HomeMy WebLinkAboutR2026-131 20260810RESOLUTION NO. R2026-131
A Resolution of the City Council of the City of Pearland, Texas, awarding a
construction services contract to Lucas Construction Company, Inc.
associated with the Shadycrest and Creekview Subdivision Drainage
Improvement Project (DR2401), Creekview and Shadycrest Transite Pipe Water
Line Replacement Project (WA2405), Shadycrest and Creekview Subdivision
Sanitary Sewer Rehabilitation Project (WW2405), in the estimated amount of
$13,297,609.00.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. City Council hereby awards a construction services contract to Lucas
Construction Company, Inc. associated with the Shadycrest and Creekview Subdivision Drainage
Improvement Project (DR2401), Creekview and Shadycrest Transite Pipe Water Line Replacement
Project (WA2405), Shadycrest and Creekview Subdivision Sanitary Sewer Rehabilitation Project
(WW2405), in the estimated amount of $13,297,609.00
Section 2. That the City Manager or his designee is hereby authorized to execute and
the City Secretary to attest a contract for such construction services.
PASSED, APPROVED and ADOPTED this on the 10th day of August, A.D., 2026.
________________________________
QUENTIN WILTZ
MAYOR
ATTEST:
________________________________
FRANCES AGUILAR, TRMC, MMC
CITY SECRETARY
APPROVED AS TO FORM:
________________________________
LAWRENCE G. PROVINS
CITY ATTORNEY
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Section 00500
STANDARD FORM OF AGREEMENT
THIS AGREEMENT is by and between City of Pearland (hereinafter called OWNER or City) and
(hereinafter called CONTRACTOR).
OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree
as follows:
Article 1. WORK
CONTRACTOR shall complete all work as specified or indicated in or reasonably inferable
from the Contract Documents (hereinafter the “Work”). The Work is generally described as
follows:
Shadycrest and Creekview Drainage & Paving, Water Line and
Wastewater Improvements Project
City of Pearland, Texas
COP PN: DR 2401, WA 2405, & WW 2405
BID NO.: ITB: 74-26
Article 2. ENGINEER
The Work has been designed by Douglas Bradford, PE, ARKK Engineers, LLC at 7322
Southwest Freeway, Suite 1040, Houston TX 77074, 713-400-2755 who is hereinafter called
ENGINEER and who is to assume all duties and responsibilities and have the rights and
authority assigned to ENGINEER in the Contract Documents in connection with completion
of the Work in accordance with the Contract Documents.
Article 3. CONTRACT TIME
3.1 The Work will be Substantially Complete (as defined in Article 1 of the General
Conditions) within seven hundred twenty (720) days (including weekends and
holidays) from the date when the Contract Time commences to run as provided in
paragraph 5.01 of the General Conditions (as revised in the Special Conditions if
applicable), and completed and ready for Final Payment within seven hundred fifty
(750) days from the date when the Contract Time commences to run. No work will
be allowed on Sundays.
3.2 Liquidated Damages. OWNER and CONTRACTOR recognize that time is of the
essence of this Agreement and that OWNER will suffer financial loss if the Work is
not completed within the times specified in paragraph 3.1 above, plus any extensions
thereof allowed in accordance with Article 5 of the General Conditions. OWNER
and CONTRACTOR also recognize the delays, expense, and difficulties involved in
proving in a legal or arbitration preceding the actual loss suffered by OWNER if the
Work is not completed on time. Accordingly, instead of requiring any such proof,
OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as
Lucas Construction Company, Inc.
Exhibit A
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a penalty) CONTRACTOR shall pay OWNER two thousand dollars ($2,000.00) for
each day that expires after the time specified in paragraph 3.1 for Substantial
Completion until the Work is substantially complete. After Substantial Completion,
if CONTRACTOR shall neglect, refuse or fail to complete the remaining Work
within the time set out in the Certificate of Substantial Completion or any proper
extension thereof granted by OWNER, CONTRACTOR shall pay OWNER two
thousand dollars ($2,000.00) for each day that expires after the time specified in the
Certificate of Substantial Completion for completion and readiness for Final
Payment.
3.3 Inspection Time. Working hours for the Pearland Inspection personnel are from 7:30
a.m. to 4:30 p.m., Monday through Friday, excluding City approved holidays. The
Contractor shall notify the OWNER of any required inspection overtime work at least
48 hours in advance and shall pay the overtime wages for the required City
inspections.
Article 4. CONTRACT PRICE
4.1 OWNER shall pay CONTRACTOR for completion of the Work in strict accordance
with the Contract Documents in current funds $_____________ (the “Contract
Price”).
The Contract Price includes the Base Bid as accepted by OWNER as shown in
Document 00300 – Bid Proposal.
Article 5. PAYMENT PROCEDURES
CONTRACTOR shall submit Applications for Payment in accordance with Section 6.0
“Measurement and Payment” of the General Conditions. Application for Payment will be
processed by ENGINEER as provided in the General Conditions.
5.1 Progress Payments. OWNER shall make progress payments on account of the
Contract Price on the basis of CONTRACTOR’s Application for Payment as
recommended by ENGINEER as provided below. All progress payments will be on
the basis of the progress of the Work and actual quantity of Work completed, in
accordance with Article 6 “Measurement and Payment” of the General Conditions.
5.1.1 Prior to Substantial Completion, progress payments will be made in an
amount equal to the percentage or actual quantity of Work complete, but, in
each case, less the aggregate of payments previously made and less such
amounts as ENGINEER shall determine, or OWNER may withhold, in
accordance with the General Conditions. The OWNER shall make payment
within 30 days of receipt of application for payment by the ENGINEER.
5.1.2 Each progress payment shall be less retainage as specified in Paragraph 6.06
of the General Conditions, and further less all previous payments and all
further sums that may be retained by the OWNER under the terms of this
Agreement. It is understood, however, that in case the whole work be near to
completion and some unexpected and unusual delay occurs due to no fault or
13,297,609.00
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neglect on the part of the CONTRACTOR, the OWNER may upon written
recommendation of the ENGINEER pay a reasonable and equitable portion
of the retained percentage to the CONTRACTOR, or the CONTRACTOR at
the OWNER’s option, may be relieved of the obligation to fully complete the
Work and, thereupon, the CONTRACTOR shall receive payment of the
balance due him under the contract subject only to the conditions stated under
“Final Payment.”
5.2 Final Payment. Upon final completion and acceptance of the Work in accordance
with paragraph 6.09 of the General Conditions, OWNER shall pay the remainder of
the Contract Price as recommended by ENGINEER as provided in said paragraph
6.09.
Article 6. INTEREST
Interest on any overdue payment from OWNER to CONTRACTOR shall be paid in
accordance with the provisions of Chapter 2251.025 of the Texas Government Code, as
amended.
Article 7. CONTRACTOR’S REPRESENTATIONS
In order to induce OWNER to enter into this Agreement CONTRACTOR makes the
following representations:
7.1 CONTRACTOR has familiarized himself with the nature and extent of the Contract
Documents, Work, site, locality, and all local conditions and Laws and Regulations
that in any manner may affect cost, progress, performance, or furnishing of the Work.
7.2 CONTRACTOR has studied carefully all available surveys, assessments, reports of
explorations, investigations, and tests of subsurface conditions and drawings of
physical conditions of the site. Such technical reports and drawings are not Contract
Documents, and Owner makes no representations or warranties as to the accuracy of
such documents or information, or to whether or not they are complete,
comprehensive, or all-inclusive.
7.3 CONTRACTOR has obtained and carefully studied (or assumes responsibility for
obtaining and carefully studying) all such examinations, investigations, explorations,
tests, reports, and studies (in addition to or to supplement those referred to in
paragraphs 7.2 above) which pertain to the subsurface or physical conditions at or
contiguous to the site or otherwise may affect the cost, progress, performance or
furnishing of the Work, and CONTRACTOR assumes the risk of such subsurface
and physical conditions, and shall furnish the Work at the Contract Price, within the
Contract Time and in accordance with the other terms and conditions of the Contract
Documents; and no additional examinations, investigations, explorations, tests,
reports, and studies or similar information or data are or will be required by
CONTRACTOR for such purposes.
7.4 CONTRACTOR has reviewed and checked all information and data shown or
indicated on the Contract documents with respect to existing underground facilities
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at or contiguous to the site and assumes responsibility for the accurate location of
said underground facilities. No additional examinations, investigations,
explorations, tests, reports, studies or similar information or data in respect of said
underground facilities are or will be required by CONTRACTOR in order to perform
and finish the Work at the Contract Price, within the Contract Time and in accordance
with the other terms and conditions of the Contract Documents.
7.5 CONTRACTOR has correlated the results of all such observations, examinations,
investigations, explorations, tests, reports, and studies with the terms and conditions
of the Contract Documents.
7.6 CONTRACTOR has given ENGINEER written notice of all conflicts, errors or
discrepancies in the Contract Documents of which Contractor knew or should have
known, and CONTRACTOR shall perform the Work at the Contract Price, within
the Contract Time and in accordance with the other terms and conditions of the
Contract Documents, including any written resolution of any such conflict, error or
discrepancy by ENGINEER. In the event of a conflict that was not brought to the
OWNER’s or ENGINEER’s attention prior to the bid, the CONTRACTOR is
assumed to have bid the most expensive alternative.
Article 8. CONTRACT DOCUMENTS
The Contract Documents, which comprise the entire agreement between OWNER and
CONTRACTOR concerning the Work, consist of the following, each of which are
incorporated herein by reference:
8.1 Standard Form of Agreement (Section 00500).
8.2 Performance, Payment, and/or Maintenance Bonds (Sections 00610, 00611, and
00612).
8.3 General Conditions of Agreement (Section 00700), including Attachment No. 1
Workers’ Compensation Insurance Coverage, Attachment No. 2 Agreement for Final
Payment and Contractor’s Sworn Release, and Attachment No. 3 Owner’s Insurance
Requirements of Contractor.
8.4 Special Conditions of Agreement (Section 00800).
8.5 Plans, consisting of sheets numbered 1 through 195 inclusive with attachments with
each sheet bearing the following general title: Shadycrest and Creekview Drainage
& Paving Improvements Project
8.6 Instructions to Bidders and CONTRACTOR’s Bid Proposal, including any Addenda
referenced therein.
8.7 Technical Specifications for the Work.
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8.8 The following, which may be delivered or issued after this Agreement becomes
effective: Any Change Orders or other documents amending, modifying, or
supplementing the Contract Documents in accordance with the General Conditions.
There are no Contract Documents other than those listed above in this Article 8. The
Contract Documents may only be amended, modified or supplemented as provided in the
General Conditions.
Article 9. MISCELLANEOUS
9.1 Terms used in this Agreement which are defined in Section 1, “Definitions and
Interpretations” of the General Conditions will have the meanings indicated in the
General Conditions.
9.2 No assignment by a party hereto of any rights under or interests in the Contract
Documents will be binding on another party hereto without the written consent of the
party sought to be bound; and specifically but without limitation moneys that may
become due and moneys that are due may not be assigned without such consent
(except to the extent that the effect of this restriction may be limited by law), and
unless specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or responsibility
under the Contract Documents.
9.3 OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and
legal representative to the other party hereto, its partners, successors, assigns and
legal representatives in respect of all covenants, agreements and obligations
contained in the Contract Documents.
9.4 CONTRACTOR agrees to warranty the Work for a period of one (1) year from
Substantial Completion against defects in materials and workmanship.
CONTRACTOR agrees to repair or replace any defective work within this warranty
period immediately unless such repairs require long lead time materials and
equipment in which case CONTRACTOR shall provide an agreeable schedule for
repairs at no additional cost to OWNER.
9.5 The Work will be completed according to the Contract Documents and in accordance
with codes, ordinances, and construction standards of the City of Pearland, and all
applicable laws, codes and regulations of governmental authorities.
9.6 In the event any notice period required under the Contract Documents is found to be
shorter than any minimum period prescribed by applicable law, the notice period
required shall be construed to be the minimum period prescribed by applicable law.
9.7 This Contract and the Contract Documents, insofar as they relate in any part or in any
way to the Work undertaken therein, constitute the entire agreement between the
parties hereto, and it is expressly understood and agreed that there are no agreements
or promises by and between said parties, except as aforesaid, and that any additions
thereto or changes shall be in writing.
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9.8 The provisions of this Contract shall be applied and interpreted in a manner
consistent with each other so as to carry out the purposes and the intent of the parties,
but if for any reason any provision is unenforceable or invalid, such provisions shall
be deemed severed from this Contract and the remaining provisions shall be carried
out with the same force and effect as if the severed provision had not been part of
this Contract.
9.9 The headings of the paragraphs are included solely for the convenience of reference
and if there is any conflict between the headings and the text of this Contract, the
Contract text shall control.
9.10 The waiver of any breach hereof shall not constitute a waiver of any subsequent
breach of the same or any other provision hereof. Failure by the OWNER in any
instance to insist upon observance or performance by CONTRACTOR shall not be
deemed a waiver by CONTRACTOR of any such observance or performance. No
waiver will be binding upon OWNER unless in writing and then will be for the
particular instance only. Payment of any sum by OWNER to CONTRACTOR with
knowledge of any breach or default will not be deemed a waiver of such breach or
default or any other breach or default.
9.11 The CONTRACTOR acknowledges that the OWNER (through its employee
handbook) considers the following to be misconduct that is grounds for termination
of an employee of the OWNER: Any fraud, forgery, misappropriation of funds,
receiving payment for services not performed or for hours not worked, mishandling
or untruthful reporting of money transactions, destruction of assets, embezzlement,
accepting materials of value from vendors, or consultants, and/or collecting
reimbursement of expenses made for the benefit of the OWNER. The
CONTRACTOR agrees that it will not, directly or indirectly; cause an employee of
the OWNER to engage in such misconduct.
9.12 The CONTRACTOR agrees to comply with Appendix A (attached) of the City of
Pearland’s Title VI Nondiscrimination Plan Assurances.
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IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and one to CONTRACTOR.
This Agreement will be effective upon execution and attestation by authorized representatives of the City of Pearland and upon the following date: ___________ _, 20_.
OWNER: CITY OF PEARLAND
By: ___________ _
Title: ___________ _
Date: ___________ _
ATTEST __________ _
CONTRACTOR: Lucas Construction Company, Inc.
By:�
Title: vic£--p(<. £SI04r(
Date: �/:2,� {i,o?Jo' __ _
(Corporate Seal)
ATTEST_�
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Agent for service of process:
END OF SECTION
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City Manager
8/17/2026 | 2:17 PM CDT
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.
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(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.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
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Section 00700
GENERAL CONDITIONS OF AGREEMENT
TABLE OF CONTENTS Page
No.
