HomeMy WebLinkAboutResolution No. 09-025
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 09-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF
THE PUBLIC WORKS CONSTRUCTION PROJECT AGREEMENT BY
AND BETWEEN THE CITY OF THE COLONY AND RATLIFF
HARDSCAPE, LTD. FOR REMOVAL OF EXISTING FENCE AND
REPLACEMENT WITH ORNAMENTAL METAL FENCING WHICH IS
ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT
"A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City and Contractor have entered into an Agreement such that the
Contractor is to remove the existing fence and replace with ornamental metal fencing on North
Colony Boulevard; and
WHEREAS, the City has determined that it is in the best interest of the City to enter into
the Agreement with Ratliff Hardscape, Ltd., which is attached hereto and incorporated herein by
reference as Exhibit "A," under the terms and conditions provided therein; and
WHEREAS, with this Agreement the City of The Colony is agreeing to pay the sum not
to exceed $95,500 for such work.
THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS THAT:
Section 1. The Public Works Construction Project Agreement, which is attached hereto and
incorporated herein as Exhibit "A", having been reviewed by the City Council of the City of The
Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be,
and the same is hereby, in all things approved in the amount of $93,765 as the base amount, plus a
$1,735 contingency amount for a total not to exceed $95,500, and the City Manager is hereby
authorized to execute the Contract on behalf of the City of The Colony, Texas.
Section 2. This Resolution shall take effect immediately from and after its adoption and
it is so resolved.
PASSED, APPROVED and EFFECTIVE this 16th day of March, 2009.
ME:
,
C
ity he C,.ollony, Texas
Christie Wilson, City Secretary
APPR E A TO ORM:
Robert E. Hager, C Attorney
63918
CITY OF THE COLONY, TEXAS
STANDARD FIXED PRICE AGREEMENT
PUBLIC WORKS CONSTRUCTION PROJECT
ORNAMENTAL METAL FENCING
City of The Colony, Texas
This Agreement is made by and between the City of The Colony, Texas, a home rule municipality
(hereinafter referred to as the "Owner") and Ratliff Hardscape, Ltd. (hereinafter referred to as the "Contractor") for
the demolition of the current fence and installation of a new ornamental fence on N. Colony Blvd. (hereinafter
referred to as the "Project"), the Owner and the Contractor hereby agreeing as follows:
ARTICLE 1 1.4 NO PRIVITY WITH OTHERS
THE CONTRACT AND THE CONTRACT 1.4.1 Nothing contained in this Contract shall
DOCUMENTS create, or be interpreted to create, privity or any other
contractual agreement between the Owner and any
1.1 THE CONTRACT person or entity other than the Contractor.
1.1.1 The Contract between the Owner and 1.5 INTENT AND INTERPRETATION
the Contractor, of which this Agreement is a part,
consists of the Contract Documents. It shall be 1.5.1 The intent of this Contract is to require
effective on the date this Agreement is executed by complete, correct and timely execution of the Work.
the last party to execute it. Any Work that may be required, implied or inferred
by the Contract Documents, or any one or more of
1.2. THE CONTRACT DOCUMENTS them, as necessary to produce the intended result
shall be provided by the Contractor for the Contract
1.2.1 The Contract Documents consist of this Price.
Agreement, the proposal document with attendant
drawings, scope of work and unit pricing, and is 1.5.2 This Contract is intended to be an
through a bid number 90-09-04-FENCE, all which integral whole and shall be interpreted as internally
are attached hereto and incorporated herein as consistent. What is required by any one Contract
Exhibits A, any other amendments hereto executed Document shall be considered as required by the
by the parties hereafter, together with the following Contract.
(if any):
1.5.3 When a word, term or phrase is used in
Documents not enumerated in this Paragraph 1.2.1 this Contract, it shall be interpreted or construed,
are not Contract Documents and do not form part of first, as defined herein; second, if not defined,
this Contract. according to its generally accepted meaning in the
construction industry; and third, if there is no
1.3 ENTIRE AGREEMENT generally accepted meaning in the construction
industry, according to its common and customary
1.3.1 This Contract, together with the usage.
Contractor's performance, payment and maintenance
bonds for the Project, all General Conditions, Special 1.5.4 The words "include", "includes", or
Conditions, Plans and Specifications (if applicable), "including", as used in this Contract, shall be deemed
and Addenda attached thereto, constitute the entire to be followed by the phrase, "without limitation".
and exclusive agreement between the Owner and the
Contractor with reference to the Project. 1.5.5 The specification herein of any act,
Specifically, but without limitation, this Contract failure, refusal, omission, event, occurrence or
supersedes any bid documents and all prior written or condition as constituting a material breach of this
oral communications, representations and Contract shall not imply that any other, non-specified
negotiations, if any, between the Owner and act, failure, refusal, omission, event, occurrence or
Contractor not expressly made a part hereof. condition shall be deemed not to constitute a material
breach of this Contract.
1.5.6 Words or terms used as nouns in this
Contract shall be inclusive of their singular and plural
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forms, unless the context of their usage clearly 1.6 OWNERSHIP OF
requires a contrary meaning.
CONTRACT DOCUMENTS
1.5.7 The Contractor shall have a continuing
duty to read, carefully study and compare each of the 1.6.1 The Contract Documents, and each of
Contract Documents, the Shop Drawings, the Product them, shall remain the property of the Owner. The
Data, and any Plans and Specifications, and shall Contractor shall have the right to keep one record set
give written notice to the Owner of any of the Contract Documents upon completion of the
inconsistency, ambiguity, error or omission which the Project; provided, however, that in no event shall
Contractor may discover with respect to these Contractor use, or permit to be used, any or all of
documents before proceeding with the affected Work. such Contract Documents on other projects without
The issuance or the express or implied approval by the Owner's prior written authorization.
the Owner or the Architect of the Contract
Documents, Shop Drawings or Product Data shall not
relieve the Contractor of the continuing duties
imposed hereby, nor shall any such approval be ARTICLE If
evidence of the Contractor's compliance with this
Contract. The Owner has requested the Architect to THE WORK
only prepare documents for the Project, including the
Drawings and Specifications for the Project, which 2.1 The Contractor shall perform all of the
are accurate, adequate, consistent, coordinated and Work required, implied or reasonably inferable from,
sufficient for construction. HOWEVER, THE this Contract.
OWNER MAKES NO REPRESENTATION OR
WARRANTY OF ANY NATURE WHATSOEVER 2.2 WORK
TO THE CONTRACTOR CONCERNING SUCH
DOCUMENTS. By the execution hereof, the 2.2.1 The term "Work" shall mean whatever
Contractor acknowledges and represents that it has is done by or required of the Contractor to perform
received, reviewed and carefully examined such and complete its duties under this Contract, including
documents, has found them to be complete, accurate, the following: construction of the whole or a
adequate, consistent, coordinated and sufficient for designated part of the Project; furnishing of any
construction, and that the Contractor has not, does required surety bonds and insurance, and the
not, and will not rely upon any representation or provision or furnishing of labor, supervision,
warranties by the Owner concerning such documents services, materials, supplies, equipment, fixtures,
as no such representation or warranties have been or appliances, facilities, tools, transportation, storage,
are hereby made. Further, the Contractor represents power, permits and licenses required of the
and warrants that it has had a sufficient opportunity Contractor, fuel, heat, light, cooling and all other
to inspect the Project site and assumes any and all utilities as required by this Contract. The Work to be
responsibility for inadequacies or ambiguities in the performed by the Contractor is generally described as
plans, drawings or specifications as well as for latent follows:
conditions of the site where the work is to be
performed. Removal of old fence and installation of new
ornamental metal fencing on N. Colony Blvd. as
1.5.8 As between numbers and scaled provided in the attached Exhibit "A" being drawings
measurements on the Drawings and in the Design, the and plans, which are made hereof.
numbers shall govern, as between larger scale and
smaller scale drawings, the larger scale shall govern.
1.5.9 Neither the organization of any of the
Contract Documents into divisions, sections,
paragraphs, articles, (or other categories), nor the
organization or arrangement of the Design, shall
control the Contractor in dividing the Work or in
establishing the extent or scope of the Work to be
performed by Subcontractors.
