HomeMy WebLinkAboutResolution No. 09-024
CITY OF THE COLONY, TE S
RESOLUTION NO. 09-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, AWARDING A BID AND APPROVING A
CONTRACT WITH NORTH AMERICAN INFORMATION SYSTEMS TO
INSTALL FIBER OPTIC CABLE BETWEEN 6800 MAIN STREET (CITY
HALL) AND 1 HARRIS PLAZA CAMPUS; PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City of The Colony has determined that it is in the best interest of the
City to contract North American Information Systems to lay fiber optic cable between 6800 Main
Street (City Hall) and 1 Harris Plaza Campus.
WHEREAS, the City of The Colony is agreeing to pay the sum not to exceed One
Hundred One Thousand, Six Hundred Sixty Eight Dollars and Fifty Six Cents ($101,668.56) for
such contract.
THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS THAT:
Section 1. That this proposal, 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 $91,668.56 as the base amount,
plus a $10,000.00 contingency amount for a total not to exceed $101,668.56, and the City
Manager is hereby authorized to issue the purchase order and execute the contract with North
American Information Systems to lay fiber optic cable on behalf of the city of The Colony, Texas.
Section 2. That this Resolution shall take effect immediately from and after its adoption
and it is so resolved.
PASED AND APPROVED, this the 16th day of March, 2009.
John 13i~1
ATTEST: T-) r yea , Chin Y~rv:
CL,
Christie Wilson, TRMC, City Secretary -
APPROVE S TO FORM:
•T
City Attorney
CITY OF THE COLONY, TEXAS
STANDARD FIXED PRICE AGREEMENT
FIBER OPTIC I HARRIS PLAZA PROJECT
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 North American Information Systems, (hereinafter referred to as the
"Contractor") for the installation of fiber optics between City Hall, 6800 Main St, and One Harris Plaza campus
located in The Colony, Texas 75056, (hereinafter referred to as the "Project"), the Owner and the Contractor hereby
agreeing as follows:
ARTICLE I 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 RFP #31-09-02-FIBER, all which are integral whole and shall be interpreted as internally
attached hereto and incorporated herein as Exhibits A consistent. What is required by any one Contract
through B, any other amendments hereto executed by Document shall be considered as required by the
the parties hereafter, together with the following (if Contract.
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 and payment bonds for the
Project, all General Conditions, Special Conditions, 1.5.4 The words "include", "includes", or
Plans and Specifications, and Addenda attached "including", as used in this Contract, shall be deemed
thereto, constitute the entire and exclusive agreement to be followed by the phrase, "without limitation".
between the Owner and the Contractor with reference
to the Project. Specifically, but without limitation, 1.5.5 The specification herein of any act,
this Contract supersedes any bid documents and all failure, refusal, omission, event, occurrence or
prior written or oral communications, representations condition as constituting a material breach of this
and negotiations, if any, between the Owner and Contract shall not imply that any other, non-specified
Contractor not expressly made a part hereof. act, failure, refusal, omission, event, occurrence or
condition shall be deemed not to constitute a material
breach of this Contract.
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1.5.6 Words or terms used as nouns in this 1.6 OWNERSHIP OF
Contract shall be inclusive of their singular and plural
forms, unless the context of their usage clearly CONTRACT DOCUMENTS
requires a contrary meaning.
1.6.1 The Contract Documents, and each of
1.5.7 The Contractor shall have a continuing them, shall remain the property of the Owner. The
duty to read, carefully study and compare each of the Contractor shall have the right to keep one record set
Contract Documents, the Shop Drawings, the Product of the Contract Documents upon completion of the
Data, and any Plans and Specifications, and shall Project; provided, however, that in no event shall
give written notice to the Owner of any Contractor use, or permit to be used, any or all of
inconsistency, ambiguity, error or omission which the such Contract Documents on other projects without
Contractor may discover with respect to these the Owner's prior written authorization.
documents before proceeding with the affected Work.
The issuance, or the express or implied approval by
the Owner or the Architect of the Contract
Documents, Shop Drawings or Product Data shall not ARTICLE II
relieve the Contractor of the continuing duties
imposed hereby, nor shall any such approval be THE WORK
evidence of the Contractor's compliance with this
Contract. The Owner has requested the Architect to 2,1 The Contractor shall perform all of the
only prepare documents for the Project, including the Work required, implied or reasonably inferable from,
Drawings and Specifications for the Project, which this Contract.
are accurate, adequate, consistent, coordinated and
sufficient for construction. HOWEVER, THE 2.2 WORK
OWNER MAKES NO REPRESENTATION OR
WARRANTY OF ANY NATURE WHATSOEVER 2 2 1 The term "Work" shall mean whatever
TO THE CONTRACTOR CONCERNING SUCH is done by or required of the Contractor to perform
DOCUMENTS. By the execution hereof, the and complete its duties under this Contract, including
Contractor acknowledges and represents that it has the following: construction of the whole or a
received, reviewed and carefully examined such designated part of the Project; furnishing of any
documents, has found them to be complete, accurate, required surety bonds and insurance, and the
adequate, consistent, coordinated and sufficient for provision or furnishing of labor, supervision,
construction, and that the Contractor has not, does services, materials, supplies, equipment, fixtures,
not, and will not rely upon any representation or appliances, facilities, tools, transportation, storage,
warranties by the Owner concerning such documents power, permits and licenses required of the
as no such representation or warranties have been or Contractor, fuel, heat, light, cooling and all other
are hereby made. Further, the Contractor represents utilities as required by this Contract. The Work to be
and warrants that it has had a sufficient opportunity performed by the Contractor is generally described as
to inspect the Project site and assumes any and all follows:
responsibility for inadequacies or ambiguities in the
plans, drawings or specifications as well as for latent Construction and installation of fiber optics between
conditions of the site where the work is to be City Hall (6800 Main) and One Harris Plaza
performed. including Animal Control and Waste Water. The
1.5.8 As between numbers and scaled fiber optic is to be 36 strand single mode cable
running in one (1) of six (6) 1.25" HDPE inner ducts.