1.0 DEFINITIONS AND INTERPRETATIONS 1
1.01 Owner, Contractor and Engineer
1.02 Contract Documents
1.03 Subcontractor
1.04 Written Notice
1.05 Work
1.06 Extra Work
1.07 Work Day
1.07-1 Rain Day
1.07-2 Impact Day
1.08 Calendar Day
1.09 Substantially Completed
1.10 Interpretation of Words and Phrases
1.11 Referenced Standards
1.12 Contract Time
1.13 Construction Inspector
1.14 Balancing Change Order
2.0 RIGHTS AND RESPONSIBILITIES OF THE OWNER 4
2.01 No Warranty of Design
2.02 Right of Entry
2.03 Ownership of Plans
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2.04 Changes and Alterations
2.05 Damages
3.0 RIGHTS AND RESPONSIBILITIES OF THE ENGINEER 6
3.01 Owner-Engineer Relationship
3.02 Keeping of Plans and Specifications Accessible
3.03 Preliminary Approval
3.04 Inspection by Engineer
3.05 Determination of Questions and Disputes
3.06 Recommendation of Payment
4.0 RIGHTS AND RESPONSIBILITIES OF THE CONTRACTOR 8
4.01 Independent Contractor
4.02 Contractor’s Understanding
4.03 Laws and Ordinances
4.04 Assignment and Subletting
4.05 Performance and Payment Bonds [and Maintenance Bond]
4.06 Insurance
4.07 Permits and Fees
4.08 Texas State Sales Tax
4.09 Contractor’s Duty and Superintendence
4.10 Character of Workers
4.11 Labor, Equipment, Materials, Construction Plant and Buildings
4.12 Sanitation
4.13 Cleaning and Maintenance
4.14 Performance of Work
4.15 Right of Owner to Accelerate the Work
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4.16 Layout of Work
4.17 Shop Drawings
4.18 Engineer-Contractor Relationship; Observations
4.19 Observation and Testing
4.20 Defects and Their Remedies
4.21 Liability for Proper Performance
4.22 Protection Against Accident To Employees and the Public
4.23 Protection of Adjoining Property
4.24 Protection against Claims of Subcontractors, Laborers, Materialmen,
and Furnishers of Equipment, Machinery and Supplies
4.25 Protection Against Royalties or Patented Invention
4.26 Indemnification
4.27 Losses From Natural Causes
4.28 Guarantee
5.0 PROSECUTION AND PROGRESS 18
5.01 Time and Order of Completion
5.02 Extension of Time
5.03 Hindrances and Delays
5.04 Suspension of Work
5.05 Liquidated Damages for Delay
5.06 Change of Contract Time
5.07 Delays Beyond Owner’s and Contractor’s Control
6.0 MEASUREMENT AND PAYMENT 21
6.01 Discrepancies and Omissions
6.02 Quantities and Measurements
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6.03 Estimated Quantities
6.04 Price of Work
6.05 Payments
6.06 Partial Payments
6.07 Use of Completed Portions & Punchlist
6.08 Substantial Completion
6.08-1
6.09 Final Payment
6.10 Correction of Work Before Final Payment
6.11 Correction of Work After Final Payment
6.12 Payments Withheld
6.13 Delayed Payments
7.0 EXTRA WORK AND CLAIMS 27
7.01 Differing Site Conditions
7.02 Change Orders
7.03 Change Orders
7.04 Request for Work Approval for Work on Non-Work Days
7.05 Minor Changes
7.06 Extra Work
7.07 Time of Filing Claims
8.0 DEFAULT 30
8.01 Default by Contractor
8.02 Supplementation of Contractor Forces
8.03 Cumulative Remedies & Specific Performance
8.04 Cross-Default
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8.05 Insolvency
8.06 Contingent Assignment
8.07 Waiver of Consequential Damages
8.08 Termination for Convenience
8.09 Default by Owner
9.0 DISPUTE RESOLUTION 35
ATTACHMENT NO. 1: WORKERS’ COMPENSATION INSURANCE COVERAGE Al
ATTACHMENT NO. 2: AGREEMENT FOR FINAL PAYMENT AND CONTRACTOR’S
SWORN RELEASE B1
ATTACHMENT NO. 3: OWNER’S INSURANCE REQUIREMENTS OF CONTRACTOR C1
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Section 00700
GENERAL CONDITIONS OF AGREEMENT
1.0 DEFINITIONS AND INTERPRETATIONS
1.01 OWNER, CONTRACTOR AND ENGINEER. The OWNER, the
CONTRACTOR and the ENGINEER are those persons or organizations identified as such in the
Agreement. The term ENGINEER as used in these General Conditions shall refer to the Engineer
or Architect identified in the Agreement, as applicable, and means a person authorized to act as a
representative of the entity designated by the OWNER to provide professional services required in
connection with the preparation of plans and specifications of this Contract. The term
CONSTRUCTION MANAGER as used in these General Conditions shall refer to the
Construction Manager identified in the Agreement, as applicable, and means a person authorized
to act as representative of the entity designated by the OWNER to provide professional services
required in connection with the performance of the work of this Contract. The Owner’s
representative on the project site shall be the CONSTRUCTION MANAGER or ENGINEER as
designated.
1.02 CONTRACT DOCUMENTS. The Contract Documents shall consist of all of the
documents identified in Article 8 of the Standard Form of Agreement, which documents,
excluding such documents as may be delivered or issued after the Effective Date of the
Agreement, as referenced in Article 8, shall be bound together in a Project Manual for the Work.
All references to the “Contract” or the “Agreement” in these General Conditions of Agreement
shall include the Contract Documents.
The Contract Documents are complementary, and what is required by one shall be binding as if
required by all. In the event of any conflict among the Contract Documents, the Contract
Documents shall govern in the following order:
(1) Modifications in writing and signed by both parties, including any Change Orders;
(2) Standard Form of Agreement;
(3) Special Conditions of Agreement;
(4) General Conditions of Agreement, including Attachment No. 1 – Workers’
Compensation Insurance Coverage, Attachment No. 2 – Agreement for Final
Payment and CONTRACTOR’S Sworn Release, and Attachment No. 3 – Owner’s
Insurance Requirements of Contractor;
(5) Addenda, if any;
(6) Plans and Specifications referenced or included in the Project Manual;
(7) Instructions to Bidders;
(8) Bid Proposal; and
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(9) Exhibits: The following Exhibits, if any, attached hereto, are incorporated herein,
and are a part of this Contract:
In the event a conflict or inconsistency remains between or within the Contract Documents, or the
Contract Documents and applicable standards, codes and ordinances, CONTRACTOR shall
provide the greater quantity or better quality, or CONTRACTOR shall comply with the more
stringent requirements, as determined by ENGINEER.
Terms or phrases used in the Contract Documents with a well-known technical or construction
industry meaning shall have such recognized meanings. References to standards, specifications,
manuals or codes of any technical society, organization or association, or to the laws or
regulations of any governmental authority, shall mean the latest in effect on the effective date of
the Contract, unless otherwise stated in the Contract Documents.
1 .03 SUBCONTRACTOR. The term “subcontractor”, as employed herein, includes
those entities having a contract with the CONTRACTOR or a subcontractor for performance of
work on the Project. OWNER shall have no responsibility to any subcontractor for performance of
work on the Project contemplated by these Contract Documents, and any such subcontractor shall
look exclusively to CONTRACTOR for any payments due subcontractor.
1.04 WRITTEN NOTICE. Written Notice shall be deemed to have been duly served if
delivered in person or by electronic means through the Pro-Trak to the individual or to a partner of
the partnership or joint venture, or to an officer of the corporation or company for whom it is
intended, or if delivered at or sent by Certified Mail, Return Receipt Requested, to the last known
business address or registered office of such individual, partnership, joint venture or corporation or
company, or to the address for giving notices listed in the Standard Form of Agreement.
1.05 WORK. Unless otherwise stipulated, the CONTRACTOR shall provide and pay
for all materials, supplies, machinery, equipment, tools, superintendence, labor, services,
insurance, and all water, light, power, fuel, transportation and all other facilities or services of any
nature whatsoever necessary for the execution and completion of the Work described in the
Standard Form of Agreement. Unless otherwise specified, all materials shall be new, and both
workmanship and materials shall be of good quality. The CONTRACTOR shall, if required by the
ENGINEER as representative of the OWNER, furnish satisfactory evidence as to the kind and
quality of materials. Materials or work described in words which so applied have well-known,
technical or trade meaning shall be held to refer to such recognized standards. All work shall be
done and all materials shall be furnished in strict conformity with the Contract Documents.
1.06 EXTRA WORK. The term “Extra Work”, as used in this Contract, shall be
understood to mean and include all work that may be required by the ENGINEER as
representative of the OWNER, to be performed by the CONTRACTOR to accomplish any change,
alteration or addition to the work shown in the plans. Extra work shall be authorized in writing by
the ENGINEER prior to commencement. Extra Work items are paid for on an as needed, as
authorized basis only.
1.07 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
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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. Refer to paragraph 7.04 for procedure to determine cost
for Construction Management and Inspection Services for work on non-work days.
1.07-1 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.
(See 1.12 Contract Time below)
1.07-2 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. (See 1.12
Contract Time below) 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 Contractor and required to complete the work within the Contract Time.
1.08 CALENDAR DAY. A “calendar day” is any day of the week, month or year no
days being excepted. Unless otherwise expressly provided, all references to “day(s)” shall mean
calendar day(s).
1 .09 SUBSTANTIALLY COMPLETED: The terms “Substantially Completed”, or
“Substantially Complete” or “Substantial Completion” as used in this Contract, shall mean that all
major process components of the facility or work have been made suitable for use or occupancy,
including appropriate documentation from the equipment suppliers that all of the individual
components have been installed in accordance with the specifications and manufacturer’s
recommendations, the installations have been approved by the ENGINEER and the items have met
the start-up and testing requirements of the contract documents or is deemed to be in a condition to
serve its intended purpose or requires only minor miscellaneous work and adjustment to achieve
Final Completion and Acceptance as determined by the ENGINEER. Upon compliance with the
above referenced criteria, ENGINEER shall issue a Certificate of Substantial Completion.
PARTIAL SUBSTANTIAL COMPLETION: designation will be given 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 ENGINEER. The ENGINEER shall determine and
make all such designations.
1.10 INTERPRETATION OF WORDS AND PHRASES. Whenever the words
“directed”, “permitted”, “designated”, “required”, “ordered”, “considered necessary”, “prescribed”
or words of like import are used, it shall be understood that the direction, requirement, permission,
order, opinion designation or prescription of the ENGINEER as the OWNER’s representative is
intended. Similarly, the words “approved”, “acceptable”, “satisfactory” or words of like import
shall mean that no exception is taken by ENGINEER, but does not relieve CONTRACTOR of
responsibility for compliance with the Contract Documents.
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Whenever in the Specifications or Plans of the Contract Documents, the terms of description of
various qualities relative to finish, workmanship or other qualities of similar kind which cannot,
from their nature, be specifically and clearly described and specified, but are necessarily described
in general terms, the fulfillment of which must depend on individual judgment, then, in all such
cases, any question of the fulfillment of said Specifications shall be decided by the ENGINEER as
the OWNER’s representative, and said work shall be done in accordance with his interpretations
of the meaning of the words, terms or clauses defining the character of the work.
1.11 REFERENCED STANDARDS. No provision of any referenced standard
specification, or manual shall be effective to change the duties and responsibilities of the Owner,
Engineer, Contractor, or their consultants, employees, or representatives from those set forth in the
Contract Documents, nor shall it be effective to assign to the Engineer or its consultants,
employees, or representatives any duty or authority to supervise or direct the furnishing or
performance of the Work or any duty or authority to undertake responsibilities contrary to
provisions of the Contract Documents.
1.12 CONTRACT TIME The term Contract Time as used herein, refers to the number
of Calendar days provided to complete the work or the date, stated in the Agreement: (i) to achieve
Substantial Completion, and (ii) to complete the Work so that it is ready for final payment as
evidenced by ENGINEER’s written recommendation of final payment in accordance with
Paragraph 6.09 and as modified as a result of any authorized Extensions.
The established Contract Time includes 40 Rain Days per year, based on the average
number of rain days per year for the period of June 1898 to December 1996 as recorded by the
Alvin Weather Center Record. The Contract Time shall only be extended by (a) the addition of
Rain Days equal to the number of actual Rain Days in excess of 40 days per year and (b) the
number of Impact Days granted for delays, in the opinion of the Owner, beyond the control of the
Contractor. The extension of the Contract Time shall be the CONTRACTOR’s sole and exclusive
remedy for delays.
1.13 CONSTRUCTION INSPECTOR The term “Construction Inspector” here in
includes those professionals engaged by the OWNER to ensure CONTRACT work’s compliance
with the specifications and any applicable statutory requirements.
1.14 BALANCING CHANGE ORDER is a change order executed during the close-out
process that may add/remove pay items, or adjust quantities of existing items or remove unused
pay items or quantities Balancing Change Orders are used to reconcile the unit cost of the work
performed or installed by the Contractor.
2.0 RIGHTS AND RESPONSIBILITIES OF THE OWNER
2.01 NO WARRANTY OF DESIGN. It is understood that the OWNER MAKES NO
WARRANTY OF THE ADEQUACY, ACCURACY OR SUFFICIENCY OF THE PLANS AND
SPECIFICATIONS OR ANY OTHER DESIGN DOCUMENTS, AND OWNER HEREBY
EXPRESSLY DISCLAIMS ANY SUCH WARRANTY, EXPRESSED OR IMPLIED. Prior to
commencing each portion of the Work, CONTRACTOR shall carefully study and compare the
relevant Contract Documents, shall observe conditions at the site affecting the Work, and shall
take field measurements of existing conditions related to the Work. Any errors, omissions or
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inconsistencies in the Contract Documents noted by the CONTRACTOR, and/or any variance
between the Contract Documents and applicable codes, standards or ordinances, shall be promptly
reported by CONTRACTOR to ENGINEER in writing as a Request for Information. Work
performed prior to a Request for Information shall be at the Contractor’s risk. If CONTRACTOR
fails to perform its obligations under this paragraph, CONTRACTOR shall pay such costs and
damages to OWNER as would have been avoided if CONTRACTOR had reported any errors,
omissions, inconsistencies or variances in the Contract Documents noted by CONTRACTOR or
which should have been noted by a careful study of the Contract Documents. CONTRACTOR
shall comply with the Contract Documents, all approved modifications thereof and additions and
alterations thereto approved in writing by the OWNER. The burden of proof of such compliance
shall be upon the CONTRACTOR to show that he has complied with the requirements of the
Contract Documents and approved modifications thereof and all approved additions and
alterations, thereto, as the same shall have been interpreted by the ENGINEER.
2.02 RIGHT OF ENTRY. The OWNER reserves the right to enter the property or
location on which the work herein contracted for is to be performed, constructed or installed, for
itself or such agent or agents as it may select, for the purpose of inspecting the work, or for the
purpose of performing, constructing or installing such collateral work as the OWNER may desire.
The OWNER shall have the right to make inspections at all reasonable times, and the
CONTRACTOR hereby waives any claims for extension of time and/or compensation for any loss
or damage if his work shall be delayed by reason of such inspection, performance, construction or
installation of collateral work.
2.03 OWNERSHIP OF PLANS. All plans, specifications and copies thereof furnished
by the OWNER shall not be reused on other work and, with the exception of the sets forming the
part of the signed Contract Documents, are to be returned to the OWNER on request at the
completion of the Work. All plans and models are the property of the OWNER.
2.04 CHANGES AND ALTERATIONS. The CONTRACTOR further agrees that the
Owner may make such changes and alterations, additions and deletions as the OWNER may see
fit, in the Work, including but not limited to changes in line, grade, form, dimensions, plans or
specifications for the Work herein contemplated, or any part thereof, either before or after the
beginning of construction, without affecting the validity of this Contract and the corresponding
Performance and Payment Bonds.
If such changes or alterations or deletions diminish the quantity or the value of the Work to be
done, they shall not constitute the basis for a claim for compensation or damages, including lost or
anticipated profits on the Work that may be affected. If the amount of Work is increased and the
work can fairly be classified under the specifications, such increase shall be paid for according to
the quantity actually done and at the unit price, if any, established for such work under this
Contract, otherwise, such additional work shall be paid for as provided under Article 7 hereof for
Extra Work. In case the OWNER shall make such changes or alterations as shall make useless
any Work already done or material already furnished or used in said Work, then the OWNER shall
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.
2.05 DAMAGES. In the event the OWNER is damaged in the course of the work by
the act, negligence, omission, mistake or default of the CONTRACTOR, or should the
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CONTRACTOR unreasonably delay the progress of the work being done by others on the job so
as to cause loss for which the OWNER becomes liable, then the CONTRACTOR shall reimburse
the OWNER for such loss.
3.0 RIGHTS AND RESPONSIBILITIES OF THE ENGINEER
3.01 OWNER-ENGINEER RELATIONSHIP. The ENGINEER shall serve as the
OWNER’S representative during construction. The duties, responsibilities and limitations on the
authority of the ENGINEER as the OWNER’s representative during construction are set forth in
the Contract Documents; and the ENGINEER shall not have authority to extend the OWNER’s
liability or to bind the OWNER for any additional liability of any nature whatsoever without the
written consent of the OWNER. Any communications by the OWNER to the CONTRACTOR
regarding the Work shall be issued through the ENGINEER.
It is the intent of this Agreement that there shall be no delay in the execution of the Work;
therefore, written decisions or directions rendered by the ENGINEER as the OWNER’s
representative shall be promptly carried out, and any claim arising therefrom shall be resolved as
provided in Article 7. Unless otherwise specified, it is mutually agreed between the parties to this
Agreement that the OWNER’S representative shall have the authority to issue written stop work
orders whenever such stoppage may be necessary to insure the performance of the Work in
accordance with the Contract Documents.