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2.2.2 The Contractor shall be responsible for but not required, to withheld fFem any arnounts
paying for and procuring all materials and labor and otherwise due the Contractor an amount- then
furnishing all services necessary or appropriate for believed by the OwneF to be adequate to recove
the full performance of the Work and the for the full damages liquidated completion of the Project. All materials shall be new when the Contracter overcomes the delay in
and materials and workmanship shall be of good aehieving
quality. Upon request, the Contractor shall furnish thereof-, f h h the n r has withheld payment,
satisfactory proof of the type, kind, and quality of the Owner shall promptly release to the Gentracto
materials. these funds =held, out no longer applicable, as
liquidated damages.
3.1.3 No claim shall be made by the
ARTICLE III Contractor to the Owner, and no damages, costs or
extra compensation shall be allowed or paid by the
CONTRACT TIME Owner to the Contractor for any delay or hindrance
from any cause in the progress or completion of the
3.1 TIME AND LIQUIDATED DANIAGES,go 3)19, Work or this Contract. The Contractor's sole remedy
in the event of any delay or hindrance shall be to
3.1.1 The Contractor shall comme ce the 40- request time extensions by written change orders as
Work within 15 days of receipt of a writte otice to vided for hereinafter. Should the Contractor be
Proceed, and shall achieve Substantial ompletion of delayed by an act of the Owner, or should the Owner
the Work no later than i4mty-(96)calendar days order a stoppage of the Work for sufficient cause, an
from the date of notice to proceed and securing the extension of time shall be granted by the Owner by
building permit. The parties acknowledge that time written authorization upon written application, which
is of the essence in the performance of the terms of extension shall not be unreasonably denied, to
this Contract. The term "calendar days" shall mean compensate for the delay.
any and all days of the week or month, no days being
excepted. It is contemplated by the parties that the 3.1.4 The Owner shall have the authority to
progress of the Work may be delayed by certain suspend the Work wholly or in part for such period or
conditions beyond the control of the parties; these periods of time as it may deem appropriate due to
delays have been contemplated by the parties and unsuitable conditions considered unfavorable for the
considered in the time allotted for performance proper prosecution of the Work or for the failure of
specified herein and includes, but is not limited to the Contractor to carry out instructions from the
delays occasioned on account of adverse weather, Owner or Owner's representative. During any period
temporary unavailability of materials, shipment in which the Work is stopped or during which any of
delays, and the presence and potential interference of the Work is not actively in progress for any reason,
other contractors who may be performing work at the Contractor shall properly protect the site and the
Project site unrelated to this agreement. Work from damage, loss or harm.
The number of calendar days from the date on which 3.2 SUBSTANTIAL COMPLETION
the Work is permitted to proceed, through the date set
forth for Substantial Completion, shall constitute the 3.2.1 "Substantial Completion" shall mean
"Contract Time". that stage in the progression of the Work when the
Work is sufficiently complete in accordance with this
3 1 2 The Gontr°^*^r shall pa the Owner the Contract that the Owner can enjoy beneficial use or
surn of $240.00 peF day f4 each and every calendaF occupancy of the Work and can utilize the Work for
day of unexeused delay achieving Substantial its intended purpose, even though minor
Gernpletie„ beyond the date set forth herei . f r miscellaneous work and/or adjustment may be
SuhstA„t, Completion of the Work. Any sums due required.
and payable heroun er- by the Contractor shall h°
damages payable, not as a penalty, but as liquidated 3.3 TIME IS OF THE ESSENCE
n estimate of delay damages likely to
hFe 'Isla;.., by the Owner, eestimated at or before the 3.3.1 All limitations of time set forth in the
time of executing -thisCOBtraet. When the O nor Contract Documents are of the essence of this
.,ably believes !hat Substantial Gempletion will Contract.
be inexcusably delayed the Owner shall be entitled
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ARTICLE IV Contractor shall submit an Application for Payment
for the period ending the 15th day of the month to the
CONTRACT PRICE Owner in such form and manner, and with such
supporting data and content, as the Owner may
4.1 THE CONTRACT PRICE require. Therein, the Contractor may request
payment for ninety percent (90%) of that portion of
4.1.1 The Owner shall pay, and the the Contract Price properly allocable to Contract
Contractor shall accept, as full and complete payment requirements properly provided, labor, materials and
for all of the Work required herein, the fixed sum of equipment properly incorporated in the Work, less
ninety three thousand, seven hundred and sixty-five the total amount of previous payments received from
dollars and no cents ($93,765.00) the Owner. Such Application for Payment shall be
signed by the Contractor and shall constitute the
The sum set forth in this Paragraph 4.1 shall Contractor's representation that the Work has
constitute the Contract Price which shall not be progressed to the level for which payment is
modified except by written Change Order as provided requested in accordance with the Schedule of Values,
in this Contract. that the Work has been properly installed or
performed in full compliance with this Contract, and
that the Contractor knows of no reason why payment
should not be made as requested. Thereafter, the
ARTICLE V Owner will review the Application for Payment and
may also review the Work at the Project site or
PAYMENT OF THE CONTRACT PRICE elsewhere to determine whether the quantity and
quality of the Work is as represented in the
5.1 SCHEDULE OF VALUES Application for Payment and is as required by this
Contract. The Owner shall determine and certify the
5.1.1 Within fifteen (15) calendar days of the amount properly owing to the Contractor. The
effective date hereof, the Contractor shall submit to Owner shall make partial payments on account of the
the Owner a Schedule of Values allocating the Contract Price to the Contractor within thirty (30)
Contract Price to the various portions of the Work. days following receipt and approval of each
The Contractor's Schedule of Values shall be Application for Payment. The amount of each partial
prepared in such form, with such detail, and payment shall be the amount certified for payment by
supported by such data the Owner may require to the Owner less such amounts, if any, otherwise
substantiate its accuracy. The Contractor shall not owing by the Contractor to the Owner or which the
imbalance its Schedule of Values nor artificially Owner shall have the right to withhold as authorized
inflate any element thereof. The violation of this by this Contract. The Owner's certification of the
provision by the Contractor shall constitute a material Contractor's Application for Payment shall not
breach of this Contract. The Schedule of Values preclude the Owner from the exercise of any of its
shall be used only as a basis for the Contractor's rights as set forth in Paragraph 5.3 herein below.
Applications for Payment and shall only constitute
such basis after it has been acknowledged and 5.2.4 The Contractor warrants that title to all
accepted in writing by the Architect and the Owner. Work covered by an Application for Payment will
pass to the Owner no later than the time of payment.
5.2 PAYMENT PROCEDURE The Contractor further warrants that upon submittal
of an Application for Payment, all Work for which
5.2.1 The Owner shall pay the Contract Price payments have been received from the Owner shall
to the Contractor as provided in Exhibit "A," which be free and clear of liens, claims, security interest or
is attached hereto and made a part hereof. other encumbrances in favor of the Contractor or any
other person or entity whatsoever.
5.2.2 PROGRESS PAYMENTS - Based upon the
Contractor's Applications for Payment submitted to 5.2.5 The Contractor shall promptly pay each
the Owner and upon Certificates for Payment issued, Subcontractor out of the amount paid to the
the Owner shall make progress payments to the Contractor on account of such Subcontractor's Work,
Contractor on account of the Contract Price. the amount to which such Subcontractor is entitled.
In the event the Owner becomes informed that the
5.2.3 On or before the 25th day of each Contractor has not paid a Subcontractor as herein
month after commencement of the Work, the provided, the Owner shall have the right, but not the
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duty, to issue future checks in payment to the duty to third parties to withhold payment to the
Contractor of amounts otherwise due hereunder Contractor and shall incur no liability for a failure to
naming the Contractor and such Subcontractor as withhold funds.
joint payees. Such joint check procedure, if
employed by the Owner, shall create no rights in Owner shall required Contractor to sign
favor of any person or entity beyond the right of the a bills paid affidavit for each and every pay request
named payees to payment of the check and shall not and application for payment as provided in Section
be deemed to commit the Owner to repeat the 5.2.2 of this Agreement. Contractor shall also
procedure in the future. provide upon receiving the notice to proceed a list of
all materialmen and subcontractors with contact
5.2.6 No progress payment, nor any use or information.
occupancy of the Project by the owner, shall be
interpreted to constitute an acceptance of any Work 5.4 UNEXCUSED FAILURE TO PAN'
not in strict accordance with this Contract.