measurements on the Drawings and in the Design, the Fire retardant inner-ducts will be installed inside
numbers shall govern, as between larger scale and building as required. Four (4) 24"06"x24" hand
smaller scale drawings, the larger scale shall govern. holes will be installed at designed points within the
fiber pull. Professional engineering drawings are
1.5.9 Neither the organization of any of the required for the project and will be provided by the
Contract Documents into divisions, sections, Contractor, these drawing are to be pre construction
paragraphs, articles, (or other categories), nor the and post construction. The drawings are to be signed
organization or arrangement of the Design, shall and stamped by a professional engineer. Upon the
control the Contractor in dividing the Work or in installation of the fiber all ends will be tipped and
establishing the extent or scope of the Work to be installed into the fiber mux panel once installed in the
performed by Subcontractors.
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mux the fiber is to be certified. Contractor will day of unexcused delay in achieving Substantial
provide the I.T. Department with eight (8) GLC-LH- Completion beyond the date set forth herein for
SM Cisco compatible GBIC modules. Contractor Substantial Completion of the Work. Any sums due
will provide a 5 year workmanship and material and payable hereunder by the Contractor shall be
warranty with a 4 hour response time for broken payable, not as a penalty, but as liquidated damages
fiber. Contractor will clean all work areas, this representing an estimate of delay damages likely to
includes, but not limited to, replacing any broken be sustained by the Owner, estimated at or before the
concrete, sod, and landscaping. time of executing this Contract. When the Owner
reasonably believes that Substantial Completion will
2.2.2 The Contractor shall be responsible for be inexcusably delayed, the Owner shall be entitled,
paying for and procuring all materials and labor and but not required, to withhold from any amounts
furnishing all services necessary or appropriate for otherwise due the Contractor an amount then
the full performance of the Work and the for the full believed by the Owner to be adequate to recover
completion of the Project. All materials shall be new liquidated damages applicable to such delays. if and
and materials and workmanship shall be of good when the Contractor overcomes the delay in
quality. Upon request, the Contractor shall furnish achieving Substantial Completion, or any part
satisfactory proof of the type, kind, and quality of thereof, for which the Owner has withheld payment,
materials. the Owner shall promptly release to the Contractor
those funds withheld, but no longer applicable, as
liquidated damages.
ARTICLE III 3.1.3 No claim shall be made by the
Contractor to the Owner, and no damages, costs or
CONTRACT TIME extra compensation shall be allowed or paid by the
Owner to the Contractor for any delay or hindrance
3.1 TIME AND LIQUIDATED DAMAGES from any cause in the progress or completion of the
Work or this Contract. The Contractor's sole remedy
3.1.1 The Contractor shall commence the in the event of any delay or hindrance shall be to
Work within 10 days of receipt of a written Notice to request time extensions by written change orders as
Proceed, and shall achieve Substantial Completion of provided for hereinafter. Should the Contractor be
the Work no later than one-hundred twenty (120) delayed by an act of the Owner, or should the Owner
calendar days from the date of notice to proceed and order a stoppage of the Work for sufficient cause, an
securing the required permits. The parties extension of time shall be granted by the Owner by
acknowledge that time is of the essence in the written authorization upon written application, which
performance of the terms of this Contract. The term extension shall not be unreasonably denied, to
"calendar days" shall mean any and all days of the compensate for the delay.
week or month, no days being excepted. It is
contemplated by the parties that the progress of the 3.1.4 The Owner shall have the authority to
Work may be delayed by certain conditions beyond suspend the Work wholly or in part for such period or
the control of the parties; these delays have been periods of time as it may deem appropriate due to
contemplated by the parties and considered in the unsuitable conditions considered unfavorable for the
time allotted for performance specified herein and proper prosecution of the Work or for the failure of
includes, but is not limited to delays occasioned on the Contractor to carry out instructions from the
account of adverse weather, temporary unavailability Owner or Owner's representative. During any period
of materials, shipment delays, and the presence and in which the Work is stopped or during which any of
potential interference of other contractors who may the Work is not actively in progress for any reason,
be performing work at the Project site unrelated to Contractor shall properly protect the site and the
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 Contractor shall pay the Owner the Contract that the Owner can enjoy beneficial use or
sum of $240.00 per day for each and every calendar occupancy of the Work and can utilize the Work for
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its intended purpose, even though minor 5.2 PAYMENT PROCEDURE
miscellaneous work and/or adjustment may be
required. 5.2.1 The Owner shall pay the Contract Price
to the Contractor as provided in Exhibit "C," which is
3.3 TIME IS OF THE ESSENCE attached hereto and made a part hereof.
3.3.1 All limitations of time set forth in the 5.2.2 PROGRESS PAYMENTS - Based upon the
Contract Documents are of the essence of this Contractor's Applications for Payment submitted to
Contract. the Owner and upon Certificates for Payment issued,
the Owner shall make progress payments to the
ARTICLE IV Contractor on account of the Contract Price.