3.02 KEEPING OF PLANS AND SPECIFICATIONS ACCESSIBLE. The
ENGINEER shall furnish the CONTRACTOR with four (4) copies of all Plans and Specifications
without expense to the CONTRACTOR, and the CONTRACTOR shall keep one full size copy of
the same constantly accessible on the job site, with the latest revisions noted thereon. The
CONTRACTOR shall be responsible for preserving the Plans and Specifications, timely and
accurately updated, for reference and review by the OWNER or the ENGINEER and submittal of
redlines during closeout.
3.03 PRELIMINARY APPROVAL. The ENGINEER shall not have the power to
waive the obligations imposed under this Contract for the furnishing by the CONTRACTOR of
new material of good quality, and for good and workmanlike performance of the Work as herein
described, and in full accordance with the Contract Documents, without alteration, deletion or
change. No failure or omission of the OWNER’S representative to discover, object to or condemn
any non-conforming or defective work or material, or to stop work, shall release the
CONTRACTOR from the obligation to fully and properly perform the Contract, including without
limitation, the obligation to at once remove and properly replace any defective work or material at
any time prior to final acceptance, upon discovery of such non-conforming or defective work or
material.
Any questioned Work may be ordered taken up or removed for inspection by the ENGINEER
prior to final acceptance, and if found not to be in accordance with the Contract Documents, all
expense of removing, inspection and repair or replacement shall be borne by the CONTRACTOR;
otherwise the expense thus incurred shall be allowed as Extra Work and shall be paid for by the
OWNER, provided that where inspection or approval is specifically required by the Specifications
prior to performance of certain work, should the CONTRACTOR proceed with such work without
requesting prior inspection or approval, he shall bear all expense of taking up, removing and
replacing this work if so directed by the ENGINEER.
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3.04 INSPECTION BY ENGINEER. The ENGINEER will make periodic visits to the
site to observe the progress and quality of the executed Work and to determine if such Work
generally meets the essential performance and design features and the technical, functional /or
engineering requirements of the Contract Documents, and is in all other respects being performed
in compliance with the Contract Documents. However, the ENGINEER shall not be responsible
for making any detailed, exhaustive, comprehensive or continuous on-site inspections to check the
quality and/or quantity of the work, nor shall the ENGINEER be in any way responsible, directly
or indirectly, for the construction means, methods, techniques, sequences, quality, procedures,
programs, safety precautions or lack of same incident to the Work being performed or any part
thereof. The ENGINEER shall use reasonable care to prevent deviation from the intent and
substance of the Contract Documents by the CONTRACTOR in the performance of the Work and
any part thereof and, on the basis of such on-site observations, will keep the OWNER informed of
the progress of the work and will endeavor to guard the OWNER against defects and deficiencies
in the Work of the CONTRACTOR. Notwithstanding any other provision of this Agreement or
any other Contract Document, the ENGINEER shall not be in any way responsible or liable for
any acts, errors, omissions or negligence of the CONTRACTOR, any subcontractors, agents,
servants or employees or any other person, firm or corporation performing or attempting to
perform any of the Work.
3.05 DETERMINATION OF QUESTIONS AND DISPUTES. In order to prevent
delays and disputes and to discourage litigation, it is agreed that the ENGINEER shall, in all cases,
determine the quantities and qualities of the several kinds of Work, which are to be paid for under
this Contract. The ENGINEER shall address all questions in relation to said Work and the
construction thereof, as well as all claims, disputes and other matters in question between the
CONTRACTOR and the OWNER relating to the execution or progress of the Work or the
interpretation of the Contract Documents. In the event the ENGINEER shall become aware of or
shall receive information that there is a dispute or a possible dispute as to the reasonable
interpretation of the terms and conditions of the Contract Documents, or any other dispute or
question, the ENGINEER shall, within a reasonable time, provide a written interpretation of the
Contract Documents or a written decision on all questions arising relative to the execution of the
Work, copies of which shall be delivered to all parties to the Contract. If the CONTRACTOR or
OWNER desires to take exception to any directions, order, interpretation or instructions of the
ENGINEER, CONTRACTOR or OWNER shall present any such claim to the ENGINEER in
accordance with the provisions of Section 7.07.
3.06 RECOMMENDATION OF PAYMENT. The ENGINEER shall review the
CONTRACTOR’s application for payment and supporting documents, shall determine the amount
owed to the CONTRACTOR and shall provide written recommendation to the OWNER for
payment to the CONTRACTOR in such amount. Such recommendation of payment to
CONTRACTOR shall constitute a representation to the OWNER of the ENGINEER’s judgment
that the work has progressed to the point indicated, to the best of his knowledge, information and
belief; however, such recommendation of an application for payment to CONTRACTOR shall not
be deemed an acceptance of any defective or non-conforming Work. Any recommendation of
payment by the ENGINEER shall be subject to OWNER’s rights to withhold payment under
Section 6.12 and as otherwise provided in the Contract.
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4.0 RIGHTS AND RESPONSIBILITIES OF THE CONTRACTOR
4.01 INDEPENDENT CONTRACTOR. CONTRACTOR is, and shall remain, an
independent contractor, solely responsible for the manner and method of completing the Work
under this Contract, with full and exclusive power and authority to direct, supervise and control
his own employees and to determine the means, method and manner of performing such Work, so
long as such methods comply with the requirements of the Contract Documents, and do not
adversely affect the completed improvements or any other property abutting or adjoining the Work
area, the OWNER and ENGINEER being interested only in the result obtained and conformity of
such completed improvements to the Plans, Specifications and Contract Documents. The fact that
the OWNER or ENGINEER as the Owner’s representative shall have the right to observe
CONTRACTOR’s work during his performance and to carry out the other prerogatives which are
expressly reserved to and vested in the OWNER and the ENGINEER hereunder, is not intended to
and shall not at any time change or affect the status of the CONTRACTOR as an independent
contractor with respect to either the OWNER or the ENGINEER as the OWNER’s representative
or to the CONTRACTOR’s own employees or to any other person, firm or corporation.
4.02 CONTRACTOR’S UNDERSTANDING. It is understood and agreed that the
CONTRACTOR has, by careful examination, satisfied himself as to the nature and location of the
Work, the conformation of the ground, the character, quality and quantity of the materials to be
encountered, the character of equipment and facilities needed preliminary to and during the
prosecution of the Work, the general and local conditions, including but not limited to weather,
access, lay down and storage areas, and all other matters which in any way affect the Work under
this Contract. It is further understood that the CONTRACTOR has satisfied himself as to the
terms, meaning, intent and requirements of all of the Contract Documents, and applicable laws,
codes, regulations and ordinances. CONTRACTOR hereby warrants and represents that it has
taken into consideration all of the foregoing factors, and CONTRACTOR shall perform the Work
for the Contract Price and within the Contract Time. No verbal agreement or conversation with
any officer, agent or employee of the OWNER or the ENGINEER, either before or after the
execution of this Contract, shall affect or modify any of the terms or obligations herein contained.
4.03 LAWS AND ORDINANCES. The CONTRACTOR shall at all times observe and
comply with all federal, state or local laws, codes, ordinances, permits and regulations, regardless
of whether the same are adopted before or after the execution of this Contract, which in any
manner affect the Contract or the work, and shall indemnify, save and hold harmless the OWNER
and the ENGINEER against any claim arising out of the violation of any such laws, ordinances
and regulations, whether by the CONTRACTOR or his agents, employees, subcontractors or
vendors. If the CONTRACTOR observes that the Plans and Specifications are at variance with
federal or state laws or codes or the ordinances or regulations of the City, he shall promptly notify
the ENGINEER in writing, and any necessary changes shall be made as provided in the Contract
for changes in the work. If the CONTRACTOR performs any work knowing it to be contrary to
such laws, codes, ordinances, rules or regulations, or if CONTRACTOR reasonably should have
known of any such violation, and without such notice to the ENGINEER, CONTRACTOR shall
bear all costs arising therefrom.
The OWNER is a Political Subdivision of the State of Texas, and the law from which it derives its
powers, insofar as the same regulates the objects for which, or the manner in which, or the
conditions under which the OWNER may enter into contracts, shall be controlling and shall be
considered as part of this Contract to the same effect as though embodied herein. Neither the act
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of OWNER entering into this Contract, nor OWNER’s performance hereunder, shall constitute a
waiver of any immunity from suit enjoyed by OWNER under applicable law, all such rights and
defenses being hereby expressly reserved, notwithstanding any term or provision herein to the
contrary. The Code of Ordinances and other applicable regulations of the OWNER shall be
deemed to be embodied in this Contract.
The prevailing wage rates applicable to this Project shall be either Document 00811 — Wage
Scale for Engineering Construction, or Document 00813 — Wage Scale for Building
Construction, or both, as set out in the Project Manual.
4.04 ASSIGNMENT AND SUBLETTING. The CONTRACTOR further agrees that he
will retain personal control and will give his personal attention to the fulfillment of this Contract
and that he will not assign, by power of attorney or otherwise, or sublet said Contract, or any
rights, duties or obligations arising thereunder, in whole or in part, without the prior written
consent of the OWNER, and that no part or feature of the Work will be sublet to anyone
objectionable to the ENGINEER or the OWNER. In addition, the OWNER reserves the right to
disapprove the subletting of this Contract or any portion hereof on any basis whatsoever. The
CONTRACTOR further agrees that the subletting of any portion or feature of the Work or
materials required in the performance of this Contract shall not relieve the CONTRACTOR from
his obligations to the OWNER, as provided for by this Agreement.
4.05 PERFORMANCE, PAYMENT AND MAINTENANCE BONDS. In the event the
Contract Price shall be in excess of $25,000.00, the CONTRACTOR shall execute separate
Performance, Payment and Maintenance Bonds, each in the sum of one hundred percent (100%) of
the Contract Price, and each in accordance with the provisions of Chapter 2253 of the Texas
Government Code. If the Contract Price does not exceed $25,000.00, the statutory bonds will not
be required. All required Bonds shall be payable to OWNER and on forms approved by the
OWNER, and shall be executed by a corporate surety in accordance with Article 7.19 -1 of the
Texas Insurance Code. It is agreed that the Contract shall not be in effect until such original
Performance, Payment and Maintenance Bonds are delivered to and approved by the OWNER.
The cost of the premium for the Performance, Payment and Maintenance Bonds, should
Maintenance Bonds be required, shall be included in the CONTRACTOR’s Bid Proposal. All
bonds shall be issued by Texas Department of Insurance approved surety companies.
4.06 INSURANCE. The CONTRACTOR, at his own expense, shall procure, maintain
and keep in force throughout the duration of the Work, and throughout the Guarantee Period,
insurance as specified in Attachment No. 1 hereto with regard to Workers’ Compensation
Insurance, and as specified in Attachment No. 3 hereto with regard to all other Insurance. Such
insurance shall be carried with an insurance company licensed to transact business in the State of
Texas and shall cover all operations in connection with this Contract, whether performed by the
CONTRACTOR or a subcontractor, or others for whom CONTRACTOR is responsible.
4.07 PERMITS AND FEES. Unless otherwise provided in the Contract Documents, the
Contractor shall secure and pay for all permits, licenses, and inspections necessary for proper
execution and completion of the Work, and which are legally required at the time bids are
received. Permits required by the City of Pearland will be issued as a NO FEE permit.
4.08 TEXAS STATE SALES TAX. Materials incorporated into this project are exempt
from State Sales according to provisions of the Texas Tax Code, Chapter 151, Subsection H.
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The Contractor must obtain a limited sales, excise and use tax permit or exemption certificate
which shall enable him to buy the materials to be incorporated into the Work without paying tax at
due time of purchase.
4.09 CONTRACTOR’S DUTY AND SUPERINTENDENCE. The CONTRACTOR
shall give adequate attention to the faithful prosecution and completion of this Contract and shall
keep on the work, during its progress, a competent superintendent and any necessary assistants, all
satisfactory to the ENGINEER as the OWNER’S representative. The superintendent shall
represent the CONTRACTOR in his absence and shall act as the agent of the CONTRACTOR,
and all directions given to him shall be binding as if given to the CONTRACTOR. Adequate
supervision by competent and reasonable representatives of the CONTRACTOR is essential to the
proper performance of the Work, and lack of such supervision shall be an act of default, and
grounds for suspending operations of the CONTRACTOR. The Superintendent cannot be
removed from the project without the consent of the Owner; the Superintendent must speak and
understand the English language; the Superintendent must be on site when any work on the project
is being done, even when a subcontractor is performing the work.
The Work, from its commencement to completion, shall be under the exclusive charge and control
of the CONTRACTOR, and all risk in connection therewith shall be borne by the
CONTRACTOR.
Neither the OWNER nor the ENGINEER as the OWNER’s representative will be responsible for
the acts or omissions of the CONTRACTOR, its subcontractors or any of its agents or employees,
or any other persons performing any of the Work.
4.10 CHARACTER OF WORKERS. The CONTRACTOR agrees to employ only orderly and
competent workers, skillful in the performance of the type of work required under this Contract, to
do the Work, and agrees that whenever the ENGINEER shall inform him in writing that any
worker or workers on the Work are, in his opinion, incompetent, unfaithful or disorderly, or in the
ENGINEER’s opinion, are not using their best efforts for the progress of the Work, such worker
or workers shall be discharged from the Work and shall not again be employed on the Work
without the ENGINEER’s written consent. OWNER reserves the right to bar any person,
subcontractor, or supplier found to be incompetent, unfaithful, disorderly, or not using their best
efforts to progress work or considered to be a threat to the health, safety and welfare to the project
or workforce.
4.11 LABOR, EQUIPMENT, MATERIALS, CONSTRUCTION PLANT, AND
BUILDINGS. The CONTRACTOR shall provide all labor, services, tools, equipment, machinery,
supplies, facilities, utilities and materials necessary in the prosecution and completion of this
Contract where it is not otherwise specifically provided that the OWNER shall furnish same; and
further, the CONTRACTOR shall be responsible for the care, preservation, conservation and
protection of all materials, supplies, machinery, equipment, tools, apparatus, accessories, facilities,
all means of construction and any and all parts of the Work, whether the CONTRACTOR has
been paid, partially paid or not paid for such Work, until the entire Work is completed and
accepted.
The building or placement of structures for housing workers or offices, or the erection of tents or
other forms of protection, will be permitted only with the ENGINEER’s written permission, and at
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such places as the ENGINEER shall direct, and the sanitary conditions of the grounds in or about
such structures shall at all times be maintained in a manner satisfactory to the ENGINEER. Any
structures of any nature constructed, placed or erected by the CONTRACTOR for the purposes
herein set out, shall be the sole responsibility of the CONTRACTOR as to the proper erection,
placement or construction thereof; and the CONTRACTOR agrees to indemnify and hold the
ENGINEER or OWNER harmless from any claims of any nature whatsoever brought against
either of them for damages allegedly sustained by anyone by reason of the erection, placement,
construction or maintenance of CONTRACTOR’s buildings or structures.
4.12 SANITATION. Necessary sanitary conveniences for the use of laborers and others
on the Work site, properly secluded from public observation, shall be constructed and maintained
by the CONTRACTOR in such manner and at such points as shall be approved by the
ENGINEER, and their use shall be strictly enforced. Any structures of any nature constructed or
erected by the CONTRACTOR for the purposes herein set out, shall be the sole responsibility of
the CONTRACTOR as to the proper erection or construction thereof, and the CONTRACTOR
agrees to indemnify and hold the ENGINEER and OWNER harmless from any claims of any
nature whatsoever brought against either of them for damages allegedly sustained by anyone by
reason of the erection, construction or maintenance of CONTRACTOR’s buildings.
4.13 CLEANING AND MAINTENANCE. The CONTRACTOR shall at all times keep
and maintain the premises free from accumulation of debris, trash and waste. The
CONTRACTOR shall remove waste, debris and trash at the end of each work day.
CONTRACTOR shall remove all such debris, trash and waste, tools, scaffolding and surplus
materials, and shall leave the Work broom-clean or its equivalent, upon completion of the Work.
The Work shall be left in good order and condition. In case of dispute, the OWNER may remove
the debris, trash, waste and surplus materials, and charge the cost to the CONTRACTOR.