5.4.1 If within fifteen (15) days after the date
5.3 WITHHELD PAYMENT established herein for payment to the Contractor by
the Owner, the Owner, without cause or basis
5.3.1 The Owner may decline to make hereunder, fails to pay the Contractor any amount
payment, may withhold funds, and, if necessary, may then due and payable to the Contractor, then the
demand the return of some or all of the amounts Contractor may after ten (10) additional days' written
previously paid to the Contractor, to protect the notice to the Owner, and without prejudice to any
Owner from loss because of other available rights or remedies it may have, stop
the Work until payment of those amounts due from
(a) defective Work not remedied by the the Owner have been received. Late payments shall
Contractor nor, in the opinion of the not accrue interest or other late charges.
Owner, likely to be remedied by the
Contractor; 5.5 SUBSTANTIAL COMPLETION
(b) claims of third parties against the 5.5.1 When the Contractor believes that the
Owner or the Owner's property; Work is substantially complete, the Contractor shall
submit to the Owner a list of items to be completed or
(c) failure by the Contractor to pay corrected. When the Owner on the basis of an
Subcontractors or others in a prompt inspection determines that the Work is in fact
and proper fashion; substantially complete, it will prepare a Certificate of
Substantial Completion which shall establish the date
(d) evidence that the balance of the Work of Substantial Completion, shall state the
cannot be completed in accordance with responsibilities of the Owner and the Contractor for
the Contract for the unpaid balance of Project security, maintenance, heat, utilities, damage
the Contract Price, to the Work, and insurance, and shall fix the time
within which the Contractor shall complete the items
(e) evidence that the Work will not be listed therein. Guarantees required by the Contract
completed in the time required for shall commence on the date of Substantial
substantial or final completion; Completion of the Work. The Certificate of
Substantial Completion shall be submitted to the
(f) persistent failure to carry out the Work Owner and the Contractor for their written
in accordance with the Contract; acceptance of the responsibilities assigned to them in
such certificate.
(g) damage to the Owner or a third party to
whom the Owner is, or may be, liable. Upon Substantial Completion of the Work, and
execution by both the Owner and the Contractor of
In the event that the Owner makes the Certificate of Substantial Completion, the Owner
written demand upon the Contractor for amounts shall pay the Contractor an amount sufficient to
previously paid by the Owner as contemplated in this increase total payments to the Contractor to one
Subparagraph 5.3.1, the Contractor shall promptly hundred percent (100°/x) of the Contract Price less
comply with such demand. The Owner shall have no three hundred percent (300%) of the reasonable cost
as determined by the Owner for completing all
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incomplete Work, correcting and bringing into fully paid or otherwise satisfied; releases and waivers
conformance all defective and nonconforming Work, of lien from all Subcontractors of the Contractor and
and handling all unsettled claims. of any and all other parties required by the Owner;
consent of Surety, if any, to final payment. If any
5.6 CO1tPLETION AND FINAL PAYMENT third party fails or refuses to provide a release of
claim or waiver of lien as required by the Owner, the
5.6.1 When all of the Work is finally Contractor shall furnish a bond satisfactory to the
complete and the Contractor is ready for a final Owner to discharge any such lien or indemnify the
inspection, it shall notify the Owner thereof in Owner from liability.
writing. Thereupon, the Owner will make final
inspection of the Work and, if the Work is complete 5.6.3 The Owner shall make final payment of
in full accordance with this Contract and this all sums due the Contractor within ten (10) days of
Contract has been fully performed, the Owner will the execution of a final Certificate for Payment.
promptly issue a final Certificate for Payment
certifying that the Project is complete and the 5.6.4 Acceptance of final payment shall
Contractor is entitled to the remainder of the unpaid constitute a waiver of all claims against the Owner by
Contract Price, less any amount withheld pursuant to the Contractor except for those claims previously
this Contract. If the Owner is unable to issue its final made in writing against the Owner by the Contractor,
Certificate for Payment and is required to repeat its pending at the time of final payment, and identified
final inspection of the Work, the Contractor shall in writing by the Contractor as unsettled at the time
bear the cost of such repeat final inspection(s) which of its request for final payment.
cost may be deducted by the Owner from the
Contractor's final payment. 5.6.5 Under no circumstance shall Contractor
be entitled to receive interest on any payments or
5.6.1.1 If the Contractor fails to achieve final monies due Contractor by the Owner, whether the
completion within the time fixed therefore by the amount on which the interest may accrue is timely,
Owner in its Certificate of Substantial Completion, late, wrongfully withheld, or an assessment of
the Contractor shall pay the Owner the sum set forth damages of any kind.
hereinabove as liquidated damages per day for each
and every calendar day of unexcused delay in
achieving final completion beyond the date set forth
herein for final completion of the Work. Any sums ARTICLE VI
due and payable hereunder by the Contractor shall be
payable, not as a penalty, but as liquidated damages THE OWNER
representing an estimate of delay damages likely to
be sustained by the Owner, estimated at or before the 6.1 INFORMATION, SERVICES AND THINGS
time of executing this Contract. When the Owner
reasonably believes that final completion will be REQUIRED FROM OWNER
inexcusably delayed, the Owner shall be entitled, but
not required, to withhold from any amounts 6.1.1 The Owner shall furnish to the
otherwise due the Contractor an amount then Contractor, at the time of executing this Contract, any
believed by the Owner to be adequate to recover and all written and tangible material in its possession
liquidated damages applicable to such delays. If and concerning conditions below ground at the site of the
when the Contractor overcomes the delay in Project.
achieving final completion, or any part thereof, for
which the Owner has withheld payment, the Owner Such written and tangible material is furnished to the
shall promptly release to the Contractor those funds Contractor only in order to make complete disclosure
withheld, but no longer applicable, as liquidated of such material and for no other purpose. By
damages. furnishing such material, the Owner does not
represent, warrant, or guarantee its accuracy either in
5.6.2 The Contractor shall not be entitled to whole, in part, implicitly or explicitly, or at all, and
final payment unless and until it submits to the shall have no liability therefore. The Owner shall
Owner its affidavit that all payrolls, invoices for also furnish surveys, legal limitations and utility
materials and equipment, and other liabilities locations (if known), and a legal description of the
connected with the Work for which the Owner, or the Project site.
Owner's property might be responsible, have been
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6.1.2 Excluding permits and fees normally Contractor performs any of the Work knowing it
the responsibility of the Contractor, the Owner shall involves a recognized error, inconsistency or
obtain all approvals, easements, and the like required omission in the Contract Documents without such
for construction and shall pay for necessary notice to the Owner, the Contractor shall bear
assessments and charges required for construction, responsibility for such performance and shall bear the
use or occupancy of permanent structures or for cost of correction.
permanent changes in existing facilities.
7.2 The Contractor shall perform the Work
6.1.3 The Owner shall furnish the Contractor, strictly in accordance with this Contract.
free of charge, one copy of the Contract Documents
for execution of the Work. 7.3 The Contractor shall supervise and
direct the Work using the Contractor's best skill,
6.2 RIGHT TO STOP WORK effort and attention. The Contractor shall be
responsible to the Owner for any and all acts or
6.2.1 If the Contractor persistently fails or omissions of the Contractor, its employees and others
refuses to perform the Work in accordance with this engaged in the Work on behalf of the Contractor.
Contract, or if the best interests of the public health,
safety or welfare so require, the Owner may order the 7.3.1 The Contractor shall give adequate
Contractor to stop the Work, or any described portion attention to the faithful prosecution of the Work and
thereof, until the cause for stoppage has been the timely completion of this Contract, with authority
corrected, no longer exists, or the Owner orders that to determine the manner and means of performing
Work be resumed. In such event, the Contractor shall such Work, so long as such methods insure timely
immediately obey such order. completion and proper performance.
6.3 OWNER'S RIGHT TO PERFORM WORK 7.3.2 The Contractor shall exercise all
appropriate means and measures to insure a safe and
6.3.1 If the Contractor's Work is stopped by secure jobsite in order to avoid and prevent injury,
the Owner under Paragraph 6.2, and the Contractor damage or loss to persons or property.
fails within seven (7) days of such stoppage to
provide adequate assurance to the Owner that the 7.4 WARRANTY
cause of such stoppage will be eliminated or
corrected, then the Owner may, without prejudice to 7.4.1 The Contractor warrants to the Owner
any other rights or remedies the Owner may have that all labor furnished to progress the Work under
against the Contractor, proceed to carry out the this Contract will be competent to perform the tasks
subject Work. In such a situation, an appropriate undertaken, that the product of such labor will yield
Change Order shall be issued deducting from the only first-class results, that materials and equipment
Contract Price the cost of correcting the subject furnished will be of good quality and new unless
deficiencies, plus compensation for additional otherwise permitted by this Contract, and that the
services and expenses necessitated thereby, if any. If Work will be of good quality, free from faults and
the unpaid portion of the Contract Price is defects and in strict conformance with this Contract.
insufficient to cover the amount due the Owner, the All Work not conforming to these requirements may
Contractor shall pay the difference to the Owner. be considered defective.