CONTRACT PRICE 5.2.3 On or before the 25th day of each
month after commencement of the Work, the
4.1 THE CONTRACT PRICE Contractor shall submit an Application for Payment
for the period ending the 15th day of the month to the
4.1.1 The Owner shall pay, and the Owner in such form and manner, and with such
Contractor shall accept, as full and complete payment supporting data and content, as the Owner may
for all of the Work required herein, the fixed sum of require. Therein, the Contractor may request
One Hundred One Thousand Six Hundred Sixty payment for ninety percent (90%) of that portion of
Eight dollars and Fifty Six cents ($101,668.56). the Contract Price properly allocable to Contract
requirements properly provided, labor, materials and
The sum set forth in this Paragraph 4.1 shall equipment properly incorporated in the Work, less
constitute the Contract Price which shall not be the total amount of previous payments received from
modified except by written Change Order as provided the Owner. Such Application for Payment shall be
in this Contract. signed by the Contractor and shall constitute the
Contractor's representation that the Work has
progressed to the level for which payment is
requested in accordance with the Schedule of Values,
ARTICLE V that the Work has been properly installed or
performed in full compliance with this Contract, and
PAYMENT OF THE CONTRACT PRICE that the Contractor knows of no reason why payment
should not be made as requested. Thereafter, the
5.1 SCHEDULE OF VALUES Owner will review the Application for Payment and
may also review the Work at the Project site or
5.1.1 Within ten (10) calendar days of the elsewhere to determine whether the quantity and
effective date hereof, the Contractor shall submit to quality of the Work is as represented in the
the Owner a Schedule of Values allocating the Application for Payment and is as required by this
Contract Price to the various portions of the Work. Contract. The Owner shall determine and certify the
The Contractor's Schedule of Values shall be amount properly owing to the Contractor. The
prepared in such form, with such detail, and Owner shall make partial payments on account of the
supported by such data the Owner may require to Contract Price to the Contractor within thirty (30)
substantiate its accuracy. The Contractor shall not days following receipt and approval of each
imbalance its Schedule of Values nor artificially Application for Payment. The amount of each partial
inflate any element thereof. The violation of this payment shall be the amount certified for payment by
provision by the Contractor shall constitute a material the Owner less such amounts, if any, otherwise
breach of this Contract. The Schedule of Values owing by the Contractor to the Owner or which the
shall be used only as a basis for the Contractor's Owner shall have the right to withhold as authorized
Applications for Payment and shall only constitute by this Contract. The Owner's certification of the
such basis after it has been acknowledged and Contractor's Application for Payment shall not
accepted in writing by the Architect and the Owner. preclude the Owner from the exercise of any of its
rights as set forth in Paragraph 5.3 herein below.
5.2.4 The Contractor warrants that title to all
Work covered by an Application for Payment will
pass to the Owner no later than the time of payment.
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The Contractor further warrants that upon submittal (e) evidence that the Work will not be
of an Application for Payment, all Work for which completed in the time required for
payments have been received from the Owner shall substantial or final completion;
be free and clear of liens, claims, security interest or
other encumbrances in favor of the Contractor or any (f) persistent failure to carry out the Work
other person or entity whatsoever. in accordance with the Contract;
5.2.5 The Contractor shall promptly pay each (g) damage to the Owner or a third party to
Subcontractor out of the amount paid to the whom the Owner is, or may be, liable.
Contractor on account of such Subcontractor's Work,
the amount to which such Subcontractor is entitled. In the event that the Owner makes
In the event the Owner becomes informed that the written demand upon the Contractor for amounts
Contractor has not paid a Subcontractor as herein previously paid by the Owner as contemplated in this
provided, the Owner shall have the right, but not the Subparagraph 5.3.1, the Contractor shall promptly
duty, to issue future checks in payment to the comply with such demand. The Owner shall have no
Contractor of amounts otherwise due hereunder duty to third parties to withhold payment to the
naming the Contractor and such Subcontractor as Contractor and shall incur no liability for a failure to
joint payees. Such joint check procedure, if withhold funds.
employed by the Owner, shall create no rights in
favor of any person or entity beyond the right of the Owner shall required Contractor to sign
named payees to payment of the check and shall not a bills paid affidavit for each and every pay request
be deemed to commit the Owner to repeat the and application for payment as provided in Section
procedure in the future. 5.2.2 of this Agreement. Contractor shall also
provide upon receiving the notice to proceed a list of
5.2.6 No progress payment, nor any use or all materialmen and subcontractors with contact
occupancy of the Project by the owner, shall be information.
interpreted to constitute an acceptance of any Work
not in strict accordance with this Contract. 5.4 UNEXCUSED FAILURE TO PAY
5.3 WITHHELD PAYMENT 5.4.1 If within fifteen (15) days after the date
established herein for payment to the Contractor by
5.3.1 The Owner may decline to make the Owner, the Owner, without cause or basis
payment, may withhold funds, and, if necessary, may hereunder, fails to pay the Contractor any amount
demand the return of some or all of the amounts then due and payable to the Contractor, then the
previously paid to the Contractor, to protect the Contractor may after ten (10) additional days' written
Owner from loss because of notice to the Owner, and without prejudice to any
other available rights or remedies it may have, stop
(a) defective Work not remedied by the the Work until payment of those amounts due from
Contractor nor, in the opinion of the the Owner have been received. Late payments shall
Owner, likely to be remedied by the not accrue interest or other late charges.