4.14 PERFORMANCE OF WORK. It is further agreed that it is the intent of this
Contract that all Work must be done and all material must be furnished in accordance with the
generally accepted practice for such materials furnished or work completed, unless otherwise
provided in the Contract Documents.
4.15 RIGHT OF OWNER TO ACCELERATE THE WORK. If at any time the
methods or equipment used by the CONTRACTOR, or the work force supplied are found to be
inadequate to achieve the progress required to Substantially Complete the Work within the
Contract Time, the OWNER or the ENGINEER as the OWNER’s representative, may order the
CONTRACTOR in writing to supplement its forces and/or equipment, or work shifts or overtime,
or otherwise improve its efficiency and rate of progress to achieve Substantial Completion of the
Work within the Contract Time, and the CONTRACTOR shall comply with such order, at its own
cost and expense.
4.16 LAYOUT OF WORK. Except as specifically provided herein, the
CONTRACTOR shall be responsible for laying out work by means of construction surveying and
shall accomplish this work in a manner acceptable to the ENGINEER and in conformance with the
Contract Documents.
4.17 SHOP DRAWINGS. The CONTRACTOR shall submit to the ENGINEER, with
such promptness as to cause no delay in his own Work or in that of any other contractor, six (6)
checked copies, unless otherwise specified, of all shop and/or setting drawings and schedules
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required for the work of the various trades. Contractor will check and approve shop drawings for
compliance with requirements of Contract Documents and will so certify by stamp on each
drawing prior to submittal to ENGINEER. Any drawings submitted without Contractor’s stamp of
approval will not be considered and will be returned to him for proper submission . The
ENGINEER shall pass upon them with reasonable promptness, indicating desired corrections.
The CONTRACTOR shall make any corrections required by the ENGINEER, file with him two
(2) corrected copies and furnish such other copies as may be needed. The ENGINEER’s approval
of such drawings or schedules shall not relieve the CONTRACTOR from responsibility for
deviations from the Contract Documents, unless he has, in writing, called the ENGINEER’s
attention to such deviations at the time of the submission, and the ENGINEER has acknowledged
and accepted such deviations in writing, nor shall it relieve him from responsibility for errors of
any sort in shop drawings or schedules. It shall be the CONTRACTOR’s responsibility to fully
and completely review all shop drawings to ascertain their effect on his ability to perform the
required Contract Work in accordance with the Contract Documents, and within the Contract
Time.
Such review by the ENGINEER shall be for the sole purpose of determining the apparent
sufficiency of said drawings or schedules to result in finished improvements in conformity with
the Contract Documents, and shall not relieve the CONTRACTOR of his duty as an independent
contractor as previously set forth, it being expressly understood and agreed that the ENGINEER
does not assume any duty to pass upon the propriety or adequacy of such drawings or schedules,
or any means or methods reflected thereby, in relation to the safety of either person or property
during CONTRACTOR’s performance hereunder, and any action taken by the ENGINEER shall
not relieve the CONTRACTOR of his responsibility and liability to comply with the Contract
Documents.
OWNER, CONSTRUCTION MANAGER, ENGINEER, and CONTRACTOR shall make all
submittals, review comments, notes, corrections, schedules and updates, testing results, payment
applications, instructions and other communications by means of the OWNER’S Pro-Trak. The
OWNER, ENGINEER and CONTRACTOR shall each retain such hard copies form this system as
are required for their specific record keeping requirements. No documents shall be removed from
this system or destroyed except those being replaced by the systems protocols as a latest version
document.
All requirements for written communications, submittals, comments, instructions or other
documents processed by means of this system shall have the same legal or time sensitive status as
if they had been hand delivered in hard copy to their intended addressee.
4.18 ENGINEER-CONTRACTOR RELATIONSHIP; OBSERVATIONS. It is agreed
by the CONTRACTOR that the ENGINEER, as the OWNER’s representative, shall be and is
hereby authorized to appoint such subordinate engineers, representatives or observers as the said
ENGINEER may from time to time deem proper to observe the materials furnished and the Work
done under this Agreement. The CONTRACTOR shall furnish all reasonable aid and assistance
required by the subordinate engineers, representatives or observers for the proper observation and
examination of the work. The CONTRACTOR shall regard and obey the directions and
instructions of any subordinate engineers, representatives or observers so appointed, when such
directions and instructions are consistent with the obligations of this Agreement and the Contract
Documents, provided, however, should the CONTRACTOR object to any orders by any
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subordinate engineer, representative or observer, the CONTRACTOR may, within three (3) days,
make written appeal to the ENGINEER for his decision.
4.19 OBSERVATION AND TESTING. The OWNER or the ENGINEER as the
OWNER’s representative shall have the right at all reasonable times to observe, inspect and test
the Work. The CONTRACTOR shall make all necessary arrangements and provide proper
facilities and access for such observation, inspection and testing at any location wherever Work is
in preparation or progress. The CONTRACTOR shall ascertain the scope of any observation,
inspection or testing which may be contemplated by the OWNER or the ENGINEER and shall
give ample notice as to the time each part of the Work will be ready for such observation,
inspection or testing. The OWNER or the ENGINEER may reject any Work found to be defective
or not in accordance with the Contract Documents, regardless of the stage of its completion or the
time or place of discovery of such deficiencies, and regardless of whether the ENGINEER has
previously accepted the Work through oversight or otherwise. If any Work is covered without
approval or consent of the OWNER, it must, if requested by the OWNER or the ENGINEER, be
uncovered for examination, at the sole expense of the CONTRACTOR. In the event that any part
of the Work is being fabricated or manufactured at a location where it is not convenient for the
OWNER or the ENGINEER to make observations of such Work or require testing of said Work,
then in such event, the OWNER or the ENGINEER may require the CONTRACTOR to furnish
the OWNER or the ENGINEER with certificates of inspection, testing or approval made by
independent persons competent to perform such tasks at the location where that part of the work is
being manufactured or fabricated. All such tests will be in accordance with the methods prescribed
by the American Society for Testing and Materials or such other applicable organization as may
be required by law or the Contract Documents.
If any Work, which is required to be inspected, tested or approved, is covered up without written
approval or consent of the OWNER or the ENGINEER, it must, if requested by the OWNER or
the ENGINEER, be uncovered for observation and testing, at the sole expense of the
CONTRACTOR. The cost of all such inspections, tests and approvals shall be borne by the
CONTRACTOR unless otherwise provided herein. Any Work which fails to meet the
requirements of such tests, inspections or approval, and any Work which meets the requirements
of any such tests or approval but does not meet the requirements of the Contract Documents shall
be considered defective. Such defective Work and any other work affected thereby shall be
corrected at the CONTRACTOR’S expense.
Neither observations by the OWNER or by the ENGINEER, nor inspections, certifications, tests
or approvals made by the OWNER, the ENGINEER or other persons authorized under this
Agreement to make such inspections, tests or approvals, shall relieve the CONTRACTOR from
his obligation to perform the Work in accordance with the requirements of the Contract
Documents.
4.20 DEFECTS AND THEIR REMEDIES. It is further agreed that if the Work or any
part thereof or any material brought on the site of the Work for use in the Work or selected for the
same, shall be deemed by the ENGINEER as unsuitable or not in conformity with the Contract
Documents, the CONTRACTOR shall, after receipt of written notice thereof from the
ENGINEER, forthwith remove such material and rebuild or otherwise remedy such Work so that
it shall be in full accordance with this Contract, It is further agreed that any such remedial action
contemplated herein shall be at CONTRACTOR’s expense.
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4.21 LIABILITY FOR PROPER PERFORMANCE. Engineering construction
drawings and specifications, as well as any additional instructions and information concerning the
Work to be performed, passing from or through the ENGINEER, shall not be interpreted as
requiring or allowing the CONTRACTOR to deviate from the Contract Documents, the intent of
such drawings, specifications and any other such instructions being to define with particularity the
agreement of the parties as to Work the CONTRACTOR is to perform. CONTRACTOR shall be
fully and completely liable and contractually bound, at his own expense, for design, construction,
installation and use or non-use of all items and methods incident to the performance of the
Contract, including, without limitation, the adequacy of all temporary supports, shoring, bracing,
scaffolding, machinery or equipment, safety precautions or devices, similar items or devices used
by him during construction, and work performed either directly or incident to construction, and for
all loss, damage or injury incident thereto, either to person or property, whether such damage be
suffered by the ENGINEER, the OWNER or any other person not a party to this Contract.
Any review of Work in progress or any visit or observation during construction, or any
clarification of Contract Documents by the ENGINEER or OWNER, or any agent, employee or
representative of either of them, whether through personal observation on the Project site or by
means of approval of shop drawings for construction or construction processes, or by other means
or methods, is agreed by the CONTRACTOR to be for the purpose of observing the extent and
nature of Work completed or being performed, as measured against the Contract Documents, or
for the purpose of enabling the CONTRACTOR to more fully understand the Contract Documents
so that the completed construction Work will conform thereto, and shall in no way relieve the
CONTRACTOR from full and complete responsibility for proper performance of his Work on the
Project, including, without limitation, the propriety of means and methods of the CONTRACTOR
in performing said Contract, and the adequacy of any designs, plans or other facilities for
accomplishing such performance. Any action by the ENGINEER or the OWNER in visiting or
observing during construction, or any clarification of Contract Documents shall not constitute a
waiver of CONTRACTOR’S liability for damages as herein set out. Deviation by the
CONTRACTOR from Contract Documents, whether called to the CONTRACTOR’s attention or
not, shall in no way relieve CONTRACTOR from his responsibility to complete all work in
accordance with said Contract Documents, and further shall not relieve CONTRACTOR of his
liability for loss, damage or injury as herein set out.
4.22 PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC.
The CONTRACTOR shall be solely responsible for the safety of himself, his employees and
persons entering the project site, as well as for the protection of the improvements being erected
and the property of himself or any other person, as a result of his operations hereunder. The
CONTRACTOR shall take out and procure a policy or policies of Workers’ Compensation
Insurance with an insurance company licensed to transact business in the State of Texas, which
policy shall comply with the Workers’ Compensation laws of the State of Texas. The
CONTRACTOR shall at all times exercise reasonable precautions for the safety of employees and
others on or near the Work and shall comply with all applicable provisions of federal, state and
municipal laws and building and construction codes. All machinery and equipment and other
physical hazards shall be guarded, as a minimum, in accordance with the “Manual of Accident
Prevention in Construction” of the Associated General Contractors of America, except where
incompatible with federal, state or municipal laws or regulations. The CONTRACTOR shall
provide all necessary machinery guards, safe walkways, ladders, bridges, gangplanks, barricades,
fences, traffic control, warning signs and other safety devices.
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No alcoholic beverages, non-prescription drugs, or unsafe practices shall be allowed on the Work
site. CONTRACTOR shall dismiss anyone participating in any of the above from the Work site
for the duration of the Project. Only prescription drug uses with a doctor’s authorization to
perform construction activities shall be allowed on the Work site. Violation of this provision is a
default under the Contract. The use, possession, sale, transfer, purchase or being under the
influence of alcohol, drugs or any other illegal or unlawful substance by CONTRACTOR or
CONTRACTOR’s employees, or CONTRACTOR’s subcontractors and employees at any time at
the Work site or while on company business is prohibited. CONTRACTOR shall institute and
enforce appropriate drug testing guidelines and program.
All accidents or injuries to CONTRACTOR’s employees working on the job site must be reported
verbally and in writing to the ENGINEER immediately, and within no more than eight (8) hours.
The safety precautions actually taken and their adequacy shall be the sole responsibility of the
CONTRACTOR, in his sole discretion as an independent contractor. Inclusion of this paragraph in
the Agreement, as well as any notice which may be given by the OWNER or the ENGINEER as
the OWNER’s representative concerning omissions under thus paragraph as the Work progresses,
are intended as reminders to the CONTRACTOR of his duty and shall not be construed as any
assumption of duty by ENGINEER, or OWNER’s representative to supervise safety precautions
by either the CONTRACTOR or any of his subcontractors.
4.23 PROTECTION OF ADJOINING PROPERTY. The CONTRACTOR shall
employ proper means to protect the adjacent or adjoining property or properties in any way
encountered, which might be injured or seriously affected by any process of construction to be
undertaken under this Agreement, from any damage or injury by reason of said process of
construction; and he shall be liable for any and all claims for such damage on account of his
failure to fully protect all adjacent or adjoining property. THE CONTRACTOR AGREES TO
INDEMNIFY, DEFEND, SAVE AND HOLD HARMLESS THE CONSTRUCTION
MANAGER, OWNER AND ENGINEER AGAINST ANY CLAIM OR CLAIMS FOR
DAMAGES, LOSS, COSTS OR EXPENSES, INCLUDING BUT NOT LIMITED TO
ATTORNEY’S FEES, DUE TO ANY INJURY TO ANY ADJACENT OR ADJOINING
PROPERTY, ARISING OR GROWING OUT OF THE PERFORMANCE OF THE
CONTRACT, REGARDLESS OF WHETHER OR NOT SUCH DAMAGE, LOSS, COST OR
EXPENSE IS CAUSED IN PART BY THE NEGLIGENCE, GROSS NEGLIGENCE OR
STRICT LIABILITY OF OWNER AND/OR ENGINEER.
4.24 PROTECTION AGAINST CLAIMS OF SUBCONTRACTORS, LABORERS,
MATERIALMEN AND FURNISHERS OF MACHINERY, EQUIPMENT AND SUPPLIES.
THE CONTRACTOR AGREES THAT HE WILL PROMPTLY PAY WHEN DUE, AND WILL
INDEMNIFY, SAVE AND HOLD THE OWNER AND THE ENGINEER HARMLESS FROM
ALL CLAIMS GROWING OUT OF THE DEMANDS OF SUBCONTRACTORS, LABORERS,
WORKERS, MECHANICS, MATERIALMEN AND FURNISHERS OF MACHINERY AND
PARTS THEREOF, EQUIPMENT, POWER TOOLS AND ALL SUPPLIES, INCLUDING
COMMISSARY, INCURRED IN THE FURTHERANCE OF THE PERFORMANCE OF THIS
CONTRACT. When so desired by the OWNER, the CONTRACTOR shall furnish satisfactory
evidence that all obligations of the nature hereinabove designated have been paid, discharged or
waived. If the CONTRACTOR fails to do so, then the OWNER may, at the option of the
OWNER, either pay directly any unpaid bills of which the OWNER has written notice, or
withhold from the CONTRACTOR’s unpaid compensation a sum of money deemed reasonably
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sufficient to liquidate any and all such claims until satisfactory evidence is furnished that all
liabilities have been fully discharged, whereupon payments to the CONTRACTOR shall be
resumed in full, in accordance with the terms of this Contract.
Any and all communications between any parties under this paragraph shall be in writing.
Nothing contained in this paragraph or this Agreement shall create, establish or impose any
relationship, contractual or otherwise, between OWNER and any subcontractor, laborer or supplier
of CONTRACTOR, nor shall it create, establish or impose any duty upon OWNER to pay or to
see to the payment of any subcontractor, laborer or supplier of CONTRACTOR.
4.25 PROTECTION AGAINST ROYALTIES OR PATENTED INVENTION. The
CONTRACTOR shall pay all royalties and license fees and shall provide for the use of any
design, device, material or process covered by letters patent or copyright, by suitable legal
agreement with the patentee or owner thereof THE CONTRACTOR SHALL DEFEND ALL
SUITS OR CLAIMS FOR INFRINGEMENT OF ANY PATENT OR COPYRIGHT AND
SHALL INDEMNIFY, SAVE AND HOLD THE OWNER AND THE ENGINEER HARMLESS
FROM ANY LOSS OR LIABILITY ON ACCOUNT THEREOF, EXCEPT SUCH SUITS AND
CLAIMS ARISING OUT OF A PARTICULAR DESIGN, DEVICE, MATERIAL OR PROCESS
OR THE PRODUCT OF A PARTICULAR MANUFACTURER OR MANUFACTURERS
SPECIFIED OR REQUIRED BY THE OWNER; PROVIDED, HOWEVER, IF CHOICE OF
ALTERNATE DESIGN, DEVICE, MATERIAL OR PROCESS IS ALLOWED TO THE
CONTRACTOR, OR IF CONTRACTOR KNEW OR SHOULD HAVE KNOWN OF THE
PATENT OR COPYRIGHT AND FAILED TO PROMPTLY NOTIFY OWNER IN WRITING,
THEN THE CONTRACTOR SHALL INDEMNIFY, DEFEND, SAVE AND HOLD THE
OWNER HARMLESS FROM ANY LOSS OR LIABILITY ON ACCOUNT THEREOF.