7.5 The Contractor shall obtain and pay for
all permits, fees and licenses necessary and ordinary
ARTICLE VII for the Work. The Contractor shall comply with all
lawful requirements applicable to the Work and shall
THE CONTRACTOR give and maintain any and all notices required by
applicable law pertaining to the Work.
7.1 The Contractor is again reminded of its
continuing duty set forth in Subparagraph 1.5.7. The 7.6 SUPERVISION
Contractor shall perform no part of the Work at any
time without adequate Contract Documents or, as 7.6.1 The Contractor shall employ and
appropriate, approved Shop Drawings, Product Data maintain at the Project site only competent
or Samples for such portion of the Work. If the supervisory personnel. Absent written instruction
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from the Contractor to the contrary, the 7.9 SHOP DRAWINGS, PRODUCT
superintendent shall be deemed the Contractor's
authorized representative at the site and shall be DATA AND SAMPLES
authorized to receive and accept any and all
communications from the Owner. 7.9.1 Shop Drawings, Product Data, Samples
and other submittals from the Contractor do not
7.6.2 Key supervisory personnel assigned by the constitute Contract Documents. Their purpose is
Contractor to this Project are as follows: merely to demonstrate the manner in which the
Contractor intends to implement the Work in
NAME FUNCTION conformance with information received from the
Contract Documents.
Supervisor
7.9.2 The Contractor shall not perform any
Inspector portion of the Work requiring submittal and review
of Shop Drawings, Product Data or Samples unless
Dale Cheatham City Manager and until such submittal shall have been approved by
the Owner. Approval by the Owner, however, shall
So long as the individuals named above remain not be evidence that Work installed pursuant thereto
actively employed or retained by the Contractor, they conforms with the requirements of this Contract.
shall perform the functions indicated next to their
names unless the Owner agrees to the contrary in 7.10 CLEANING THE SITE
writing. In the event one or more individuals not
listed above subsequently assume one or more of AND THE PROJECT
those functions listed above, the Contractor shall be
bound by the provisions of this Subparagraph 7.6.2 as 7.10.1 The Contractor shall keep the site
though such individuals had been listed above. reasonably clean during performance of the Work.
Upon final completion of the Work, the Contractor
7.7 The Contractor, within fifteen (15) days of shall clean the site and the Project and remove all
commencing the Work, shall submit to the Owner for waste, rubbish, temporary structures, and other
its information, the Contractor's schedule for materials together with all of the Contractor's
completing the Work. The Contractor's schedule property therefrom. Contractor shall dispose of all
shall be revised no less frequently than monthly refuse at a Texas Natural Resource Conservation
(unless the parties otherwise agree in writing) and Commission approved landfill. The Contractor shall
shall be revised to reflect conditions encountered further restore all property damaged during the
from time to time and shall be related to the entire prosecution of the Work and shall leave the site in a
Project. Each such revision shall be furnished to the clean and presentable condition. No additional
Owner. Failure by the Contractor to strictly comply payment shall be made by the Owner for this work,
with the provisions of this Paragraph 7.7 shall the compensation having been considered and
constitute a material breach of this Contract. included in the contract price.
7.8 The Contractor shall continuously 7.11 ACCESS TO WORK AND INSPECTIONS
maintain at the site, for the benefit of the owner, one
record copy of this Contract marked to record on a 7.1 1.1 The Owner shall have access to the
current basis changes, selections and modifications Work at all times from commencement of the Work
made during construction. Additionally, the through final completion. The Contractor shall take
Contractor shall maintain at the site for the Owner the whatever steps necessary to provide access when
approved Shop Drawings, Product Data, Samples and requested. When reasonably requested by the Owner,
other similar required submittals. Upon final the Contractor shall perform or cause to be performed
completion of the Work, all of these record such testing as may be necessary or appropriate to
documents shall be delivered to the Owner. insure suitability of the jobsite or the Work's
compliance with the Contract requirements.
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7.12 INDEMNITY AND DISCLAIMER OWNER'S NEGLIGENCE, WHETHER
SUCH NEGLIGENCE IS THE SOLE OR
7.12.1 OWNER SHALL NOT BE PARTIAL CAUSE OF ANY SUCH
LIABLE OR RESPONSIBLE FOR, AND INJURY, DEATH, OR DAMAGE.
SHALL BE INDEMNIFIED, DEFENDED,
HELD HARMLESS AND RELEASED BY 7.12.2 The Contractor will secure and maintain
CONTRACTOR FROM AND AGAINST Contractual Liability insurance to cover this
ANY AND ALL SUITS, ACTIONS, indemnification agreement that will be primary and
non-contributory as to any insurance maintained by
LOSSES, DAMAGES, CLAIMS, OR the Owner for its own benefit, including self-
LIABILITY OF ANY CHARACTER, insurance. In addition, Contractor shall obtain and
TYPE, OR DESCRIPTION, INCLUDING file with Owner a Certificate of Insurance evidencing
ALL EXPENSES OF LITIGATION, the required coverage.
COURT COSTS, AND ATTORNEY'S 7 12 3 In claims against any person or entity
FEES FOR INJURY OR DEATH TO ANY indemnified under this Paragraph 7.12 by an
PERSON, OR INJURY OR LOSS TO ANY employee of the Contractor, a Subcontractor, anyone
PROPERTY, RECEIVED OR directly or indirectly employed by them or anyone for
SUSTAINED BY ANY PERSON OR Whose acts they may be liable, the indemnification
PERSONS INCLUDING THE obligation under this Paragraph 7.12 shall not be
CONTRACTOR OR PROPERTY limited by a limitation on amount or type of damages,
, compensation or benefits payable by or for the
ARISING OUT OF, OR OCCASIONED Contractor or a Subcontractor under workers'
BY, DIRECTLY OR INDIRECTLY, THE compensation acts, disability benefit acts or other
PERFORMANCE OF CONTRACTOR employee benefit acts.
UNDER THIS AGREEMENT, 7.13 NONDISCRIMINATION
INCLUDING CLAIMS AND DAMAGES
ARISING IN WHOLE OR IN PART 7.13.1 The Contractor shall not discriminate in
FROM THE NEGLIGENCE OF OWNER, any way against any person, employee or job
WITHOUT, HOWEVER, WAIVING ANY applicant on the basis of race, color, creed, national
GOVERN-MENTAL IMMUNITY original, religion, age, sex, or disability where
AVAILABLE TO THE OWNER UNDER reasonable accommodations can be effected to enable
the person to perform the essential functions of the
TEXAS LAW AND WITHOUT WAIVING job. The Contractor shall further insure that the
ANY DEFENSES OF THE PARTIES foregoing nondiscrimination requirement shall be
UNDER TEXAS LAW. THE made a part and requirement of each subcontract on
PROVISIONS OF THIS INDEMNI- this Project.