Contractor;
5.5 SUBSTANTIAL COMPLETION
(b) claims of third parties against the
Owner or the Owner's property; 5.5.1 When the Contractor believes that the
Work is substantially complete, the Contractor shall
(c) failure by the Contractor to pay submit to the Owner a list of items to be completed or
Subcontractors or others in a prompt corrected. When the Owner on the basis of an
and proper fashion; inspection determines that the Work is in fact
substantially complete, it will prepare a Certificate of
(d) evidence that the balance of the Work Substantial Completion which shall establish the date
cannot be completed in accordance with of Substantial Completion, shall state the
the Contract for the unpaid balance of responsibilities of the Owner and the Contractor for
the Contract Price, Project security, maintenance, heat, utilities, damage
to the Work, and insurance, and shall fix the time
within which the Contractor shall complete the items
listed therein. Guarantees required by the Contract
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shall commence on the date of Substantial believed by the Owner to be adequate to recover
Completion of the Work. The Certificate of liquidated damages applicable to such delays. If and
Substantial Completion shall be submitted to the when the Contractor overcomes the delay in
Owner and the Contractor for their written achieving final completion, or any part thereof, for
acceptance of the responsibilities assigned to them in which the Owner has withheld payment, the Owner
such certificate. shall promptly release to the Contractor those funds
withheld, but no longer applicable, as liquidated
Upon Substantial Completion of the Work, and damages.
execution by both the Owner and the Contractor of
the Certificate of Substantial Completion, the Owner 5.6.2 The Contractor shall not be entitled to
shall pay the Contractor an amount sufficient to final payment unless and until it submits to the
increase total payments to the Contractor to one Owner its affidavit that all payrolls, invoices for
hundred percent (100%) of the Contract Price less materials and equipment, and other liabilities
three hundred percent (300%) of the reasonable cost connected with the Work for which the Owner, or the
as determined by the Owner for completing all Owner's property might be responsible, have been
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 COMPLETION 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
due and payable hereunder by the Contractor shall be
payable, not as a penalty, but as liquidated damages
representing an estimate of delay damages likely to
be sustained by the Owner, estimated at or before the
time of executing this Contract. When the Owner
reasonably believes that final completion will be
inexcusably delayed, the Owner shall be entitled, but
not required, to withhold from any amounts
otherwise due the Contractor an amount then
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ARTICLE VI cause of such stoppage will be eliminated or
corrected, then the Owner may, without prejudice to
THE OWNER any other rights or remedies the Owner may have
against the Contractor, proceed to carry out the
6.1 INFORMATION, SERVICES AND THINGS subject Work. In such a situation, an appropriate
Change Order shall be issued deducting from the
REQUIRED FROM OWNER Contract Price the cost of correcting the subject
deficiencies, plus compensation for additional
6.1.1 The Owner shall furnish to the services and expenses necessitated thereby, if any. If
Contractor, at the time of executing this Contract, any the unpaid portion of the Contract Price is
and all written and tangible material in its possession insufficient to cover the amount due the Owner, the
concerning conditions below ground at the site of the Contractor shall pay the difference to the Owner.
Project.
Such written and tangible material is furnished to the
Contractor only in order to make complete disclosure ARTICLE VII
of such material and for no other purpose. By
furnishing such material, the Owner does not THE CONTRACTOR
represent, warrant, or guarantee its accuracy either in
whole, in part, implicitly or explicitly, or at all, and 7.1 The Contractor is again reminded of its
shall have no liability therefore. The Owner shall continuing duty set forth in Subparagraph 1.5.7. The
also furnish surveys, legal limitations and utility Contractor shall perform no part of the Work at any
locations (if known), and a legal description of the time without adequate Contract Documents or, as
Project site. appropriate, approved Shop Drawings, Product Data
or Samples for such portion of the Work. If the
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
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7.4 WARRANTY its information, the Contractor's schedule for
completing the Work. The Contractor's schedule
7.4.1 The Contractor warrants to the Owner shall be revised no less frequently than monthly
that all labor furnished to progress the Work under (unless the parties otherwise agree in writing) and
this Contract will be competent to perform the tasks shall be revised to reflect conditions encountered
undertaken, that the product of such labor will yield from time to time and shall be related to the entire
only first-class results, that materials and equipment Project. Each such revision shall be furnished to the
furnished will be of good quality and new unless Owner. Failure by the Contractor to strictly comply
otherwise permitted by this Contract, and that the with the provisions of this Paragraph 7.7 shall
Work will be of good quality, free from faults and constitute a material breach of this Contract.
defects and in strict conformance with this Contract.
All Work not conforming to these requirements may 7.8 The Contractor shall continuously
be considered defective. maintain at the site, for the benefit of the owner, one
record copy of this Contract marked to record on a
7.5 The Contractor shall obtain and pay for current basis changes, selections and modifications
all permits, fees and licenses necessary and ordinary made during construction. Additionally, the
for the Work. The Contractor shall comply with all Contractor shall maintain at the site for the Owner the
lawful requirements applicable to the Work and shall approved Shop Drawings, Product Data, Samples and
give and maintain any and all notices required by other similar required submittals. Upon final
applicable law pertaining to the Work. completion of the Work, all of these record
documents shall be delivered to the Owner.