4.26 INDEMNIFICATION. THE CONTRACTOR AGREES TO DEFEND,
INDEMNIFY AND HOLD THE ENGINEER AND THE OWNER HARMLESS FROM ANY
CLAIMS OR DEMANDS OF ANY NATURE WHATSOEVER MADE BY ANY EMPLOYEE,
EMPLOYEES, AGENTS OR SUBCONTRACTORS OF CONTRACTOR, OR BY ANY
UNION, TRADE ASSOCIATION, WORKER’S ASSOCIATION OR OTHER GROUPS,
ASSOCIATIONS OR INDIVIDUALS, ALLEGEDLY REPRESENTING EMPLOYEES OF THE
CONTRACTOR, IN ANY DISPUTE BETWEEN THE CONTRACTOR AND HIS
EMPLOYEES, DIRECTLY OR INDIRECTLY INVOLVING, GROWING OUT OF OR
ARISING FROM CLAIMS BY SUCH EMPLOYEES FOR WAGES, SALARY,
COMPENSATION, BENEFITS, WORKING CONDITIONS OR ANY OTHER SIMILAR
COMPLAINT OR CLAIM WHICH MAY BE MADE.
THE CONTRACTOR, HIS SURETIES AND INSURANCE CARRIERS SHALL DEFEND,
INDEMNIFY AND HOLD HARMLESS THE OWNER AND THE ENGINEER AND THEIR
RESPECTIVE OFFICERS, REPRESENTATIVES, AGENTS AND EMPLOYEES FROM AND
AGAINST ALL DAMAGES, CLAIMS, LOSSES, DEMANDS, SUITS, LIABILITIES,
JUDGMENTS AND COSTS OF ANY CHARACTER WHATSOEVER, INCLUDING
REASONABLE ATTORNEY’S FEES AND EXPENSES, AND SHALL BE REQUIRED TO
PAY ANY JUDGMENT THEREFOR, WITH COSTS, WHICH MAY BE OBTAINED
AGAINST THE OWNER AND/OR THE ENGINEER OR ANY OF THEIR OFFICERS,
REPRESENTATIVES, AGENTS OR EMPLOYEES, ARISING OUT OF OR RESULTING
FROM OR ALLEGEDLY ARISING OUT OF OR RESULTING FROM THE PERFORMANCE
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OF THE WORK, PROVIDED THAT ANY SUCH DAMAGES, CLAIM, LOSS, DEMAND,
SUIT, LIABILITY, JUDGMENT, COST OR EXPENSE:
(A) ARISES OUT OF OR RESULTS FROM IN WHOLE OR IN PART, OR
ALLEGEDLY ARISES OUT OF OR RESULTS FROM IN WHOLE OR IN
PART, ANY BREACH OF THIS AGREEMENT OR BREACH OF
WARRANTY BY CONTRACTOR; OR
(B) IS ATTRIBUTABLE TO BODILY INJURY, SICKNESS, DISEASE OR
DEATH OR INJURY TO OR DESTRUCTION OF TANGIBLE PROPERTY,
INCLUDING THE LOSS OF USE RESULTING THEREFROM; AND
IS CAUSED IN WHOLE OR IN PART OR IS ALLEGEDLY CAUSED IN
WHOLE OR IN PART BY ANY NEGLIGENT ACT OR OMISSION OF THE
CONTRACTOR, ANY SUBCONTRACTOR, THEIR AGENTS OR
EMPLOYEES OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY
ANY ONE OF THEM OR ANYONE FOR WHOSE ACTS ANY OF THEM
MAY BE LIABLE, REGARDLESS OF WHETHER OR NOT IT IS CAUSED
IN PART OR ALLEGEDLY CAUSED IN PART BY THE NEGLIGENCE,
GROSS NEGLIGENCE OR STRICT LIABILITY OF OWNER, ENGINEER
AND/OR A PARTY INDEMNIFIED HEREUNDER.
Notwithstanding the foregoing or anything in the Agreement to the contrary, in accordance with
the provisions of Section 130.002 of the Texas Civil Practice and Remedies Code,
CONTRACTOR shall not be obligated to indemnify or hold harmless the ENGINEER, his agents,
servants or employees, from liability for damage that is caused by or results from defects in plans,
designs or specifications prepared, approved or used by the ENGINEER, or negligence of the
ENGINEER in the rendition or conduct of professional duties called for or arising out of any
construction contract and the plans, designs or specifications that are a part of the construction
contract, and arises from personal injury or death, property injury, or any other expense that arises
from personal injury, death, or property injury.
This indemnity agreement is a continuing obligation, and shall survive notwithstanding
completion of the Work, Final Payment, expiration of the warranty period, termination of the
Contract, and abandonment or takeover of the Work.
CONTRACTOR’s indemnification obligations hereunder shall not be limited by a limitation on
amount or type of damages, compensation or benefits payable by or for the CONTRACTOR or a
subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit
acts, and shall not be limited by any limitation on amounts or coverage of insurance provided or to
be provided under this Contract.
4.27 LOSSES FROM NATURAL CAUSES. All loss, cost, expense or damage to the
CONTRACTOR arising out of the nature of the Work to be done or from any unforeseen
circumstances in the prosecution of the same, or from the action of the elements, or from unusual
obstructions or difficulties which may be encountered in the prosecution of the Work, shall be
sustained and borne by the CONTRACTOR at his own cost and expense.
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4.28 GUARANTEE. The CONTRACTOR hereby guarantees all the Work under the
Contract to be free from defects or deficiencies in material in every particular and free from
defects or deficiencies in workmanship; and against unusual damage from proper and usual use;
and agrees to replace or to re-execute without cost to the OWNER such Work as may be found to
be defective, deficient or otherwise not in conformance with the Contract Documents, and to make
good all damages caused to other work or material, due to such defective Work or due to its
required replacement or re-execution. This guarantee shall cover a period of one year from the
date of Substantial Completion or Partial Substantial Completion of Work under the Contract, as
evidenced by the Certificate of Substantial Completion. Neither the Certificate of Substantial
Completion, Final Payment, nor any provision in the Contract Documents shall relieve the
CONTRACTOR of the responsibility for defective, deficient or non-conforming material or
workmanship during the period covered by the guarantee. The one-year period of guarantee will
not limit the OWNER’S other rights under common law with respect to any defects, deficiencies
or non-conforming Work discovered after one year. If this one-year guarantee conflicts with other
warranties or guarantees, the longer period of warranty or guarantee will govern.
5.0 PROSECUTION AND PROGRESS
5.01 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 ENGINEER 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.
The CONTRACTOR shall submit, an updated schedule with every pay estimate for review by the
ENGINEER, 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 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.
5.02 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 ENGINEER shall decide justifies the delay. The CONTRACTOR shall give
the ENGINEER 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
ENGINEER shall submit such written request, together with his written recommendation, to the
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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 Section 01505
MOBILIZATION.
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.
5.03 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 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.
5.04 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.
5.05 LIQUIDATED DAMAGES FOR DELAY: It is understood and agreed that time
is of the essence, and that the CONTRACTOR will commence the Work on the date specified
herein or in any Notice to Proceed, and will Substantially Complete the Work within the Contract
Time. It is expressly understood and agreed, by and between the CONTRACTOR and the
OWNER, that the time for the Substantial Completion of the Work described herein is reasonable
time for the completion of the same, taking into consideration the average climatic range and
conditions and usual industrial conditions prevailing in this locality. The CONTRACTOR further
agrees that a failure to complete on time will cause damage to the OWNER and that such damages
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cannot be accurately measured or that ascertainment will be difficult. Therefore, the parties agree
that for each and every calendar day the Work or any portion thereof shall remain uncompleted
after the expiration of the Contract Time, the CONTRACTOR shall pay, as liquidated damages
and as a reasonable estimate of OWNER’s damages, and not as a penalty, the amount set out in the
Standard Form of Agreement.
However, the foregoing agreement as to liquidated damages constitutes only an agreement by the
OWNER and the CONTRACTOR as to the amount of damages which the OWNER will sustain
by reason of the CONTRACTOR’S failure to complete the work within the Contract Time. Should
the OWNER suffer damage by reason of any other breach by CONTRACTOR, the OWNER may
recover such actual damages in addition to any liquidated damages due.
The OWNER shall have the right to deduct and withhold the amount of any and all such damages
whether it be the minimum amount stipulated above or otherwise, from any monies owing by it to
said CONTRACTOR, or the OWNER may recover such amount from the CONTRACTOR and
the sureties of his bond; all of such remedies shall be cumulative and the OWNER shall not be
required to elect any one nor be deemed to have made an election by proceeding to enforce any
one remedy.
5.06 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 ENGINEER 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
ENGINEER 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.
5.07 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 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
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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.
6.0 MEASUREMENT AND PAYMENT
6.01 DISCREPANCIES AND OMISSIONS. If the CONTRACTOR knows or
reasonably should have known of any discrepancies or omissions in the Contract Documents, he
shall notify the ENGINEER and obtain a clarification by Addendum before the bids are received,
and if no such request is received by the ENGINEER prior to the opening of bids, then it shall be
considered that the CONTRACTOR fully understands the Work to be performed and has provided
sufficient sums in his Bid Proposal to complete the Work in accordance with the Contract
Documents. It is further understood that any request for clarification must be submitted no later
than five (5) days prior to the opening of bids.
6.02 QUANTITIES AND MEASUREMENTS. No extra or customary measurements
of any kind will be allowed, but the actual measured and/or computed length, area, volume,
number and weight only shall be considered, unless otherwise specifically provided.
6.03 ESTIMATED QUANTITIES. This Agreement, including the Contract
Documents, and including any estimates contained therein, is intended to convey all Work to be
done and material to be furnished hereunder. Where the estimated quantities are shown for the
various classes of Work to be done and material to be furnished under this Contract, they are
approximate and are to be used only as a basis for estimating the probable cost of the Work and
for comparing the Bid Proposals offered for the Work. It is understood and agreed that the actual
amount of Work to be done and the materials to be furnished under this Contract may differ from
the estimates and that the items listed or estimated quantities stated, and/or any difference between
estimated and actual Work, shall not give rise to a claim by the CONTRACTOR against the
OWNER for loss, cost, expense, damages, unit price adjustment, quantity differences, unrecovered
overhead or lost or anticipated profits, or other compensation.
6.04 PRICE OF WORK. It is agreed that it is the intent of this Contract that all Work
described in the Bid Proposal, and Contract Documents, is to be done for the prices bid by the
CONTRACTOR and that such prices shall include all appurtenances necessary to complete the
Work in accordance with the intent of these Contract Documents as interpreted by the
ENGINEER, and all costs, expenses, bond and insurance premiums, taxes, overhead, and profit.
In consideration of the furnishing of all the necessary labor, equipment and material and the
completion of all Work by the CONTRACTOR, and upon the completion of all Work and the
delivery of all materials embraced in this Contract in full conformity with the Contract
Documents, the OWNER agrees to pay to the CONTRACTOR the prices set forth in the Standard
Form of Agreement, OWNER and CONTRACTOR agree that the Contract is a unit cost
agreement, unless stated otherwise, and that the final Contract amount is equal to the unit cost
multiplied by the number of units authorized, installed and approved by the Owner.
The OWNER does not assume any obligation to pay for any services or material not
actually authorized and used. The CONTRACTOR hereby agrees to receive such prices as
payment in full for furnishing all materials and all labor required for the aforesaid Work, and for
all expenses incurred by him, and for full performance of the Work and the whole thereof in the
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manner and according to this Agreement, Contract Documents, and the requirements of the
ENGINEER.
6.05 PAYMENTS. No payments made or approvals or certificates given shall be
considered as conclusive evidence of the performance of the Contract, either in whole or in part,
nor shall any certificate, approval or payment be considered as acceptance of defective, deficient
or non-conforming Work. CONTRACTOR shall, at any time requested during the progress of the
Work, furnish the OWNER or the ENGINEER with an affidavit showing the CONTRACTOR’s
total outstanding indebtedness in connection with the Work. Before Final Payment is made, the
CONTRACTOR shall satisfy the OWNER, by affidavit or otherwise, that there are no unpaid
claims due subcontractors, suppliers or laborers by reason of any Work under the Contract.
Acceptance by CONTRACTOR of Final Payment shall constitute a waiver of any and all claims
of whatsoever nature against OWNER, arising out of or related to the Contract, or the Work, or
any acts or omissions of OWNER or ENGINEER, which have not theretofore been timely filed as
provided in this Contract.
6.06 PARTIAL PAYMENTS. When the Contract Price is a lump sum amount, prior to
the first Application for Payment, CONTRACTOR shall submit to ENGINEER for review and
approval a Schedule of Values, which shall fairly allocate the entire Contract Price among the
various portions of the Work and shall be prepared in such form and supported by such data to
substantiate its accuracy as the ENGINEER may reasonably require. The Schedule of Values
shall follow the trade divisions of the Specifications so far as practicable. Upon approval, this
Schedule of Values shall be used by ENGINEER as the basis for reviewing the Contractor’s
Application for Payment. Applications for Payment shall indicate the percentage of completion of
each portion of the Work as of the end of the period covered by the Application for Payment.
When the Contract Price is based on Unit Costs the Contractor shall utilize the Bid Form
Quantities and Unit Costs as the basis of the Pay Application. The Contractor shall develop
individual Pay Applications by accurately recording in progressive order the total accumulated
number of units of work (line items) performed in the Pay Application multiplying that quantity
by the agreed Contract Unit Price to derive a progressive total for each line item of the Work,
If, at any time during the performance of the WORK, the performed quantity, exceeds the
CONTRACT quantity, the CONTRACTOR shall notify the ENGINEER and the OWNER of the
pending discrepancy prior to submitting the Pay Application.
On or before the tenth day of each month, the CONTRACTOR shall prepare and submit to the
ENGINEER, for approval or correction, an application for partial payment, being a statement
showing as completely as practicable, the agreed unit quantities and extended total value of the
Work performed by the CONTRACTOR up to and including the twenty-fifth day of the preceding
month; said statement shall also include the value of all conforming materials to be fabricated into
the Work and stored in accordance with manufacturer's recommendations and as approved by the
OWNER or ENGINEER at the Work site only. No payment will be made for materials stored until
OWNER has approved in writing storage at the Work site. The ENGINEER shall then review
such Schedule of Values or statement of unit quantities and application for partial payment and the
progress of the Work made by the CONTRACTOR and, within ten days after the date
ENGINEER receives CONTRACTOR’s application for payment, if the application is found to be
accurate and correct and the WORK conforming to the requirements of the Contract Documents,
the ENGINEER shall certify the application for partial payment and shall deliver his preliminary
certification for payment to the OWNER and the CONTRACTOR; or, if the ENGINEER or
OWNER finds that CONTRACTOR’s application for payment contains an error or is otherwise
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disputed, the OWNER shall notify CONTRACTOR of such error or dispute in writing by issuance
of a Notification Of Error requesting the correction of the application for payment identifying
those items deemed to be in error. The contractual time for the ENGINEER’S and OWNER’S
review, approval and processing for payment of the Pay Application shall reset once the
CONTRACTOR re-submits a corrected Application for Payment. ENGINEER’S or OWNER’S
Notification of Error to CONTRACTOR that a bona fide dispute for payment exists shall include
a list of the specific reasons for nonpayment or required corrections. All payment applications
made by CONTRACTOR and delivered to ENGINEER and all verifications and certification of
such applications shall be made and transmitted within the project management system and signed
with the appropriate electronic signatures as provided for in the software. Such applications for
payment shall not be considered complete unless accompanied by the CONTRACTOR’S Partial
Waiver of Lien and Payment Affidavit, Section 00615, duly executed by an authorized
representative of the CONTRACTOR and reflecting the correct corresponding amount of the
payment application.