FICATION ARE SOLELY FOR THE 7.14 PREVAILING WAGE RATES
BENEFIT OF THE PARTIES HERETO
AND NOT INTENDED TO CREATE OR 7.14.1 The Contractor shall comply in all
GRANT ANY RIGHTS, CONTRACTUAL respects with all requirements imposed by any laws,
OR OTHERWISE, TO ANY OTHER ordinances or resolutions applicable to the Project
PERSON OR ENTITY. IT IS THE With regard to the minimum prevailing wage rates for
EXPRESSED INTENT OF THE PARTIES all classes of employees, laborers, subcontractors,
mechanics, workmen and persons furnishing labor
TO THIS AGREEMENT THAT THE and services to the Project. The City of The Colony
INDEMNITY PROVIDED FOR IN THIS has adopted a Prevailing Wage Rate Schedule,
CONTRACT IS AN INDEMNITY available to the Contractor by request, which
EXTENDED BY CONTRACTOR TO specifies the classes and wage rates to be paid to all
INDEMNIFY AND PROTECT OWNER Persons. The Contractor shall pay not less than the
minimum wage rates established thereby for each
FROM THE CONSEQUENCES OF THE class, craft or type of labor, workman, or mechanic
CONTRACTOR'S AS WELL AS THE employed in the execution of this Contract. The
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failure of the Contractor to comply with this utility services provided to the jobsite or which
requirement shall result in the forfeiture to the City of presently exists at, above or beneath the location
The Colony of a sum of not less than Sixty Dollars where the Work is to be performed. In the event that
($60.00) for each person per day, or portion thereof, any utility or utility service is disturbed or damaged
that such person is paid less than the prevailing rate. during the progress of the Work, the Contractor shall
Upon request by the Owner, Contractor shall make forthwith repair, remedy or restore the utility at
available for inspection and copying its books and Contractor's sole expense.
records, including but not limited to its payroll
records, account information and other documents as 7.17.2 The Contractor understands and
may be required by the Owner to insure compliance acknowledges that other contractors of the Owner or
with this provision. of other entities may be present at the jobsite
performing other work unrelated to the Project. The
7.15 JOB SITE SAFETY PRECAUTIONS Contractor shall use best efforts to work around other
contractors without impeding the work of others
7.15.1 The Contractor shall at all times while still adhering to the completion date established
exercise reasonable precautions for the safety of its herein. In the event that the Contractor's work is or
employees, laborers, subcontractors, mechanics, may be delayed by any other person, the Contractor
workmen and others on and near the jobsite and shall shall immediately give notice thereof to the Owner
comply with all laws, ordinances, regulations, and and shall request a written Change Order in
standards of federal, state and local safety laws and accordance with the procedures set forth by this
regulations. The Contractor shall provide such Contract. The Contractor's failure to provide such
machinery guards, safe walk-ways, ladders, bridges, notice and to request such Change Order shall
and other safety devices as may be necessary or constitute a waiver of any and all claims associated
appropriate to insure a safe and secure jobsite and therewith.
shall require its subcontractors to comply with this
requirement. The Contractor shall immediately
comply with any and all safety requirements imposed
by the Owner during the progress of the Work. ARTICLE VIII
7.16 WARNING DEVICES AND BARRICADES CONTRACT ADMINISTRATION
7.16.1 The Contractor shall furnish and maintain 8.1 TILE ARCHITECT
such warning devices, barricades, lights, signs,
pavement markings, and other devices as may be 8.1.1 When used in this Contract the term
necessary or appropriate or required by the Owner to "Architect" does not necessarily denote a duly
protect persons or property in, near or adjacent to the licensed, trained or certified architect; as used herein,
jobsite, including . No separate compensation shall the term shall be used interchangeably and shall
be paid to the Contractor for such measures. Where mean a designated Architect, Engineer, or Contract
the Work is being conducted in, upon or near streets, Administrator (who may not be an architect or
alleys, sidewalks, or other rights-of-way, the engineer) for the Owner, said person to be designated
Contractor shall insure the placement, maintenance or redesignated by the Owner prior to or at any time
and operation of any and all such warning devices as during the Work hereunder. The Architect may be an
may be required by the City of The Colony and shall employee of the Owner or may be retained by the
do so until no longer required by the City. Such Owner as an independent contractor but, in either
devices shall be in compliance with and conform to event, the Architect's duties and authority shall be as
the manual and specifications for the uniform system set forth hereinafter. The Contractor understands and
of traffic control devices adopted by the Texas agrees that it shall abide by the decisions and
Department of Transportation. instructions of the Architect notwithstanding the
contractual relationship between the Owner and
7.17 PROTECTION OF UTILITIES Architect. All of the Owner's instructions to the
Contractor shall be through the Architect.
AND OTHER CONTRACTORS
In the event the Owner should find it necessary or
7.17.1 The Contractor shall use best efforts to convenient to replace the Architect, the Owner shall
leave undisturbed and uninterrupted all utilities and retain a replacement Architect and the status of the
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replacement Architect shall be that of the former the Owner for the Owner's review and records,
Architect. written warranties and related documents required by
this Contract and will issue a final Certificate for
8.2 ARCHITECT'S ADMINISTRATION Payment upon compliance with the requirements of
this Contract.
8.2.1 The Architect, unless otherwise directed
by the Owner in writing, will perform those duties 8.2.9 The Architect's decisions in matters
and discharge those responsibilities allocated to the relating to aesthetic effect shall be final if consistent
Architect as set forth in this Contract. The Architect with the intent of this Contract.
shall be the Owner's representative from the effective
date of this Contract until final payment has been 8.3 CLAIMS BY THE CONTRACTOR
made.
8.3.1 The Owner shall determine all claims
8.2.2 The Owner and the Contractor shall and matters in dispute between the Contractor and
communicate with each other in the first instance Owner with regard to the execution, progress, or
through the Architect. sufficiency of the Work or the interpretation of the
Contract Documents, including but not limited to the
8.2.3 The Architect shall be the initial plans and specifications. Any dispute shall be
interpreter of the requirements of the drawings and submitted in writing to the Owner within seven (7)
specifications and the judge of the performance days of the event or occurrence or the first
thereunder by the Contractor. The Architect shall appearance of the condition giving rise to the claim
render written or graphic interpretations necessary for or dispute who shall render a written decision within
the proper execution or progress of the Work with a reasonable time thereafter. The Owner's decisions
reasonable promptness on request of the Contractor. shall be final and binding on the parties. In the event
that either party objects to the Owner's determination
8.2.4 The Architect will review the as to any submitted dispute, that party shall submit a
Contractor's Applications for Payment and will written objection to the Owner and the opposing
certify to the Owner for payment to the Contractor, party within ten (10) days of receipt of the Owner's
those amounts then due the Contractor as provided in written determination in order to preserve the
this Contract. objection. Failure to so object shall constitute a
waiver of the objection for all purposes.
8.2.5 The Architect shall have authority to
reject Work which is defective or does not conform 8.3.2 Pending final resolution of any claim of
to the requirements of this Contract. If the Architect the Contractor, the Contractor shall diligently
deems it necessary or advisable, the Architect shall proceed with performance of this Contract and the
have authority to require additional inspection or Owner shall continue to make payments to the
testing of the Work for compliance with Contract Contractor in accordance with this Contract.
requirements.
8.3.3 CLAIMS FOR CONCEALED, LATENT OR
8.2.6 The Architect will review and approve, UNKNOWN CONDITIONS - The Contractor expressly
or take other appropriate action as necessary, represents that it has been provided with an adequate
concerning the Contractor's submittals including opportunity to inspect the Project site and thoroughly
Shop Drawings, Product Data and Samples. Such review the Contract Documents and plans and
review, approval or other action shall be for the sole specifications prior to submission of its bid and the
purpose of determining conformance with the design Owner's acceptance of the bid. Subject to the
concept and information given through the Contract conditions hereof, Contractor assumes full
Documents. responsibility and risk for any concealed, latent or
unknown condition which may affect the Work. No
8.2.7 The Architect will prepare Change claims for extra work or additional compensation
Orders and may authorize minor changes in the Work shall be made by Contractor in connection with
by Field Order as provided elsewhere herein. concealed, latent or unknown conditions except as
expressly provided herein. Should concealed, latent
8.2.8 The Architect shall, upon written or unknown conditions encountered in the
request from the Contractor, conduct inspections to performance of the Work (a) below the surface of the
determine the date of Substantial Completion and the ground or (b) in an existing structure be at variance
date of final completion, will receive and forward to with the conditions indicated by this Contract, or
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should unknown conditions of an unusual nature unusually adverse weather conditions not reasonably
differing materially from those ordinarily anticipated, fire or any causes beyond the
encountered in the area and generally recognized as Contractor's control, then the date for achieving
inherent in Work of the character provided for in this Substantial Completion of the Work shall be
Contract, be encountered, the Contract Price shall be extended upon the written notice and claim of the
equitably adjusted by Change Order upon the written Contractor to the Owner, for such reasonable time as
notice and claim by either party made within seven the Owner may determine. Any notice and claim for
(7) days after the first observance of the condition. an extension of time by the Contractor shall be made
As a condition precedent to the Owner having any not more than seven (7) days after the occurrence of
liability to the Contractor for concealed or unknown the event or the first appearance of the condition
conditions, the Contractor must give the Owner and giving rise to the claim and shall set forth in detail the
the Architect written notice of, and an opportunity to Contractor's basis for requiring additional time in
observe, the condition prior to disturbing it. The which to complete the Project. In the event the delay
failure by the Contractor to make the written notice to the Contractor is a continuing one, only one notice
and claim as provided in this Subparagraph shall and claim for additional time shall be necessary. If
constitute a waiver by the Contractor of any claim the Contractor fails to make such claim as required in
arising out of or relating to such concealed, latent or this Subparagraph, any claim for an extension of time
unknown condition and the Contractor thereby shall be waived. The procedures and remedies
assumes all risks and additional costs associated provided by this provision shall be the sole remedy of