7.6 SUPERVISION
7.9 SHOP DRAWINGS, PRODUCT
7.6.1 The Contractor shall employ and
maintain at the Project site only competent DATA AND SAMPLES
supervisory personnel. Absent written instruction
from the Contractor to the contrary, the 7.9.1 Shop Drawings, Product Data, Samples
superintendent shall be deemed the Contractor's and other submittals from the Contractor do not
authorized representative at the site and shall be constitute Contract Documents. Their purpose is
authorized to receive and accept any and all merely to demonstrate the manner in which the
communications from the Owner. Contractor intends to implement the Work in
conformance with information received from the
7.6.2 Key supervisory personnel assigned by the Contract Documents.
Contractor to this Project are as follows:
7.9.2 The Contractor shall not perform any
NAME FUNCTION portion of the Work requiring submittal and review
of Shop Drawings, Product Data or Samples unless
Supervisor and until such submittal shall have been approved by
the Owner. Approval by the Owner, however, shall
Inspector not be evidence that Work installed pursuant thereto
conforms with the requirements of this Contract.
Bruce Maker I.T. Manager
7.10 CLEANING THE SITE
So long as the individuals named above remain
actively employed or retained by the Contractor, they AND THE PROJECT
shall perform the functions indicated next to their
names unless the Owner agrees to the contrary in 7.10.1 The Contractor shall keep the site
writing. In the event one or more individuals not reasonably clean during performance of the Work.
listed above subsequently assume one or more of Upon final completion of the Work, the Contractor
those functions listed above, the Contractor shall be shall clean the site and the Project and remove all
bound by the provisions of this Subparagraph 7.6.2 as waste, rubbish, temporary structures, and other
though such individuals had been listed above. materials together with all of the Contractor's
property therefrom. Contractor shall dispose of all
7.7 The Contractor, within fifteen (15) days of refuse at a Texas Natural Resource Conservation
commencing the Work, shall submit to the Owner for Commission approved landfill. The Contractor shall
further restore all property damaged during the
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prosecution of the Work and shall leave the site in a UNDER TEXAS LAW. THE
clean and presentable condition. No additional PROVISIONS OF THIS INDEMNI-
payment shall be made by the Owner for this work, FICATION ARE SOLELY FOR THE
the compensation having been considered and BENEFIT OF THE PARTIES HERETO
included in the contract price.
AND NOT INTENDED TO CREATE OR
7.11 ACCESS TO WORK AND INSPECTIONS GRANT ANY RIGHTS, CONTRACTUAL
7.11.1 The Owner shall have access to the OR OTHERWISE, TO ANY OTHER
PERSON OR ENTITY. IT IS THE
Work at all times from commencement of the Work EXPRESSED INTENT OF THE PARTIES
through final completion. The Contractor shall take
whatever steps necessary to provide access when TO THIS AGREEMENT THAT THE
requested. When reasonably requested by the Owner, INDEMNITY PROVIDED FOR IN THIS
the Contractor shall perform or cause to be performed CONTRACT IS AN INDEMNITY
such testing as may be necessary or appropriate to EXTENDED BY CONTRACTOR TO
insure suitability of the jobsite or the Work's INDEMNIFY AND PROTECT OWNER
compliance with the Contract requirements.
FROM THE CONSEQUENCES OF THE
7.12 INDEMNITY AND DISCLAIMER CONTRACTOR'S AS WELL AS THE
OWNER'S NEGLIGENCE, WHETHER
7.12.1 OWNER SHALL NOT BE SUCH NEGLIGENCE IS THE SOLE OR
LIABLE OR RESPONSIBLE FOR, AND PARTIAL CAUSE OF ANY SUCH
SHALL BE INDEMNIFIED, DEFENDED, INJURY, DEATH, OR DAMAGE.
HELD HARMLESS AND RELEASED BY
CONTRACTOR FROM AND AGAINST 7.12.2 The Contractor will secure and maintain
ANY AND ALL SUITS, ACTIONS, Contractual Liability insurance to cover this
LOSSES, DAMAGES, CLAIMS, OR indemnification agreement that will be primary and
non-contributory as to any insurance maintained by
LIABILITY OF ANY CHARACTER, the Owner for its own benefit, including self-
TYPE, OR DESCRIPTION, INCLUDING insurance. In addition, Contractor shall obtain and
ALL EXPENSES OF LITIGATION, file with Owner a Certificate of Insurance evidencing
COURT COSTS, AND ATTORNEY'S the required coverage.
FEES FOR INJURY OR DEATH TO ANY 7.12.3 In claims against any person or entity
PERSON, OR INJURY OR LOSS TO ANY indemnified under this Paragraph 7.12 by an
PROPERTY, RECEIVED OR employee of the Contractor, a Subcontractor, anyone
SUSTAINED BY ANY PERSON OR directly or indirectly employed by them or anyone for
PERSONS, INCLUDING THE Whose acts they may be liable, the indemnification
CONTRACTOR, OR PROPERTY, obligation under this Paragraph 7.12 shall not be
limited by a limitation on amount or type of damages,
ARISING OUT OF, OR OCCASIONED compensation or benefits payable by or for the
BY, DIRECTLY OR INDIRECTLY, THE Contractor or a Subcontractor under workers'
PERFORMANCE OF CONTRACTOR compensation acts, disability benefit acts or other
UNDER THIS AGREEMENT, employee benefit acts.