Upon receipt of a Correct and Approved Application for Payment the OWNER shall then pay the
CONTRACTOR, within thirty (30) days of the date of ENGINEER’s receipt of the application for
payment, the undisputed balance due, less applicable retainage, and further less all previous
payments and all further sums that may be retained or withheld by the OWNER under the terms of
this Agreement. CONTRACTOR may submit a corrected application for payment after its receipt
of the ENGINEER’s notice of error or dispute, and such corrected application for payment shall be
reviewed by the ENGINEER and disputed or paid under the same procedure and within the same
time limits set out above.
As a condition of any progress payment under this Agreement, CONTRACTOR shall execute and
deliver to ENGINEER and OWNER a full release of all claims, direct or indirect, at law or in
equity, arising out of or related to the Work to date, excluding retainage or any claims previously
submitted as required under the terms of the Contract, and specifically identified and excluded by
CONTRACTOR in the release.
OWNER shall be entitled to retain from each progress payment five percent (5%) of the amount
thereof. Such retainage shall be retained until Final Completion and satisfaction of all conditions
for Final Payment. It is understood, however, that in case the whole Work be near to completion,
as certified by the ENGINEER, and some unexpected or unusual delay occurs, through no neglect
or fault on the part of the CONTRACTOR, the OWNER may, upon written recommendation of
the ENGINEER, pay a reasonable and equitable portion of the retained percentage to the
CONTRACTOR, or the CONTRACTOR, at the OWNER’S option, may be relieved of the
obligation to fully complete the Work, and thereupon, the CONTRACTOR shall receive, at the
OWNER’S option, payment of the balance due him under the Contract for Work completed in
accordance with the Contract Documents, subject to OWNER’s rights to otherwise withhold or
retain payments, and subject to the conditions set forth under “6.09 FINAL PAYMENT.”
The Owner at its option and in compliance with Texas law may reduce retainage to less than the
above-stated percentages.
6.07 USE OF COMPLETED PORTIONS & PUNCHLIST. The OWNER shall have
the right to take possession of and use any completed or partially completed portions of the Work,
notwithstanding that the time for completing the entire work or such portions may not have
expired; but such taking possession and use shall not be deemed an acceptance of any work not
completed in accordance with the Contract Documents. If such prior use increases the cost of or
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delays the Work, the CONTRACTOR shall promptly and within three (3) days of OWNER’s
taking possession, give OWNER written notice of same, and CONTRACTOR may be entitled to
such extra compensation or extension of time, or both, as may be determined in accordance with
the provisions of this Agreement.
6.08 SUBSTANTIAL COMPLETION. The CONTRACTOR shall notify the OWNER
AND ENGINEER, by letter executed by a duly qualified officer of CONTRACTOR that in
CONTRACTOR’s opinion, the Work of the Contract, or an agreed portion thereof, is
“Substantially Complete”. Such notification shall include a list of all outstanding or incomplete
items. Upon receipt, and within a reasonable time thereafter, of such notice, the ENGINEER and
the CONTRACTOR shall jointly perform a walk-through and inspection of the Work to determine
the status of all or the identified portion of the work, and the ENGINEER shall prepare a detailed
list of unfinished, incomplete, defective and/or non-conforming Work (“Punchlist”). If the
ENGINEER determines that the Work is Substantially Complete in accordance with the Contract
Documents, the ENGINEER shall issue to the OWNER and the CONTRACTOR a Certificate of
Substantial Completion. OWNER shall have seven (7) days after receipt of Certificate to make
written objection to the ENGINEER as to any provision of the Certificate or the attached list of
non-conforming work. If ENGINEER concludes that the Work is not Substantially Complete,
ENGINEER will, within fourteen (14) days, notify CONTRACTOR of the reason he believes the
Work is not Substantially Complete. Upon Substantial Completion of the Work, ENGINEER will
deliver to OWNER and CONTRACTOR a written recommendation as to division of
responsibilities, pending final payment and acceptance, with respect to security, maintenance,
utilities and damage to the Work, except as otherwise provided in the Certificate of Substantial
Completion. NEITHER THE SUBSTANTIAL COMPLETION OF THE WORK, NOR THE
OMISSION OF AN ITEM FROM THE PUNCHLIST, SHALL EXCUSE THE CONTRACTOR
FROM PERFORMING ALL OF THE WORK UNDERTAKEN, WHETHER OF A MINOR OR
MAJOR NATURE, AND THEREBY COMPLETING THE WORK IN ACCORDANCE WITH
THE CONTRACT DOCUMENTS. The Certificate of Substantial Completion shall establish the
time period within which CONTRACTOR shall complete the Work for Final Acceptance by the
Owner and ENGINEER.
6.08-1 OWNER shall have the right to exclude CONTRACTOR from the Work after the
date of Substantial Completion, for security requirement reasons. OWNER may establish an
access procedure to facilitate CONTRACTOR’s uninterrupted access to the Work for the purposes
of completing and correcting all items on the Punchlist in an expeditious manner.
6.09 FINAL PAYMENT. Final payment of the Retainage withheld from the Contract
Price shall be made by the OWNER to the CONTRACTOR at such time as:
(a) the Work, including all Change Orders and including all Punchlist work, has been
fully completed in strict accordance with the Contract Documents;
(b) the Contract has been fully performed except for the CONTRACTOR’s
responsibility to correct nonconforming Work during the warranty period set forth
in the Contract Documents, and to satisfy other requirements, if any, which
necessarily survive final payment;
(c) CONTRACTOR delivers to OWNER a certificate evidencing that insurance
required by the Contract Documents to remain in force after final payment is
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currently in effect and will not be cancelled or allowed to expire until at least 30
days prior written notice has been given to OWNER;
(d) CONTRACTOR delivers to OWNER a Consent of Surety, if any, to final payment;
(e) CONTRACTOR delivers to OWNER a complete set of As-Built Drawings,
reflecting all deviations from the Plans, Specifications and approved shop drawings
in the Work actually constructed, and delivers all maintenance and operating
manuals and/or instructions;
(f) CONTRACTOR delivers to OWNER all building certificates required prior to
occupancy and all other required inspections / approvals / acceptances by city,
county, state governmental entities or other authorities having jurisdiction;
(g) CONTRACTOR delivers to OWNER assignments of all guarantees and warranties
from subcontractors, vendors, suppliers or manufacturers, as well as names,
addresses and telephone numbers of contacts for each subcontractor, vendor,
supplier or manufacturer;
(h) CONTRACTOR removes all equipment, tools, temporary facilities, surplus
materials and rubbish from the site, and final cleans the site to OWNER’s
satisfaction;
(i) CONTRACTOR delivers to OWNER a Full and Final Release and Affidavit of
Bills Paid in the form attached hereto as Attachment No. 2, executed by
CONTRACTOR;
(j) CONTRACTOR delivers to OWNER all other documentation required to be
submitted to OWNER pursuant to the Contract Documents, including but not
limited to any special guarantees or warranties, operation and maintenance
manuals, etc’. in each case in a form satisfactory to OWNER as determined in
OWNER’s sole discretion; and
(k) The Final Application for Payment has been approved by the ENGINEER and
OWNER.
Acceptance of Final Payment by the CONTRACTOR shall constitute a waiver of all claims by
CONTRACTOR against OWNER other than any claims previously made in writing by
CONTRACTOR against OWNER, and still unsettled, and except for claims arising out of third
party actions, cross-claims and counterclaims. No interest shall be due or payable by OWNER to
CONTRACTOR on any sums retained or withheld by OWNER pursuant to the terms or
provisions of the Contract Documents, except as otherwise provided by applicable law. Neither
the Certificate of Substantial Completion nor the Final Payment nor possession or acceptance of
the Work shall relieve the CONTRACTOR of its obligation for correction of defective or non-
conforming Work, or for fulfillment of any warranty, which may be required by law or by the
Contract Documents.
6.10 CORRECTION OF WORK BEFORE FINAL PAYMENT. The CONTRACTOR
shall promptly remove from OWNER’s premises all materials, equipment or Work which is
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defective or otherwise not in conformance with the Contract Documents, whether actually
incorporated in the Work or not, and CONTRACTOR shall, at his own expense, promptly replace
such materials, equipment or Work with other materials conforming to the requirements of the
Contract. The CONTRACTOR shall also bear the expense of restoring all work of
CONTRACTOR or other contractors damaged by any such removal or replacement. If
CONTRACTOR does not remove and replace any such unsuitable Work within ten (10) business
days after receipt of a written notice from the OWNER or the ENGINEER, the OWNER may
remove, replace and remedy such work at CONTRACTOR’s expense.
6.11 CORRECTION OF WORK AFTER FINAL PAYMENT. If within one (1) year
from the date of Substantial Completion or such longer period of time as may be prescribed by law
or by the terms of any applicable special warranty required by the Contract Documents, any of the
Work is found to be defective or not in accordance with the Contract Documents, CONTRACTOR
shall, at its sole cost, correct it and any other work affected thereby promptly after receipt of a
written notice from OWNER to do so. In addition, CONTRACTOR shall be responsible for any
damage to building contents, when such damage results from the CONTRACTOR’s use of faulty
materials or defective workmanship; to the extent such damage is not covered by OWNER’s
insurance. This warranty period shall renew and recommence for each corrected item of Work
upon completion of the remedial work. This time period for correction by CONTRACTOR is in
addition to, and not in lieu of, all warranties or remedies, which exist at common law or by statute.
These warranty obligations shall survive the termination of this Contract, and shall be enforceable
by a decree of specific performance, in addition to such other rights and remedies available to
OWNER at law or in equity.
6.12 PAYMENTS WITHHELD. The OWNER may withhold, or on account of
subsequently discovered evidence nullify and demand immediate repayment of, the whole or part
of any certificate for payment or payment, to such extent as may be necessary to protect OWNER
from loss on account of:
(a) Defective or non-conforming Work not remedied;
(b) Claims filed or reasonable evidence indicating probable filing of claims;
(c) Failure of the CONTRACTOR to make payments promptly to subcontractors or
for material or labor;
(d) Damage to another contractor, OWNER, existing improvements on the site, or to
adjacent or adjoining property;
(e) Reasonable doubt that the Work can be completed for the unpaid balance of the
Contract amount;
(f) Reasonable indication that the Work will not be completed within the Contract
Time;
(g) Failure on the part of the CONTRACTOR to execute any and all documents,
releases or other documents presented to the CONTRACTOR for execution, as
provided for herein or otherwise;
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(h) Liquidated or other damages due to late completion; and/or
(i) Any breach by CONTRACTOR of this Contract or any other agreement between
OWNER and CONTRACTOR.
When the above grounds are removed to OWNER’s satisfaction, the withheld payment shall be
made promptly. If the said causes are not so remedied, OWNER may remedy the same for
CONTRACTOR's account, charge the entire cost thereof to CONTRACTOR and deduct such cost
from the Contract Sum or from any payments due or to become due under any other agreement
between OWNER and CONTRACTOR.
6.13 DELAYED PAYMENTS. Should the OWNER fail to make payment to the
CONTRACTOR when payment is due in accordance with the terms of the Contract Documents,
any interest due CONTRACTOR for late payments shall accrue and be paid in accordance with
the provisions of Chapter 2251 of the Texas Government Code, as amended, and payment of such
interest shall fully liquidate and compensate any injury to the CONTRACTOR growing out of
such delay in payment. Should OWNER fail to pay CONTRACTOR an undisputed amount due
within the time limits provided in the Contract or applicable law, CONTRACTOR shall give the
notice required and comply with the provisions of Section 2251.051 of the Texas Government
Code, and shall thereupon be entitled to the rights and remedies provided therein.
7.0 EXTRA WORK AND CLAIMS
7.01 DIFFERING SITE CONDITIONS. During the progress of the work, if subsurface, latent
physical conditions or unknown physical conditions of an unusual nature are encountered at the
site that differ materially from those indicated in the contract or from those ordinarily encountered
and generally recognized as inherent in the work provided for in the contract, the CONTRACTOR
shall notify the OWNER’s Representative in writing within three (3) calendar days of the specific
differing conditions before the site is disturbed and before the affected work is performed.
(a) Upon written notification, the ENGINEER will investigate the conditions, and if it is
determined that the conditions materially differ and cause an increase or decrease in the
cost or time required for the performance of any work under the contract, an adjustment,
excluding anticipated profits, will be made and the contract modified in writing
accordingly. The ENGINEER will notify the CONTRACTOR in writing of the
determination whether or not an adjustment of the contract is warranted.
(b) No contract adjustment which results in a benefit to the CONTRACTOR will be
allowed unless the CONTRACTOR has provided the required written notice.
(c) No contract adjustment will be allowed under this clause for any effects caused on
unchanged work.
7.02 SUSPENSIONS OF WORK ORDERED BY THE ENGINEER. If the performance of all
or any portion of the work is suspended by the ENGINEER in writing for seven (7) calendar days
and the CONTRACTOR believes that additional compensation and/or contract time is due as a
result of such suspension, the CONTRACTOR shall submit a written request for adjustment to the
ENGINEER within seven (7) calendar days of receipt of the notice to resume work. The request
shall set forth the reasons and support for such adjustment.
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(a) Upon receipt, the ENGINEER will evaluate the CONTRACTOR's request. If the
ENGINEER agrees that the cost and/or time required for the performance of the contract
has increased as a result of such suspension and the suspension was caused by conditions
beyond the control of and not the fault of the CONTRACTOR, its suppliers, or
subcontractors at any approved tier, and not caused by weather, the ENGINEER will make
an adjustment (excluding profit) and modify the contract in writing accordingly. The
CONTRACTOR will be notified of the ENGINEER's determination, in writing, whether or
not an adjustment of the contract is warranted.
(b) No contract adjustment will be allowed unless the CONTRACTOR has submitted the
request for adjustment within the time prescribed.
(c) No contract adjustment will be allowed under this clause to the extent that performance
would have been suspended by any other cause, or for which an adjustment is provided or
excluded under any other term or condition of this contract.
7.03 CHANGE ORDERS. Without invalidating this Agreement, the OWNER may, at
any time or from time to time, order additions, deletions or revisions to the Work; such changes
will be authorized by Change Order to be prepared by the ENGINEER for execution by the
OWNER and the CONTRACTOR. The Change Order shall set forth the basis for any change in
Contract Price, as hereinafter set forth for Extra Work, and any change in Contract Time, which
may result from the change.
7.04 In accordance with paragraph 1.06 CONTRACTOR’S request to work weekends,
the Owner’s Construction Manager shall, upon receipt of written notice by the CONTRACTOR of
the need to conduct work on otherwise non-Work Days, prepare a cost estimate for providing
Construction Management and Inspection services during the requested period and submit this to
both OWNER and CONTRACTOR. If approved by both parties the Construction Manager shall
prepare a Deductive Change Order in the amount stated in the estimate for the signature of the
CONTRACTOR and the OWNER for inclusion in the next Pay Application. The Deductive
Change Order must be signed and executed by both the OWNER and CONTRACTOR prior to
start of work on any non-Work Day.
7.05 MINOR CHANGES. The ENGINEER may authorize minor changes in the Work
not inconsistent with the overall intent of the Contract Documents and not involving an increase in
Contract Price or time. If the CONTRACTOR believes that any minor changes authorized by the
ENGINEER involves Extra Work or entitles him to an increase in the Contract Price or the
Contract Time, the CONTRACTOR shall give notice of same by written request to the
ENGINEER for a written Work Order, with a copy to OWNER. Any such notice and request by
the CONTRACTOR shall be given prior to beginning the changed work. CONTRACTOR’s
commencement of any minor change in the Work prior to such written notice and request shall
constitute a waiver of any and all claims for an increase in the Contract Price or the Contract Time
arising out of or related to such changed work.
7.06 EXTRA WORK. It is agreed that the CONTRACTOR shall perform all work
when presented with a written Change Order, Work Change Directive or Work Order signed by
the ENGINEER, subject, however, to the right of the CONTRACTOR to require written
confirmation of such Change Order, Work Change Directive or Work Order by the OWNER. It is
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agreed that the basis of compensation or adjustment to the CONTRACTOR for work either
altered, added or deleted by a Change Order or Work Change Directive, or for which a claim for
Extra Work is made, shall be determined by one or more of the following methods:
Method (A) --By Contract unit prices applicable to the work, if any; or
Method (B) -- By agreed unit prices or agreed stipulated lump sum price; or
Method (C) -- If neither Method (A) nor Method (B) can be agreed upon before the Extra
Work is commenced, then the CONTRACTOR shall be paid the “Actual Field Cost” of
the work plus:
a) For subcontractors performing work mark-up shall be limited to fifteen
percent, ten (10%) for the subcontractor plus five (5%) for the General Contractor
or
b) For the General Contractor alone, self-performing the extra work, without
subcontractor, the mark-up shall not exceed ten percent (10%), as full and final
compensation for the Extra Work and all costs and expenses, direct or indirect,
arising out of or related thereto.