therewith. Contractor and Contractor shall not assert nor be
entitled to any additional delays or damages
8.3.4 CLAIMS FOR ADDITIONAL COSTS - If the associated therewith.
Contractor wishes to make a claim for an increase in
the Contract Price, as a condition precedent to any 8.4 FIELD ORDERS
liability of the Owner therefore, the Contractor shall
give the Owner written notice of such claim within 8.4.1 The Owner shall have authority to order
seven (7) days after the occurrence of the event, or minor changes in the Work not involving a change in
the first appearance of the condition, giving rise to the Contract Price or in Contract Time and not
such claim. Such notice shall be given by the inconsistent with the intent of the Contract. Such
Contractor before proceeding to execute any changes shall be effected by Field Order and shall be
additional or changed Work. The failure by the binding upon the Contractor. The Contractor shall
Contractor to give such notice and to give such notice carry out such Field Orders promptly.
prior to executing the Work shall constitute a waiver
of any claim for additional compensation. 8.5 MEDIATION
8.3.4.1 In connection with any claim by the 8.5.1 In the event that a dispute arises under
Contractor against the Owner for compensation in the terms of this Contract, following an adverse
excess of the Contract Price, any liability of the determination by the Owner and proper preservation
Owner for the Contractor's costs shall be strictly of the issue as required herein, the parties agree to
limited to direct costs incurred by the Contractor and submit to mediation. In such event, the parties shall
shall in no event include indirect costs or agree to a designated person to serve as mediator and
consequential damages of the Contractor. The each party shall be responsible for payment of one-
Owner shall not be liable to the Contractor for claims half of the total mediation fees. The parties shall
of third parties, including Subcontractors. The Owner submit the dispute to mediation as soon as practical
shall not be liable to the Contractor for any claims and in no event later than one (1) year after the
based upon delay to the Contractor for any reason Owner's written decision on the matter. At least one
whatsoever including any act or neglect on the part of designated representative of each party must attend
the Owner. and participate in good faith in an effort to resolve
the matters in dispute.
8.3.5 CLAIMS FOR ADDITIONAL TIME - If the
Contractor is delayed in progressing any task which 8.5.2 In no event shall the foregoing
at the time of the delay is then critical or which provision justify or authorize any delay in the
during the delay becomes critical, as the sole result of progress of the Work; the parties shall abide by the
any act or neglect to act by the Owner or someone decision of the Owner in accomplishing the timely
acting in the Owner's behalf, or by changes ordered completion of the Project.
in the Work, unusual delay in transportation,
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ARTICLE IX 10.1.2 Changes in the Work shall be
performed under applicable provisions of this
SUBCONTRACTORS Contract and the Contractor shall proceed promptly
with such changes.
9.1 DEFINITION
10.2 CHANGE ORDER DEFINED
9.1.1 A Subcontractor is an entity which has a
direct contract with the Contractor to perform a 10.2.1 Change Order shall mean a written
portion of the Work. No Subcontractor shall be in order to the Contractor executed by the Owner,
privity with the Owner. issued after execution of this Contract, authorizing
and directing a change in the Work or an adjustment
9.2 AWARD OF SUBCONTRACTS in the Contract Price or the Contract Time, or any
combination thereof. The Contract Price and the
9.2.1 Upon execution of the Contract, the Contract Time may be changed only by written
Contractor shall furnish the Owner, in writing, the Change Order.
names of persons or entities proposed by the
Contractor to act as a Subcontractor on the Project. 10.3 CHANGES IN THE CONTRACT PRICE
The Owner shall promptly reply to the Contractor, in
writing, stating any objections the Owner may have 10.3.1 Any change in the Contract Price
to such proposed Subcontractor. The Contractor resulting from a Change Order shall be determined as
shall not enter into a subcontract with a proposed follows: (a) by mutual agreement between the Owner
Subcontractor with reference to whom the Owner has and the Contractor as evidenced by (1) the change in
made timely objection. The Contractor shall not be the Contract Price being set forth in the Change
required to subcontract with any party to whom the Order, (2) such change in the Contract Price, together
Contractor has objection. with any conditions or requirements related thereto,
being initialed by both parties and (3) the
9.2.2 All subcontracts shall afford the Contractor's execution of the Change Order, or (b) if
Contractor rights against the Subcontractor which no mutual agreement occurs between the Owner and
correspond to those rights afforded to the Owner the Contractor, then, as provided in Subparagraph
against the Contractor herein, including those rights 10.3.2 below.
afforded to the Owner by Subparagraph 12.2.1
below. All subcontracts shall incorporate by 10.3.2 If no mutual agreement occurs between
reference the provisions hereof and shall provide that the Owner and the Contractor as contemplated in
no claims, causes or demands shall be made by any Subparagraph 10.3.1 above, the change in the
Subcontractor against the Owner. Contract Price, if any, shall then be determined by the
Owner on the basis of the reasonable expenditures or
9.2.3 The Contractor shall indemnify, defend savings of those performing, deleting or revising the
and hold harmless the Owner from and against any Work attributable to the change, including, in the
and all claims, demands, causes of action, damage, case of an increase or decrease in the Contract Price,
and liability asserted or made against the Owner by a reasonable allowance for direct job site overhead
or on behalf of any Subcontractor. and profit. In such case, the Contractor shall present,
in such form and with such content as the Owner
requires, an itemized accounting of such expenditures
or savings, plus appropriate supporting data for
ARTICLE X inclusion in a Change Order. Reasonable
expenditures or savings shall be limited to the
CHANGES IN THE WORK following: reasonable costs of materials, supplies, or
equipment including delivery costs, reasonable costs
10.1 CHANGES PERMITTED of labor, including social security, old age and
unemployment insurance, fringe benefits required by
10.1.1 Changes in the Work within the general agreement or custom, and workers' compensation
scope of this Contract, consisting of additions, insurance, reasonable rental costs of machinery and
deletions, revisions, or any combination thereof, may equipment exclusive of hand tools whether rented
be ordered without invalidating this Contract, by from the Contractor or others, reasonable costs of
Change Order or by Field Order. premiums for all bonds and insurance, permit fees,
and sales, use or other taxes related to the Work, and
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reasonable cost of direct supervision and jobsite field notified of such Change Order and to have expressly
office overhead directly attributable to the change. In consented thereto.
no event shall any expenditure or savings associated
with the Contractor's home office or other non jobsite ARTICLE XI
overhead expense be included in any change in the
Contract Price. Pending final determination of UNCOVERING AND CORRECTING WORK
reasonable expenditures or savings to the Owner,
payments on account shall be made to the Contractor 11.1 UNCOVERING WORK
on the Owner's Certificate for Payment.
11.1.1 If any of the Work is covered contrary
10.3.3 If unit prices are provided in the to the Owner's request or to any provisions of this
Contract, and if the quantities contemplated are so Contract, it shall, if required by the Architect or the
changed in a proposed Change Order that application Owner, be uncovered for the Architect's inspection
of such unit prices to the quantities of Work proposed and shall be properly replaced at the Contractor's
will cause substantial inequity to the Owner or to the expense without change in the Contract Time.
Contractor, the applicable unit prices shall be
equitably adjusted. 11.1.2 If any of the Work is covered in a
manner not inconsistent with Subparagraph 11.
10.4 MINOR CHANGES above, it shall, if required by the Architect or Owner,
be uncovered for the Architect's inspection. If such
10.4.1 The Architect shall have authority to Work conforms strictly with this Contract, costs of
order minor changes in the Work not involving a uncovering and proper replacement shall by Change
change in the Contract Price or an extension of the Order be charged to the Owner. If such Work does
Contract Time and not inconsistent with the intent of not strictly conform with this Contract, the
this Contract. Such minor changes shall be made by Contractor shall pay the costs of uncovering and
written Field Order, and shall be binding upon the proper replacement.
owner and the Contractor. The Contractor shall
promptly carry out such written Field Orders. 11.2 CORRECTING WORK
10.5 EFFECT OF EXECUTED 11.2.1 The Contractor shall immediately
proceed to correct Work rejected by the Architect as
CHANGE ORDER defective or failing to conform to this Contract. The
Contractor shall pay all costs and expenses associated
10.5.1 The execution of a Change Order by the with correcting such rejected Work, including any
Contractor shall constitute conclusive evidence of the additional testing and inspections, and reimbursement
Contractor's agreement to the ordered changes in the to the Owner for the Architect's services and
Work, this Contract as thus amended, the Contract expenses made necessary thereby.