INCLUDING CLAIMS AND DAMAGES 7.13 NONDISCRIMINATION
ARISING IN WHOLE OR IN PART
FROM THE NEGLIGENCE OF OWNER, 7.13.1 The Contractor shall not discriminate in
WITHOUT, HOWEVER, WAIVING ANY any way against any person, employee or job
GOVERN-MENTAL IMMUNITY applicant on the basis of race, color, creed, national
AVAILABLE TO THE OWNER UNDER original, religion, age, sex, or disability where
reasonable accommodations can be effected to enable
TEXAS LAW AND WITHOUT WAIVING the person to perform the essential functions of the
ANY DEFENSES OF THE PARTIES job. The Contractor shall further insure that the
foregoing nondiscrimination requirement shall be
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made a part and requirement of each subcontract on jobsite, including . No separate compensation shall
this Project. be paid to the Contractor for such measures. Where
the Work is being conducted in, upon or near streets,
7.14 PREVAILING WAGE RATES alleys, sidewalks, or other rights-of-way, the
Contractor shall insure the placement, maintenance
7.14.1 The Contractor shall comply in all and operation of any and all such warning devices as
respects with all requirements imposed by any laws, may be required by the City of The Colony and shall
ordinances or resolutions applicable to the Project do so until no longer required by the City. Such
with regard to the minimum prevailing wage rates for devices shall be in compliance with and conform to
all classes of employees, laborers, subcontractors, the manual and specifications for the uniform system
mechanics, workmen and persons furnishing labor of traffic control devices adopted by the Texas
and services to the Project. The City of The Colony Department of Transportation.
has adopted a Prevailing Wage Rate Schedule,
available to the Contractor by request, which 7.17 PROTECTION OF UTILITIES
specifies the classes and wage rates to be paid to all
persons. The Contractor shall pay not less than the AND OTHER CONTRACTORS
minimum wage rates established thereby for each
class, craft or type of labor, workman, or mechanic 7.17.1 The Contractor shall use best efforts to
employed in the execution of this Contract. The leave undisturbed and uninterrupted all utilities and
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 THE 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,
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the term shall be used interchangeably and shall testing of the Work for compliance with Contract
mean a designated Architect, Engineer, or Contract requirements.
Administrator (who may not be an architect or
engineer) for the Owner, said person to be designated 8.2.6 The Architect will review and approve,
or redesignated by the Owner prior to or at any time or take other appropriate action as necessary,
during the Work hereunder. The Architect may be an concerning the Contractor's submittals including
employee of the Owner or may be retained by the Shop Drawings, Product Data and Samples. Such
Owner as an independent contractor but, in either review, approval or other action shall be for the sole
event, the Architect's duties and authority shall be as purpose of determining conformance with the design
set forth hereinafter. The Contractor understands and concept and information given through the Contract
agrees that it shall abide by the decisions and Documents.
instructions of the Architect notwithstanding the
contractual relationship between the Owner and 8.2.7 The Architect will prepare Change
Architect. All of the Owner's instructions to the Orders and may authorize minor changes in the Work
Contractor shall be through the Architect. by Field Order as provided elsewhere herein.
In the event the Owner should find it necessary or 8.2.8 The Architect shall, upon written
convenient to replace the Architect, the Owner shall request from the Contractor, conduct inspections to
retain a replacement Architect and the status of the determine the date of Substantial Completion and the
replacement Architect shall be that of the former date of final completion, will receive and forward to
Architect. the Owner for the Owner's review and records,
written warranties and related documents required by
8.2 ARCHITECT'S ADMINISTRATION this Contract and will issue a final Certificate for
Payment upon compliance with the requirements of
8.2.1 The Architect, unless otherwise directed this Contract.
by the Owner in writing, will perform those duties
and discharge those responsibilities allocated to the 8.2.9 The Architect's decisions in matters
Architect as set forth in this Contract. The Architect relating to aesthetic effect shall be final if consistent
shall be the Owner's representative from the effective with the intent of this Contract.
date of this Contract until final payment has been
made. 8.3 CLAIMS BY THE CONTRACTOR
8.2.2 The Owner and the Contractor shall 8.3.1 The Owner shall determine all claims
communicate with each other in the first instance and matters in dispute between the Contractor and
through the Architect. Owner with regard to the execution, progress, or
sufficiency of the Work or the interpretation of the
8.2.3 The Architect shall be the initial Contract Documents, including but not limited to the
interpreter of the requirements of the drawings and plans and specifications. Any dispute shall be
specifications and the judge of the performance submitted in writing to the Owner within seven (7)
thereunder by the Contractor. The Architect shall days of the event or occurrence or the first
render written or graphic interpretations necessary for appearance of the condition giving rise to the claim
the proper execution or progress of the Work with or dispute who shall render a written decision within
reasonable promptness on request of the Contractor. a reasonable time thereafter. The Owner's decisions
shall be final and binding on the parties. In the event
8.2.4 The Architect will review the that either party objects to the Owner's determination
Contractor's Applications for Payment and will as to any submitted dispute, that party shall submit a
certify to the Owner for payment to the Contractor, written objection to the Owner and the opposing
those amounts then due the Contractor as provided in party within ten (10) days of receipt of the Owner's
