011, The Hartford • THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT Policy Number: 61 WEA Q10215 Endorsement Number: Effective Date: 05/31/18 Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address: DUROTECH, INC • 11931 WICKCHESTER LN STE 205 HOUSTON TX 77043 This endorsement applies only to the insurance provided respect to bodily injury arising out of the operations by the policy because Texas is shown in Item 3.A. of the described in the Schedule where you are required by a Information Page. written contract to obtain this waiver from us. We have the right to recover our payments from anyone This endorsement shall not operate directly or indirectly liable for an injury covered by this policy. We will not to benefit anyone not named in the Schedule. enforce our right against the person or organization The premium for this endorsement is shown in the named in the Schedule, but this waiver applies only with Schedule. Schedule 1. ( ) Special Waiver Name of person or organization (X) Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: All Texas Operations 3. Premium: The premium charge for this endorsement shall be 2 percent of the premium developed on payroll in connection with work performed for the above person(s)or organization(s) arising out of the operations described. 4. Advance Premium: Form WC 42 03 04 B Printed in U.S.A. Process Date: 05/30/18 Policy Expiration Date: 05/31/19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS NOTICE OF MATERIAL CHANGE ENDORSEMENT Policy Number: 61 WEA Q10215 Endorsement Number: Effective Date: 05/31/18 Effective hour is the same as stated on the Information.Page of the policy. Named Insured and Address: DUROTECH, INC 11931 WICKCHESTER LN STE 205 HOUSTON TX 77043 This endorsement applies only to the insurance provided by the policy because Texas is shown in item 3.A. of the Information Page. In the event of "cancellation or other material change of the policy, We will mail advance notice to the person or organization named in the Schedule. The number of days advance notice is shown in the Schedule. his endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. SCHEDULE 1. Number of days advance notice: 60 2. Notice will be mailed to: ALL CERT HOLDERS ON FILE WITH AGENT 11931 WICKCHESTER LN STE 205 Countersigned by Authorized Representative Form WC 42 06 01 Printed in U.S.A. Process Date:05/30/18 Policy Expiration Date: 05/31/19 EXHIBIT B PERFORMANCE BOND tigikk STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally,by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of , 20 , (the "Contract") to commence and complete the construction of certain improvements described as follows: [Official project name] [Project limits] City of Pearland,Texas COP PN: [X##### (Obtain from City Project Manager)] BID NO.: [??-??? Obtain from City Purchasing Officer)] (1.6' which Contract, including the Contract Documents as defined therein, 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 said Contract Work and shall in all respects duly and faithfully observe and perform all and singular the covenants, conditions, and agreements in and by said Contract agreed and covenanted by the Principal to be observed and performed, and according to the true intent and meaning of said Contract 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 Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder. 12/2007 00610- 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_ Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. END OF SECTION 12/2007 00610-2 of 2 EXHIBIT C PAYMENT BOND STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of , 20_, (the "Contract") to commence and complete the construction of certain improvements described as follows: [Official project name] [Project limits] City of Pearland,Texas COP PN: [X##### (Obtain from City Project Manager)] BID NO.: [??-??? (Obtain from City Purchasing Officer)] which Contract, including the Contract Documents as defined therein, 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 or 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 Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder. 07/2006 00611 - 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_ Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. END OF SECTION 07/2006 00611 -2 of 2