Price and the Contract Time. The Contractor, by
executing the Change Order, waives and forever 11.2.2 If within one (1) year after Substantial
releases any claim against the Owner for additional Completion of the Work any of the Work is found to
time or compensation for matters relating to or be defective or not in accordance with this Contract,
arising out of or resulting from the Work included the Contractor shall correct it promptly upon receipt
within or affected by the executed Change Order. of written notice from the Owner. This obligation
shall survive final payment by the Owner and
10.6 NOTICE TO SURETY; CONSENT termination of this Contract. With respect to Work
first performed and completed after Substantial
10.6.1 The Contractor shall notify and obtain Completion, this one year obligation to specifically
the consent and approval of the Contractor's surety correct defective and nonconforming Work shall be
with reference to all Change Orders if such notice, extended by the period of time which elapses
consent or approvals are required by the Contractor's between Substantial Completion and completion of
surety or by law. The Contractor's execution of the the subject Work.
Change Order shall constitute the Contractor's
warranty to the Owner that the surety has been 11.2.3 Nothing contained in this Paragraph
notified of and consents to, such Change Order and 11.2 shall establish any period of limitation with
the surety shall be conclusively deemed to have been respect to other obligations which the Contractor has
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under this Contract. Establishment of the one year Owner as though the Owner had terminated the
time period in Subparagraph 1 1.2.2 relates only to the Contractor's performance under this Contract for
duty of the Contractor to specifically correct the convenience pursuant to Subparagraph 12.2.1
Work. hereunder.
11.3 OWNER MAY ACCEPT DEFECTIVE 12.2 TERMINATION BY THE OWNER
OR NONCONFORMING WORK 12.2.1 FOR CONVENIENCE
11.3.1 If the Owner chooses to accept 12.2.1.1 The Owner may for any reason
defective or nonconforming Work, the Owner may whatsoever terminate performance under this
do so. In such event, the Contract Price shall be Contract by the Contractor for convenience. The
reduced by the greater of (a) the reasonable cost of Owner shall give written notice of such termination
removing and correcting the defective or to the Contractor specifying when termination
nonconforming Work, and (b) the difference between becomes effective.
the fair market value of the Project as constructed and
the fair market value of the Project had it not been 12.2.1.2 The Contractor shall incur no further
constructed in such a manner as to include defective obligations in connection with the Work and the
or nonconforming Work. If the remaining portion of Contractor shall stop Work when such termination
the unpaid Contract Price, if any, is insufficient to becomes effective. The Contractor shall also
compensate the Owner for its acceptance of defective terminate outstanding orders and subcontracts. The
or nonconforming Work, the Contractor shall, upon Contractor shall settle the liabilities and claims
written demand from the Owner, pay the Owner such arising out of the termination of subcontracts and
remaining compensation for accepting defective or orders. The Owner may direct the Contractor to
nonconforming Work. assign the Contractor's right, title and interest under
terminated orders or subcontracts to the Owner or its
ARTICLE XII designee.
CONTRACT TERMINATION 12.2.1.3 The Contractor shall transfer title and
deliver to the Owner such completed or partially
12.1 TERMINATION BY TIIE CONTRACTOR completed Work and materials, equipment, parts,
fixtures, information and Contract rights as the
12.1.1 If the Work is stopped for a period of Contractor has.
ninety (90) days by an order of any court or other
public authority, or as a result of an act of the 12.2.1.4 (a) The Contractor shall submit a
Government, through no fault of the Contractor or termination claim to the Owner and
any person or entity working directly or indirectly for the Architect specifying the amounts
the Contractor, the Contractor may, upon ten (10) due because of the termination for
days' written notice to the Owner and the Architect, convenience together with costs,
terminate performance under this Contract and pricing or other data required by the
recover from the Owner payment for the actual Architect. If the Contractor fails to
reasonable expenditures of the Contractor (as limited file a termination claim within one (1)
in Subparagraph 10.3.2 above) for all Work executed year from the effective date of
and for materials, equipment, tools, construction termination, the Owner shall pay the
equipment and machinery actually purchased or Contractor, an amount derived in
rented solely for the Work, less any salvage value of accordance with subparagraph (c)
any such items. below.
12.1.2 If the Owner shall persistently or (b) The Owner and the Contractor may
repeatedly fail to perform any material obligation to agree to the compensation, if any, due
the Contractor for a period of fifteen (15) days after to the Contractor hereunder.
receiving written notice from the Contractor of its
intent to terminate hereunder, the Contractor may (c) Absent agreement to the amount due
terminate performance under this Contract by written to the Contractor, the Owner shall
notice to the Architect and the Owner. In such event, pay the Contractor the following
the Contractor shall be entitled to recover from the amounts:
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(i) Contract prices for labor, materials, equipment, tools, construction equipment and
equipment and other services machinery thereon owned by the Contractor and may
accepted under this Contract; finish the Work by whatever methods it may deem
expedient. In such case, the Contractor shall not be
(ii) Reasonable costs incurred in entitled to receive any further payment until the
preparing to perform and in Work is finished.
performing the terminated portion of
the Work, and in terminating the 12.2.2.2 If the unpaid balance of the Contract
Contractor's performance, plus a fair Price does not exceed the cost of finishing the work,
and reasonable allowance for including compensation for the Architect's additional
overhead and profit thereon (such services and expenses made necessary thereby, such
profit shall not include anticipated difference shall be paid by the Contractor to the
profit or consequential damages), Owner. This obligation for payment shall survive the
provided however, that if it appears termination of the Contract.
that the Contractor would have not
profited or would have sustained a 12.2.2.3 In the event the employment of the
loss if the entire Contract would have Contractor is terminated by the Owner for cause
been completed, no profit shall be pursuant to Subparagraph 12.2.2 and it is
allowed or included and the amount subsequently determined by a Court of competent
of compensation shall be reduced to jurisdiction that such termination was without cause,
reflect the anticipated rate of loss, if such termination shall thereupon be deemed a
any; Termination for Convenience under Subparagraph
12.2.1 and the provisions of Subparagraph 12.2.1
(iii) Reasonable costs of settling and shall apply.
paying claims arising out of the
termination of subcontracts or orders
pursuant to Subparagraph 12.2.1.2 of
this Paragraph. These costs shall not ARTICLE XIII
include amounts paid in accordance INSURANCE
with other provisions hereof.
13.1 CONTRACTOR BEFALL
The total sum to be paid the Contractor under this MAINTAIN INSURANCE
Subparagraph 12.2.1 shall not exceed the total
Contract Price, as properly adjusted, reduced by the 13.1.1 The Contractor at his own expense shall
amount of payments otherwise made, and shall in no purchase, maintain and keep in force during the life
event include duplication of payment. of this contract, adequate insurance that will protect
the Contractor and/or any Additional Insured from
12.2.2 FOR CAUSE claims which may arise out of or result from
operations under this contract. The insurance required
12.2.2.1 If the Contractor persistently or shall provide adequate protections from all claims,
repeatedly refuses or fails to prosecute the Work in a whether such operations be by the Contractor or by
timely manner, abandons the jobsite and fails to any Additional Insured or by any Subcontractor or by
resume work within five (5) days of written notice anyone directly or indirectly employed by any of
thereof by the Owner, fails to grant or allow access to them, or by anyone whose acts of any of them may
the jobsite by the Owner or Architect, fails to supply be liable and from any special hazards, such as
enough properly skilled workers, supervisory blasting, which may be encountered in the
personnel or proper equipment or materials, fails to performance of this contract in the amounts as shown
make prompt payment to Subcontractors or for below in Paragraph 13.2.1.
materials or labor, persistently disregards laws,
ordinances, rules, regulations or orders of any public 13.1.2 The Contractor shall not commence
authority having jurisdiction, or otherwise is guilty of work on any Contract in the City of The Colony until
a violation of a material provision of this Contract, the Contractor has obtained all the insurance required
then the Owner may by written notice to the under this paragraph and such insurance has been
Contractor, without prejudice to any other right or approved by the City.
remedy, terminate the employment of the Contractor
and take possession of the site and of all materials,
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13.2 TYPES AND AMOUNTS OF mail to City of The Colony, 6800 Main Street, The
Colony, Texas 75056.