this Contract. written determination in order to preserve the
objection. Failure to so object shall constitute a
8.2.5 The Architect shall have authority to waiver of the objection for all purposes.
reject Work which is defective or does not conform
to the requirements of this Contract. If the Architect 8.3.2 Pending final resolution of any claim of
deems it necessary or advisable, the Architect shall the Contractor, the Contractor shall diligently
have authority to require additional inspection or proceed with performance of this Contract and the
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Owner shall continue to make payments to the 8.3.4.1 In connection with any claim by the
Contractor in accordance with this Contract. Contractor against the Owner for compensation in
excess of the Contract Price, any liability of the
8.3.3 CLAIMS FOR CONCEALED, LATENT OR Owner for the Contractor's costs shall be strictly
UNKNOWN CONDITIONS - The Contractor expressly limited to direct costs incurred by the Contractor and
represents that it has been provided with an adequate shall in no event include indirect costs or
opportunity to inspect the Project site and thoroughly consequential damages of the Contractor. The
review the Contract Documents and plans and Owner shall not be liable to the Contractor for claims
specifications prior to submission of its bid and the of third parties, including Subcontractors. The Owner
Owner's acceptance of the bid. Subject to the shall not be liable to the Contractor for any claims
conditions hereof, Contractor assumes full based upon delay to the Contractor for any reason
responsibility and risk for any concealed, latent or whatsoever including any act or neglect on the part of
unknown condition which may affect the Work. No the Owner.
claims for extra work or additional compensation
shall be made by Contractor in connection with 8.3.5 CLAIMS FOR ADDITIONAL TIME - If the
concealed, latent or unknown conditions except as Contractor is delayed in progressing any task which
expressly provided herein. Should concealed, latent at the time of the delay is then critical or which
or unknown conditions encountered in the during the delay becomes critical, as the sole result of
performance of the Work (a) below the surface of the any act or neglect to act by the Owner or someone
ground or (b) in an existing structure be at variance acting in the Owner's behalf, or by changes ordered
with the conditions indicated by this Contract, or in the Work, unusual delay in transportation,
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.
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8.5 MEDIATION reference the provisions hereof and shall provide that
no claims, causes or demands shall be made by any
8.5.1 In the event that a dispute arises under Subcontractor against the Owner.
the terms of this Contract, following an adverse
determination by the Owner and proper preservation 9.2.3 The Contractor shall indemnify, defend
of the issue as required herein, the parties agree to and hold harmless the Owner from and against any
submit to mediation. In such event, the parties shall and all claims, demands, causes of action, damage,
agree to a designated person to serve as mediator and and liability asserted or made against the Owner by
each party shall be responsible for payment of one- or on behalf of any Subcontractor.
half of the total mediation fees. The parties shall
submit the dispute to mediation as soon as practical
and in no event later than one (1) year after the
Owner's written decision on the matter. At least one ARTICLE X
designated representative of each party must attend
and participate in good faith in an effort to resolve CHANGES IN THE WORK
the matters in dispute.
10.1 CHANGES PERMITTED
8.5.2 In no event shall the foregoing
provision justify or authorize any delay in the 10.1.1 Changes in the Work within the general
progress of the Work; the parties shall abide by the scope of this Contract, consisting of additions,
decision of the Owner in accomplishing the timely deletions, revisions, or any combination thereof, may
completion of the Project. be ordered without invalidating this Contract, by
Change Order or by Field Order.
ARTICLE IX
10.1.2 Changes in the Work shall be
SUBCONTRACTORS performed under applicable provisions of this
Contract and the Contractor shall proceed promptly
9.1 DEFINITION with such changes.
9.1.1 A Subcontractor is an entity which has a 10.2 CHANGE ORDER DEFINED
direct contract with the Contractor to perform a
portion of the Work. No Subcontractor shall be in 10.2.1 Change Order shall mean a written
privity with the Owner. order to the Contractor executed by the Owner,
issued after execution of this Contract, authorizing
9.2 AWARD OF SUBCONTRACTS and directing a change in the Work or an adjustment
in the Contract Price or the Contract Time, or any
9.2.1 Upon execution of the Contract, the combination thereof. The Contract Price and the
Contractor shall furnish the Owner, in writing, the Contract Time may be changed only by written
names of persons or entities proposed by the Change Order.
Contractor to act as a Subcontractor on the Project.
The Owner shall promptly reply to the Contractor, in 10.3 CHANGES IN THE CONTRACT PRICE
writing, stating any objections the Owner may have
to such proposed Subcontractor. The Contractor 10.3.1 Any change in the Contract Price
shall not enter into a subcontract with a proposed resulting from a Change Order shall be determined as
Subcontractor with reference to whom the Owner has follows: (a) by mutual agreement between the Owner
made timely objection. The Contractor shall not be and the Contractor as evidenced by (1) the change in
required to subcontract with any party to whom the the Contract Price being set forth in the Change
Contractor has objection. Order, (2) such change in the Contract Price, together
with any conditions or requirements related thereto,
9.2.2 All subcontracts shall afford the being initialed by both parties and (3) the
Contractor rights against the Subcontractor which Contractor's execution of the Change Order, or (b) if
correspond to those rights afforded to the Owner no mutual agreement occurs between the Owner and
against the Contractor herein, including those rights the Contractor, then, as provided in Subparagraph
afforded to the Owner by Subparagraph 12.2.1 10.3.2 below.