In the event said Extra Work or Change Order or Work Change Directive work is performed and
paid for under Method (C), then the provisions of this paragraph shall apply and the “Actual Field
Cost” is hereby defined as the cost to the CONTRACTOR of all workers, such as foremen,
timekeepers, mechanics and laborers, and materials, supplies, trucks, rentals of machinery and
equipment, for the time actually employed or used on such Extra Work or Change Order or Work
Change Directive work, plus actual transportation charges necessarily incurred together with all
power, fuel, lubricants, water and similar operating expenses, plus all necessary incidental
expenses incurred directly on account of such Extra Work, including Social Security, Old Age
Benefits and other payroll taxes, and a rateable proportion of premiums on Performance and
Payment Bonds and Maintenance Bonds, Public Liability and Property Damage and Workers’
Compensation, and all other insurance as may be required by law or ordinance, or the Contract
Documents, plus all payments to subcontractors for such work.
The ENGINEER may direct the form in which accounts of the “Actual Field Cost” shall be kept
and the records of these accounts shall be made available to the ENGINEER. The ENGINEER or
OWNER may also specify in writing, before the work commences, the method of doing the work
and the type and kind of machinery and equipment to be used; otherwise these matters shall be
determined by the CONTRACTOR. Unless otherwise agreed upon, the prices for the use of
machinery and equipment shall be determined by using one hundred percent (100%), unless
otherwise specified, of the latest schedule of Equipment Ownership Expense adopted by the
Associated General Contractors of America where practicable. The mark-up of the “Actual Field
Cost” to be paid to the CONTRACTOR, shall cover and compensate him for his profit, overhead,
and all other elements of cost and expense not embraced within the “Actual Field Cost” as herein
defined, save that where the CONTRACTOR’s field office must be maintained solely on account
of such Extra Work, then the cost to maintain and operate the same shall be included in the
“Actual Field Cost.”
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No claim for Extra Work of any kind will be allowed unless ordered by the ENGINEER in a
written Work Order. In case any orders or instructions, either oral or written, appear to the
CONTRACTOR to involve Extra Work for which he should receive compensation or an
adjustment in the Contract Time, he shall make written request to the ENGINEER for a written
Work Order authorizing such Extra Work within ten (10) days of ENGINEER’s orders or
instructions, otherwise the orders or instructions will be considered minor changes. The issuance
of a Work Order by the ENGINEER shall not constitute or be construed as an agreement or
acknowledgement by the ENGINEER that the work which is the subject of the Work Order is
Extra Work outside the scope of the Contract Work, but shall merely constitute a direction to the
CONTRACTOR to perform the work, and the CONTRACTOR shall proceed with the work, and
shall keep an accurate account of the “Actual Field Cost” thereof, as provided under Method (C).
Upon completion of the alleged Extra Work, the CONTRACTOR shall promptly and within ten
(10) days submit his claim to the ENGINEER by proper certification and attestation, on forms
provided by the ENGINEER. The ENGINEER shall render a written decision on
CONTRACTOR’s claim within ten (10) days. It is mutually agreed between the parties that the
ENGINEER’s decision on all claims or questions in relation to the Work, CONTRACTOR’s
performance of the Work, any changes in the Work or Extra Work, the Contract Price and/or the
Contract Time, shall be final and conclusive and binding upon the parties. If the ENGINEER
shall fail to respond in writing to CONTRACTOR’s claim within thirty (30) days of the date of
submission, or if CONTRACTOR shall dispute or object to ENGINEER’s decision on any claim,
and CONTRACTOR fails to file a Request for Mediation of such claim in accordance with the
provisions of Article 9.0, within sixty (60) days after the date of submission to the ENGINEER, or
such longer period as the parties may agree to in writing, the CONTRACTOR shall lose and
forfeit his right to make such claim for Extra Work at any later date, and all such claims held by
the CONTRACTOR shall be deemed waived, forfeited and forever barred. CONTRACTOR shall
continue to diligently prosecute the Work notwithstanding any pending claim, dispute, or dispute
resolution process between OWNER and CONTRACTOR.
7.07 TIME OF FILING CLAIMS. Except as otherwise provided herein, all questions
of dispute or adjustment shall be made within the Pro-Trak system and filed with the ENGINEER
within three (3) days after the ENGINEER has given any directions, order or instruction to which
the CONTRACTOR desires to take exception. The ENGINEER shall reply within thirty (30) days
to such written exceptions, and render his final decision in writing. It is mutually agreed between
the parties that the ENGINEER’s decision on all claims or questions in relation to the Work,
CONTRACTOR’s performance of the Work, any changes in the Work or Extra Work, the
Contract Price and/or the Contract Time, shall be final and conclusive and binding upon the
parties. In case the CONTRACTOR should desire to appeal from the ENGINEER’s decision, the
CONTRACTOR may request a meeting between representatives of the OWNER and the
CONTRACTOR for the purposes of appealing the ENGINEER’s decision directly to the
OWNER, such meeting to occur within ten (10) days after the date of the CONTRACTOR’s
request, or such longer period as may be agreed to by the parties in writing. If the
CONTRACTOR shall still be aggrieved after a meeting with the OWNER and/or his
representative, the CONTRACTOR shall have sixty (60) days after the date of the meeting, or
such longer period as the parties may agree to in writing, to file a Request for Mediation of such
claim in accordance with the provisions of Article 9.0. In the event the CONTRACTOR shall fail,
for any reason, to timely file a Request for Mediation, the OWNER shall be released of any and all
liability, and the CONTRACTOR’s failure to timely file a Request for Mediation shall constitute a
waiver, forfeit and final bar of all such claims held by the CONTRACTOR against the OWNER.
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CONTRACTOR shall continue to diligently prosecute the Work notwithstanding any pending
claim, dispute, or dispute resolution process between OWNER and CONTRACTOR.
8.0 DEFAULT
8.01 DEFAULT BY CONTRACTOR. In case the CONTRACTOR should abandon
and fail or refuse to resume Work within five (5) days after written notification from the OWNER
or the ENGINEER, or if the CONTRACTOR fails to comply with the orders of the ENGINEER
when such orders are consistent with the Contract Documents, or if the CONTRACTOR otherwise
defaults on its obligations under the Contract, OWNER shall have the right, if it so elects and
without prejudice to any other rights it may have, after giving five (5) days written notice of
default to CONTRACTOR and any surety, to terminate the Contract or any part thereof and/or to
take over or cause others to take over the Work or any part thereof, and to complete such Work for
the account of CONTRACTOR. Where Performance and Payment Bonds exist, the sureties on
these bonds shall be directed to complete the Work in conjunction with the notice of default, and a
copy of said notice shall be delivered to the CONTRACTOR.
After receiving said notice of default, the CONTRACTOR shall promptly and within no more than
three (3) days, remove from the Work any machinery, equipment, or tools then on the job, not
intended for incorporation into the Work. Should CONTRACTOR fail to promptly remove such
machinery, equipment or tools, OWNER may remove such machinery, equipment or tools and
store same at CONTRACTOR’s expense; return such machinery, equipment or tools to their
purported owner; or otherwise dispose of such machinery, equipment or tools as OWNER sees fit.
Any materials, supplies and/or equipment delivered for use in the Work, may be used in the
completion of the Work by the OWNER or the surety on the Performance Bond, or another
contractor in completion of the Work; it being understood that the use of such equipment, supplies
and materials will ultimately reduce the cost to complete the Work and be reflected in the final
settlement.
Where there is no Performance Bond or in case the surety should fail to commence compliance
with the notice for completion hereinabove provided for within ten (10) days after the service of
such notice, then the OWNER may provide for completion of the Work in either of the following
elective manners:
(a) The OWNER may thereupon employ such force of workers and use such
machinery, equipment, tools, materials and supplies as the OWNER may deem
necessary to expeditiously complete the Work, and charge the expense of such
labor, machinery, equipment, tools, materials and supplies to said
CONTRACTOR, and expense so charged shall be deducted and paid by the
OWNER out of such monies as may be due or that may thereafter at any time
become due to the CONTRACTOR under and by virtue of this Agreement or any
other agreement between OWNER and CONTRACTOR. In case such expense is
less than the sum which would have been payable under this Contract if the same
had been completed by the CONTRACTOR, then said CONTRACTOR shall be
credited with the difference. In case such expense is greater than the sum which
would have been payable under this Contract if the same had been completed by
such CONTRACTOR, then the CONTRACTOR and/or his surety shall promptly
pay the amount of such excess to the OWNER upon demand; or
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(b) The OWNER, under sealed bids, under the times and procedures provided for by
law, may let the contract for completion of the Work under substantially the same
terms and conditions which are provided in this Contract. In case of any increase in
cost to the OWNER under the completion contract, as compared to what would
have been the cost under this Contract, such increase shall be charged to the
CONTRACTOR, and the amount of such increase may be deducted by the
OWNER out of such monies as may be due or that may thereafter at any time
become due to the CONTRACTOR under and by virtue of this Agreement or any
other agreement between OWNER and CONTRACTOR, or the CONTRACTOR
and/or his surety shall promptly pay the amount of such increase to the OWNER
upon demand. However, should the cost to complete any such completion contract
prove to be less than what would have been the cost to complete under this
Contract, the CONTRACTOR and/or his surety shall be credited therewith.
In the event of a default by CONTRACTOR, no further payments shall be made to
CONTRACTOR under the Contract until the Work is Finally Completed. When the Work shall
have been Finally Completed, the CONTRACTOR and his surety shall be so notified. A complete
itemized statement of the Contract accounts, certified by the ENGINEER as being correct, shall
then be prepared and delivered to the CONTRACTOR and his surety, whereupon the
CONTRACTOR and/or his surety shall pay the balance due as reflected by said statement. The
OWNER, prior to incurring an obligation to make payment hereunder, shall have such statement
of completion attested to by the CONTRACTOR and the surety as accurate, and in exchange for
payment of the sum stated therein, the OWNER shall be entitled to a full and final release of any
claims or demands by the CONTRACTOR or the surety.
In the event the statement of accounts shows that the cost to complete the work is less than that
which would have been the cost to the OWNER had the work been completed by the
CONTRACTOR under the terms of this Contract, or when the CONTRACTOR and/or his surety
shall pay the balance shown to be due by them to the OWNER, then all machinery, equipment,
tools or supplies left on the site of the Work shall be turned over to the CONTRACTOR and/or his
surety. Should the cost to complete the Work exceed the Contract Price, and the CONTRACTOR
and/or his surety fail to pay the amount due the OWNER within the time designated above, and
there remains any machinery, equipment, tools, materials or supplies which are the property of
CONTRACTOR on the site of the Work, notice thereof, together with an itemized list of such
equipment and materials, shall be mailed to the CONTRACTOR and his surety at the respective
addresses designated in the Contract, provided, however, that actual written notice given in any
manner will satisfy this condition. After mailing or other giving of such notice, such property
shall be held at the risk of the CONTRACTOR and his surety, subject only to the duty of the
OWNER to exercise ordinary care to protect such property. After fifteen (15) days from the date
of such notice, the OWNER may sell such property, equipment, tools, materials or supplies, and
apply the net sum derived from such sale to the credit of the CONTRACTOR and his surety. Such
sale may be made at either public or private sale, with or without notice, as the OWNER may
elect. The OWNER shall release any machinery, equipment, tools, materials or supplies, which
remain on the Work, and belong to persons other than the CONTRACTOR or his surety, to their
reputed owners.
8.02 SUPPLEMENTATION OF CONTRACTOR FORCES. If CONTRACTOR at any
time shall, in OWNER'S sole opinion, fail to furnish skilled workers, suitable materials, supplies
or adequate equipment sufficient for the prompt, timely and diligent prosecution of the Work in
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accordance with OWNER's direction, OWNER shall have the right, without prejudice to the
exercise of other remedies for the same default and without fully taking over the Work, to
supplement CONTRACTOR’s forces and to expedite delivery of and to procure and furnish such
workers, materials, tools, supplies or equipment for CONTRACTOR's account by employing
other contractors and suppliers engaged in the same class of work and charge the entire cost
thereof to CONTRACTOR, said cost to be deducted from sums due or to become due to
CONTRACTOR under the Contract or any other agreement with OWNER or any parent,
subsidiary or affiliate of OWNER.
8.03 CUMULATIVE REMEDIES & SPECIFIC PERFORMANCE. All rights and
remedies of OWNER, under the terms of the Contract and/or available at law or in equity, are
cumulative. In the event CONTRACTOR or any of its subcontractors, vendors or suppliers fails
or refuses for any reason to provide timely manufacture, fabrication, delivery, installation,
erection, construction or completion of any supplies, materials, expendables, equipment,
machinery, accessories or appurtenances to be furnished hereunder, CONTRACTOR
acknowledges and agrees that such items are required, necessary, essentially unique to the Project
and the Work and will cause irreparable harm to OWNER and the Project if not furnished in
accordance with the Contract, and OWNER shall have the right to obtain a decree of specific
performance and mandatory injunctive relief from any Court of competent jurisdiction to ensure
the timely furnishing of such items.
8.04 CROSS-DEFAULT. If, for any reason, CONTRACTOR is declared in default
and/or terminated by OWNER under any other agreement with OWNER, whether related to the
Project or not related to the Project, OWNER shall have the right to offset and apply any amounts
which might be owed to OWNER by CONTRACTOR under any other such agreements against
any earned but unpaid amounts owing to CONTRACTOR by OWNER under the Contract, any
retainage earned by CONTRACTOR under the Contract or any unearned, unpaid amount under
the Contract.
8.05 INSOLVENCY. It is recognized that if CONTRACTOR becomes a debtor in
voluntary or involuntary bankruptcy proceedings, makes a general assignment for the benefit of
creditors, or if a receiver is appointed on account of his insolvency, such events could seriously
impair or frustrate CONTRACTOR's performance of the Work. Accordingly, it is agreed that
should CONTRACTOR become a debtor in bankruptcy, either voluntary or involuntary,
CONTRACTOR shall notify OWNER in writing within twenty-four (24) hours of the filing with
the bankruptcy court. Further, it is agreed that upon occurrence of any one or more such events,
OWNER shall be entitled to request of CONTRACTOR or its successors, trustees or receivers,
adequate assurances of future performance. In the event such adequate assurances are not given to
the reasonable satisfaction of OWNER within seventy-two (72) hours of such request, OWNER
shall have the right to immediately invoke the remedies of this Section 8 or as provided by law.
Pending receipt of such adequate assurances of such future performance, OWNER may proceed
with the Work on a temporary basis and deduct the costs, plus reasonable overhead and profit,
from any amounts due or which may become due to CONTRACTOR under the Contract or any
other agreement with OWNER. In this regard, OWNER and CONTRACTOR agree that delays in
performance could result in more damages to CONTRACTOR than would be sustained if
OWNER failed to exercise such remedies.
8.06 CONTINGENT ASSIGNMENT. CONTRACTOR hereby assigns to OWNER, all
of CONTRACTOR’s rights under and interest in any and all subcontracts and/or purchase orders
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entered into by CONTRACTOR pursuant to this Agreement, such assignment to become effective
upon CONTRACTOR’s default under this Agreement or OWNER’s termination of this Contract,
and OWNER’s acceptance of such assignment. Upon CONTRACTOR’s default or OWNER’s
termination of this Contract, OWNER may, in the event there is no performance bond for the
Contract, or in the event the performance bond surety fails to complete the Contract, or if OWNER
otherwise so elects in its sole discretion, accept such assignment by written notice of such
acceptance to CONTRACTOR and subcontractor, and may require subcontractors to perform all
of the then unperformed duties and obligations under the subcontract, for the direct benefit of
OWNER. In the event OWNER requires such performance by a subcontractor, then OWNER
shall be obligated to pay such subcontractor any amounts due and owing under the terms of the
subcontract/purchase order, at the subcontract prices and rates, and subject to any rights of
withholding or offset and other terms and conditions of the subcontract, for all work properly
performed by such subcontractor, to the date of OWNER’s acceptance and thereafter. OWNER’s
liability in this connection, however, shall not exceed the amount obtained by subtracting all
payments made by CONTRACTOR to subcontractor from the Subcontract Price at the time of
CONTRACTOR’s default or OWNER’s termination of CONTRACTOR. CONTRACTOR shall
include a provision in its subcontracts that allows such assignment and allows OWNER to take
these actions, and further provides that in the event of CONTRACTOR’s termination for default,
the subcontractor agrees to give the OWNER or its agent the right to inspect all books and records
of subcontractor relating to the Work.