CONTRACTOR'S INSURANCE
13.5 PREMIUMS AND ASSESSMENTS
13.2.1. The Contractor shall furnish and
maintain during the life of the contract adequate Companies issuing the insurance policies shall have
Worker's Compensation and Commercial General no recourse against the City for payment of any
Liability (Public) Insurance in such amounts as premiums or assessments for any deductibles which
follows: are at the sole responsibility and risk of the
Contractor.
Type of Insurance Amount
13.6 CERTIFICATE OF INSURANCE
Worker's Compensation as set forth in the Worker's
Compensation Act. Proof that the insurance is in force shall be furnished
to the City on a form approved by the City of The
Commercial General $1,000,000 Each Colony. In the event any insurance policy shown on
Accident/Occurrence. the Certificate of Insurance has an expiration date
that is prior to the completion and final acceptance of
Liability (Public) $1,000,000 Aggregate the project by the City of The Colony, the contractor
$1,000,000 Products & shall furnish the City proof of identical continued
Completed Operations coverage no later than thirty (30) days prior to the
Aggregate. expiration date shown on the Certificate of Insurance.
Owner's Protective $600,000 per occurrence 13.7 PRIMARY COVERAGE
Liability Insurance $1,000,000 aggregate The coverages provided herein shall be primary and
noncontributory with any other insurance maintained
Excess/Umbrella Liability $1,000,000 per occurrence by the City of The Colony, Texas, for its benefit,
w/drop down coverage including self insurance.
13.8 WORKER'S COMPENSATION
Endorsement CG 2503 Amendment Aggregate INSURANCE COVERAGE
Limit of Insurance per
Project or Owner's and 13.8.1 The Contractor shall:
Contractor's Protective
Liability Insurance for the (1) provide coverage for its employees
Project. providing services on a project, for the
duration of the project based on proper
Automobile Liability $500,000 Combined reporting of classification codes and
single limit per payroll amounts and filing of any
occurrence. coverage agreements;
13.3 ADDITIONAL INSURED (2) provide a certificate of coverage showing
workers' compensation coverage to the
The Owner shall be named as an additional insured governmental entity prior to beginning
on the Commercial General Liability (Public), work on the project;
Owner's Protective Liability, and Excess/Umbrella
Liability Insurance Policies furnished by the (3) provide the governmental entity prior to
Contractor. the end of the coverage period, a new
certificate of coverage showing extension
13.4 WRITTEN NOTIFICATION of coverage, if the coverage period shown
on the contractor's current certificate of
Each insurance policy shall contain a provision coverage ends during the duration of the
requiring that thirty (30) days prior to expiration, project;
cancellation, non-renewal or any material change in
coverage, a notice there of shall be given by certified
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(4) obtain from each person providing insurance. This includes persons providing, hauling,
services on a project, and provide to the or delivering equipment or materials, or providing
governmental entity: labor or transportation or other service related to the
project, regardless of the identity of their employer or
(A) a certificate of coverage, prior to that status as an employee."
person beginning work on the project,
so the governmental entity will have "Call the Texas Workers' Compensation Commission
on file certificates of coverage at 512-440-3789 to receive information on the legal
showing coverage for all persons requirement for coverage, to verify whether your
providing services on the project; and employer has provided the required coverage, or to
(B) no later than seven days after receipt report an employer's failure to provide coverage."
by the contractor, a new certificate of
coverage showing extension of and
coverage, if the coverage period
shown on the current certificate of (8) contractually require each person with
coverage ends during the duration of whom it contracts to provide services on a
the project; project, to:
(5) retain all required certificates of coverage (A) provide coverage based on proper
on file for the duration of the project and reporting of classification codes
for one year thereafter; and payroll amounts and filing of
any coverage agreements for all of
(6) notify the governmental entity in writing its employees providing services on
by certified mail or personal delivery, the project, for the duration of the
within 10 days after the contractor knew project;
or should have known, of any change that
materially affects the provision of (B) provide a certificate of coverage to
coverage of any person providing services the contractor prior to that person
on the project; beginning work on the project;
(7) post a notice on each project site (C) include in all contracts to provide
informing all persons providing services services on the project the language
on the project that they are required to be in subsection (e) (3) of this rule;
covered, and stating how a person may
verify current coverage and report failure (D) provide the Contractor, prior to the
to provide coverage. This notice does not end of the coverage period, a new
satisfy other posting requirements certificate of coverage showing
imposed by the Act or other commission extension of coverage, if the
rules. This notice must be printed with a coverage period shown on the
title in at least 30 point bold type and text current certificate of coverage ends
in at least 19 point normal type, and shall during the duration of the project;
be in both English and Spanish and any
other language common to the worker (E) obtain from each other person with
population. The text for the notices shall whom it contracts, and provide to
be the following text provided by the the Contractor:
Texas Worker's Compensation Comm-
ission on the sample notice, without any (i) a certificate of coverage,
additional words or changes: prior to the other person
beginning work on the
project; and
REQUIRED WORKERS' COMPENSATION
COVERAGE (ii) prior to the end of the
coverage period, a new
"The law requires that each person working on this certificate of coverage
site or providing services related to this construction showing extension of the
project must be covered by workers' compensation coverage period, if the
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coverage period shown on other party in respect to covenants, agreements and
the current certificate of obligations contained in this Contract. The
coverage ends during the Contractor shall not assign this Contract without
duration of the project; written consent of the Owner.
(F) retain all required certificates of 14.4 SEVERABILITY
coverage on file for the duration of
the project and for one year 14.4.1 The provisions of this Contract are
thereafter; herein declared to be severable; in the event that any
term, provision or part hereof is determined to be
(G) notify the governmental entity in invalid, void or unenforceable, such determination
writing by certified mail or shall not affect the validity or enforceability of the
personal delivery, within 10 days remaining terms, provisions and parts, and this
after the person knew or should Contract shall be read as if the invalid, void or
have known, of any change that unenforceable portion had not be included herein.
materially affects the provision of
coverage of any person providing 14.5 AMENDMENTS
services on the project; and
14.5.1 This Contract may be amended by the
(H) contractually require each other parties only by a written agreement duly executed by
person with whom it contracts, to both parties. The failure of the Owner to object to
perform as required by sub- any nonperformance or nonconforming work or to
paragraphs (A) - (H) of this enforce any provision hereof shall in no event be
paragraph, with the certificate of regarded as or construed to be a waiver, release or
coverage to be provided to the modification of any term or provision in this
person for whom they are Contract, nor shall such failure to object or enforce
providing services. estop the Owner from insisting on strict compliance
with this Contract or from recovering damages, costs
or expenses arising as a result of such
ARTICLE XIV nonperformance or nonconforming work.
MISCELLANEOUS 14.6 NOTICES
14.1 LAWS AND ORDINANCES 14.6.1 All notices required by this Contract
shall be presumed received when
14.1.1 The Contractor shall at all times and in deposited in the mail properly addressed
all respects observe and comply with all federal, state to the other party or Architect at the
and local laws, ordinances, and regulations applicable address set forth herein or set forth in a
to the Project and Work. The Contractor shall further written designation of change of address
insure that all Subcontractors observe and comply delivered to all parties and the
with said laws, ordinances and regulations. Architect.
14.2 GOVERNING LAW
14.2.1 The Contract shall be governed by the
laws of the State of Texas. Venue for any causes of
action arising under the terms or provisions of this
Contract or the Work to be performed hereunder shall
be in the courts of Dallas County, Texas.
14.3 SUCCESSORS AND ASSIGNS
14.3.1 The Owner and Contractor bind
themselves, their successors, assigns and legal
representatives to the other party hereto and to
successors, assigns and legal representatives of such
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EXECUTED in single or multiple originals, this 16th day of March, 2008.
APPROVED:
Dale A. Cheatham, City Manager - Q t
City of The Colony, Texas Ratliff Hardscape, Ltd.
6800 Main Street 605 Millican Drive
The Co ny, Texas 75056 Lewisville, Texas 75057
Cv
(V"A,f
Christie Wilson, City Secretary - Attest
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