8.07 WAIVER OF CONSEQUENTIAL DAMAGES. CONTRACTOR expressly
waives any and all claims for consequential damages against OWNER arising out of or related to
this Contract, or any other agreements between CONTRACTOR and OWNER, including, but not
limited to, claims for damages incurred by CONTRACTOR for principal office expenses,
including the compensation of personnel stationed there, losses of financing, bonding capacity,
business and reputation, and claims for lost profit, whether on this Contract or otherwise.
8.08 TERMINATION FOR CONVENIENCE. OWNER may at its sole discretion,
upon five (5) days written notice to CONTRACTOR, terminate this Contract, in whole or in part,
if and when OWNER determines that it is in the best interest of OWNER to do so. Upon receipt
of such written notice from OWNER, CONTRACTOR shall cease all terminated Work and take
reasonable precautions to protect and preserve such work, and shall take all reasonable measures
after consultation with OWNER to terminate or assign to OWNER all subcontracts, purchase
orders or other commitments related to the Work or the Project on terms and conditions acceptable
to OWNER. CONTRACTOR will be paid for all Work performed in strict accordance with the
Contract Documents, based upon the Contract Price and the percentage of completion on the date
of termination, and less amounts previously paid, subject to any reasonable backcharges
attributable to CONTRACTOR’s failure to comply with any of the provisions of this Contract and
further subject to the other terms of this Contract regarding payment. In no event will
CONTRACTOR receive or be entitled to any payment or compensation whatsoever for
interruption of business or loss of business opportunities, any other items of consequential
damages, for overhead or loss of profits on the unperformed Work and/or services and unfurnished
materials or for any intangible, impact or similarly described cost, damages or expense, and under
no circumstances shall the total sum paid to or received by CONTRACTOR under this Contract
exceed the Contract Price. The compensation provided herein shall be CONTRACTOR’s sole and
exclusive remedy arising out of a termination for convenience.
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8.09 DEFAULT BY OWNER. In case the OWNER shall default on its material
obligations under this Contract, other than OWNER’s failure to pay CONTRACTOR a disputed
amount due within the time limits provided in the Contract or applicable law, as addressed by
Section 6.13 of this Agreement, and shall fail or refuse to cure, or to commence and diligently
pursue cure of such default within fifteen (15) days after written notification by the
CONTRACTOR, then the CONTRACTOR may suspend or wholly abandon the Work, and may
remove therefrom all machinery, tools and equipment, and all materials on the site of the Work
that have not been included in payments to the CONTRACTOR and have not been incorporated
into the Work. And thereupon, the ENGINEER shall make an estimate of the total amount earned
by the CONTRACTOR, which estimate shall include the value of all Work actually completed by
said CONTRACTOR (at the Contract Prices), the value of all partially completed Work at a fair
and equitable price, and the amount of all Extra Work performed at the prices agreed upon, or
provided for by the terms of this Contract, and a reasonable sum to cover the cost of any
provisions made by the CONTRACTOR to carry the whole Work to completion and which cannot
be utilized. The ENGINEER shall then make a final statement of the balance due the
CONTRACTOR by deducting from the above estimate all previous payments by the OWNER and
all other sums that may be retained by the OWNER under the terms of this Agreement, and shall
present the same to the OWNER, and OWNER’s payment of said sum to the CONTRACTOR, on
or before thirty (30) days after OWNER’s receipt of such statement, shall satisfy any and all
rights, claims or causes of action of CONTRACTOR arising out of or related to such default by
OWNER, and shall be CONTRACTOR’s sole and exclusive remedy for such default. A disputed
or unilateral claim by the Contractor cannot by itself constitute a default hereunder.
9.0 DISPUTE RESOLUTION
Any dispute or pending claim or dispute resolution process between OWNER and
CONTRACTOR shall not excuse or relieve CONTRACTOR of its obligations under the Contract,
and CONTRACTOR shall diligently prosecute the Work notwithstanding any pending claim,
dispute, or dispute resolution process between OWNER and CONTRACTOR.
All claims, disputes and other matters in question arising out of or relating to, the Contract,
or the breach thereof, shall be subject to mediation as a condition precedent to any other dispute
resolution process as may be selected by OWNER. Unless mutually agreed otherwise the
mediation shall be conducted by a third party who will be selected by agreement between
OWNER and CONTRACTOR, and Request for Mediation shall be filed with the other party. The
parties shall share the mediator’s fee and any filing fees equally.
If a claim, dispute or other matter in question between OWNER and CONTRACTOR
involves the work of a subcontractor or supplier, OWNER or CONTRACTOR may join such
subcontractor or supplier as a party to any mediation proceeding between OWNER and
CONTRACTOR hereunder. CONTRACTOR shall include in all subcontracts and/or purchase
orders related to the Work a specific provision whereby the subcontractor or supplier consents to
being joined in mediation between OWNER and CONTRACTOR involving the work of such
subcontractor or supplier.
This Contract shall be governed by the laws of the State of Texas and shall be considered
performable in Brazoria County, Texas, for venue purposes. Further, the OWNER and
CONTRACTOR stipulate that venue for any dispute resolution proceeding involving or touching
upon the Contract other than the conduct of an arbitration hearing shall be in Brazoria County,
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Texas, or, if such choice of venue is prohibited or unenforceable by law, shall be held in the
county where the Project is located.
CONTRACTOR agrees to pay OWNER all reasonable attorneys' fees incurred by
OWNER in the event OWNER seeks to enforce any provision of this Contract whether by
arbitration or other dispute resolution process. Further, in the event OWNER defends any claim
instituted by CONTRACTOR against OWNER, whether in arbitration or other dispute resolution
process, CONTRACTOR agrees to pay OWNER all reasonable attorneys' fees incurred by
OWNER in defending such claim provided OWNER is the prevailing party, in whole or in part, in
such proceeding.
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ATTACHMENT NO. 1 TO GENERAL CONDITIONS
WORKERS’ COMPENSATION INSURANCE COVERAGE
A. DEFINITIONS:
Certificate of coverage (“certificate”) - A copy of a certificate of insurance, a
certificate of authority to self-insure issued by the commission, or a coverage
agreement (TWCC81, TWCC-82, TWCC-83 or TWCC-84), showing statutory
workers’ compensation insurance coverage for the person’s or entity’s employees
providing services on a project for the duration of the Project.
Duration of the Project - includes the time from the beginning of the Work on the
Project until the contractor’s/person’s work on the Project has been completed and
the Project warranty period has expired.
Persons providing services on the project includes persons or entities performing
all or part of the services the contractor has undertaken to perform on the project,
regardless of whether that person contracted directly with due contractor and
regardless of whether that person has employees. This includes, without
limitation, independent contractors, subcontractors, motor carriers and owner-
operators, (as defined at Section 406.121 of the Texas Labor Code), leasing
companies, and employees of any such entity, or employees of any entity which
furnishes persons to provide services on the project. “Services” include, without
limitation, providing, hauling, or delivering equipment or materials, or providing
labor, transportation, or other service related to a project. “Services” does not
include activities unrelated to the project, such as food/beverage vendors, office
supply deliveries, and delivery of portable toilets.
B. The CONTRACTOR shall provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Title 5 Workers’ Compensation, Subtitle A
Texas Workers’ Compensation Act, for employees of the contractor providing services on
the project, for the duration of the project.
C. The CONTRACTOR must provide a certificate of coverage to the OWNER prior to being
awarded the Contract.
D. If the coverage period shown on the CONTRACTOR’s current certificate of coverage
ends during the duration of the project, the CONTRACTOR must, prior to the end of the
coverage period, file a new certificate of coverage with the OWNER showing that
coverage has been extended.
E. The CONTRACTOR shall obtain from each subcontractor or other person providing
services on a project, and provide to the OWNER:
(I) a certificate of coverage, prior to that person beginning work on the Project, so the
OWNER will have on file certificates of coverage showing coverage for all
persons providing services on the Project; and
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(2) no later than seven days after receipt by the CONTRACTOR and prior to the end
of the coverage period, a new certificate of coverage showing extension of
coverage, if the coverage period shown on the current certificate of coverage ends
during the duration of the Project.
F. The CONTRACTOR shall retain all required certificates of coverage for the duration of
the Project and for one year thereafter.
G. The CONTRACTOR shall notify the OWNER in writing by certified mail or personal
delivery, within 10 days after the CONTRACTOR knew or should have known, of any
changes that materially affect the provision of coverage of any person providing services
on the Project.
H. The CONTRACTOR shall post on each Project site a notice, in the text, form and manner
prescribed by the Texas Workers’ Compensation Commission, informing all persons
providing services on the Project that they are required to be covered, and stating how a
person may verify coverage and report lack of coverage.
NOTICE
REQUIRED WORKERS’ COMPENSATION COVERAGE
“The law requires that each person working on this site or providing
services related to this construction project must be covered by
workers’ compensation insurance. This includes persons providing,
hauling, or delivering equipment or materials, or providing labor or
transportation or other service related to the project, regardless of
the identity of their employer or status as an employee.”
“Call the Texas Workers’ Compensation Commission at (512) 440-
3789 to receive information on the legal requirements for coverage,
to verify whether your employer has provided the required coverage,
or to report an employer’s failure to provide coverage.”
I. The CONTRACTOR shall contractually require each person with whom it contracts to
provide services on a project, too:
(1) provide coverage, based on proper reporting of classification codes and payroll
amounts and filing of any coverage agreements, which meets the statutory
requirements of Texas Labor Code, Title 5 Workers’ Compensation, Subtitle A
Texas Workers’ Compensation Act, for all of its employees providing services on
the Project, for the duration of the Project;
(2) provide to the CONTRACTOR, prior to that person beginning work on the
Project, a certificate of coverage showing that coverage is being provided for all
employees of the person providing services on the project, for the duration of the
Project:
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(3) provide the CONTRACTOR, prior to the end of the coverage period, a new
certificate of coverage, showing extension of coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of the
Project;
(4) obtain from each other person with whom it contracts, and provide to the
CONTRACTOR:
(a) a certificate of coverage, prior to the other person beginning work on the
Project; and
(b) a new certificate of coverage showing extension of coverage, prior to the
end of the coverage period, if the coverage period shown on the current
certificate of coverage ends during the duration of the Project;
(5) retain all required certificates of coverage on file for the duration of the Project
and for one year thereafter;
(6) notify the OWNER in writing by certified mail or personal delivery, within 10 days
after the person knew or should have known, of any change that materially affects
the provision of coverage of any person providing services on the Project; and
(7) contractually require each person with whom it contracts, to perform as required by
paragraphs (1) - (7), with the certificates of coverage to be provided to the person
for whom they are providing services.
J. By signing this Contract or providing or causing to be provided a certificate of coverage,
the CONTRACTOR is representing to the OWNER that all employees of the
CONTRACTOR who will provide services on the Project will be covered by workers’
compensation coverage for the duration of the Project, that the coverage agreements will
be based on proper reporting of classification codes and payroll amounts, and that all
coverage agreements will be filed with the appropriate insurance carrier or, in the case of a
self-insured, with the commission’s Division of Self-Insurance Regulation. Providing false
or misleading information may subject the CONTRACTOR to administrative penalties,
criminal penalties, civil penalties, or other civil actions.
K. The CONTRACTOR’s failure to comply with any of these provisions is a breach of
contract by the CONTRACTOR, which entitles the OWNER to pursue all rights and
remedies available to it under the Contract, at law or in equity, if the CONTRACTOR does
not remedy the breach within ten days after receipt of notice of breach from the OWNER.
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ATTACHMENT NO. 2 TO GENERAL CONDITIONS
AGREEMENT FOR FINAL PAYMENT
AND CONTRACTOR’S SWORN RELEASE
In consideration of the Final Payment under that certain contract between
_____________________ (hereafter “CONTRACTOR”) and the City of Pearland (hereafter
“OWNER”) for the Project known as Shadycrest and Creekview Drainage & Paving, Water Line
and Wastewater Improvements Project (the “Contract”), the CONTRACTOR makes the following
representations to OWNER, either individually if a proprietorship, or jointly and severally by all
general partners if a partnership, or if a corporation, by action of the president and secretary of
said corporation, as duly authorized by appropriate action of the stockholders and/or board of
directors of said corporation, their signatures hereon constituting a representation under oath by
said individuals that they have the authority to execute this Agreement for and on behalf of the
said corporation:
1. The undersigned CONTRACTOR represents to OWNER that the Application for
Payment for the Final Payment under the Contract, and the final Change Order
issued under the Contract if any, whether or not modified, corrected or changed in
some way by the ENGINEER, the CONTRACTOR or the OWNER, a copy of
which are attached hereto and marked Exhibit “A”, are true, correct and accurate,
and that CONTRACTOR has received payment in full for all other Applications for
Payment submitted under the Contract, and that CONTRACTOR has been fully
compensated for all labor, materials, equipment and/or services furnished in
connection with the Contract, except for the Final Payment.
2. It is agreed and stipulated by the undersigned CONTRACTOR that upon the
receipt of Final Payment in the amount as set out on the attached Application for
Payment, the CONTRACTOR, by execution of this instrument of release, does,
therefore, RELEASE and FOREVER DISCHARGE OWNER of and from all
manner of debts, claims, demands, obligations, suits, liabilities and causes of action
of any nature whatsoever, at law or in equity, in contract or in tort, now existing or
which may hereafter accrue, arising out of or related to the Contract, any Change
Orders or Work Orders, the Work, or any labor, materials, equipment or services
furnished by CONTRACTOR to OWNER.
3. The CONTRACTOR, acting by and through the person or persons whose names
are subscribed hereto, does solemnly swear and affirm that all bills and claims have
been paid to all materialmen, suppliers, laborers, subcontractors, or other entities
performing services or supplying materials or equipment, and that OWNER shall
not be subject to any bills, claims, demands, litigation or suits in connection
therewith.
4. It is further specifically understood and agreed that this Agreement for Final
Payment and Contractor's Sworn Release shall constitute a part of the Contract, and
it is also specifically understood and agreed that this Agreement shall not act as a
modification, waiver or renunciation by OWNER of any of its rights or remedies as
set out in the Contract itself, but this Agreement for Final Payment and
Contractor’s Sworn Release shall constitute a supplement thereto for the additional
Lucas Construction Company, Inc.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C1
ATTACHMENT NO. 3 TO GENERAL CONDITIONS
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.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C2
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:
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C3
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
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.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C4
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.
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.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C5
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.
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.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C6
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.
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
completion of project (where applicable)
$ TBD
ii. Agreed value Included without sublimit
iii. Damage arising from error, omission or
deficiency in construction methods,
design, specifications, workmanship or
materials, including collapse
Included without sublimit
iv. Debris removal additional limit 25% of direct damage
loss
v. Earthquake (where applicable) $ TBD
vi. Earthquake sprinkler leakage (where
applicable)
$ TBD
vii. Expediting expenses $ TBD
viii. Flood (where applicable) $ TBD
ix. Freezing Included without sublimit
x. Mechanical breakdown, including hot &
cold testing (where applicable)
Included without sublimit
xi. Notice of cancellation, non-renewal or Included
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C7
material reduction – 60 days prior
written notice to each insured
xii. Occupancy clause, as required in F,
below
Included
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,
below.
Included
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.
4.6.4 Deductibles. Deductibles shall not exceed the following:
a. All Risks of Direct Damage, Per
Occurrence, except
$5,000
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
Leakage, Per Occurrence
$25,000
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.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C8
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.
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.
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C9
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.
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
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CITY OF PEARLAND GENERAL CONDITIONS OF AGREEMENT
10-2012 00700 - C10
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.
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