below. All subcontracts shall incorporate by
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10.3.2 If no mutual agreement occurs between 10.5 EFFECT OF EXECUTED
the Owner and the Contractor as contemplated in
Subparagraph 10.3.1 above, the change in the CHANGE ORDER
Contract Price, if any, shall then be determined by the
Owner on the basis of the reasonable expenditures or 10.5.1 The execution of a Change Order by the
savings of those performing, deleting or revising the Contractor shall constitute conclusive evidence of the
Work attributable to the change, including, in the Contractor's agreement to the ordered changes in the
case of an increase or decrease in the Contract Price, Work, this Contract as thus amended, the Contract
a reasonable allowance for direct job site overhead Price and the Contract Time. The Contractor, by
and profit. In such case, the Contractor shall present, executing the Change Order, waives and forever
in such form and with such content as the Owner releases any claim against the Owner for additional
requires, an itemized accounting of such expenditures time or compensation for matters relating to or
or savings, plus appropriate supporting data for arising out of or resulting from the Work included
inclusion in a Change Order. Reasonable within or affected by the executed Change Order.
expenditures or savings shall be limited to the
following: reasonable costs of materials, supplies, or 10.6 NOTICE TO SURETY; CONSENT
equipment including delivery costs, reasonable costs
of labor, including social security, old age and 10.6.1 The Contractor shall notify and obtain
unemployment insurance, fringe benefits required by the consent and approval of the Contractor's surety
agreement or custom, and workers' compensation with reference to all Change Orders if such notice,
insurance, reasonable rental costs of machinery and consent or approval are required by the Contractor's
equipment exclusive of hand tools whether rented surety or by law. The Contractor's execution of the
from the Contractor or others, reasonable costs of Change Order shall constitute the Contractor's
premiums for all bonds and insurance, permit fees, warranty to the Owner that the surety has been
and sales, use or other taxes related to the Work, and notified of and consents to, such Change Order and
reasonable cost of direct supervision and jobsite field the surety shall be conclusively deemed to have been
office overhead directly attributable to the change. In notified of such Change Order and to have expressly
no event shall any expenditure or savings associated consented thereto.
with the Contractor's home office or other non jobsite
overhead expense be included in any change in the ARTICLE XI
Contract Price. Pending final determination of
reasonable expenditures or savings to the Owner, UNCOVERING AND CORRECTING WORK
payments on account shall be made to the Contractor
on the Owner's Certificate for Payment. 11.1 UNCOVERING WORK
10.3.3 If unit prices are provided in the 11.1.1 If any of the Work is covered contrary
Contract, and if the quantities contemplated are so to the Owner's request or to any provisions of this
changed in a proposed Change Order that application Contract, it shall, if required by the Architect or the
of such unit prices to the quantities of Work proposed Owner, be uncovered for the Architect's inspection
will cause substantial inequity to the Owner or to the and shall be properly replaced at the Contractor's
Contractor, the applicable unit prices shall be expense without change in the Contract Time.
equitably adjusted.
11.1.2 If any of the Work is covered in a
10.4 MINOR CHANGES manner not inconsistent with Subparagraph 11.1.1
above, it shall, if required by the Architect or Owner,
10.4.1 The Architect shall have authority to be uncovered for the Architect's inspection. If such
order minor changes in the Work not involving a Work conforms strictly with this Contract, costs of
change in the Contract Price or an extension of the uncovering and proper replacement shall by Change
Contract Time and not inconsistent with the intent of Order be charged to the Owner. If such Work does
this Contract. Such minor changes shall be made by not strictly conform with this Contract, the
written Field Order, and shall be binding upon the Contractor shall pay the costs of uncovering and
owner and the Contractor. The Contractor shall proper replacement.
promptly carry out such written Field Orders.
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11.2 CORRECTING WORK ARTICLE XII
11.2.1 The Contractor shall immediately CONTRACT TERMINATION
proceed to correct Work rejected by the Architect as
defective or failing to conform to this Contract. The 12.1 TERMINATION BY THE CONTRACTOR
Contractor shall pay all costs and expenses associated
with correcting such rejected Work, including any 12.1.1 If the Work is stopped for a period of
additional testing and inspections, and reimbursement ninety (90) days by an order of any court or other
to the Owner for the Architect's services and public authority, or as a result of an act of the
expenses made necessary thereby. Government, through no fault of the Contractor or
any person or entity working directly or indirectly for
11.2.2 If within one (1) year after Substantial the Contractor, the Contractor may, upon ten (10)
Completion of the Work any of the Work is found to days' written notice to the Owner and the Architect,
be defective or not in accordance with this Contract, terminate performance under this Contract and
the Contractor shall correct it promptly upon receipt recover from the Owner payment for the actual
of written notice from the Owner. This obligation reasonable expenditures of the Contractor (as limited
shall survive final payment by the Owner and in Subparagraph 10.3.2 above) for all Work executed
termination of this Contract. With respect to Work and for materials, equipment, tools, construction
first performed and completed after Substantial equipment and machinery actually purchased or
Completion, this one year obligation to specifically rented solely for the Work, less any salvage value of
correct defective and nonconforming Work shall be any such items.
extended by the period of time which elapses
between Substantial Completion and completion of 12.1.2 If the Owner shall persistently or
the subject Work. repeatedly fail to perform any material obligation to
the Contractor for a period of fifteen (15) days after
11.2.3 Nothing contained in this Paragraph receiving written notice from the Contractor of its
11.2 shall establish any period of limitation with intent to terminate hereunder, the Contractor may
respect to other obligations which the Contractor has terminate performance under this Contract by written
under this Contract. Establishment of the one year notice to the Architect and the Owner. In such event,
time period in Subparagraph 11.2.2 relates only to the the Contractor shall be entitled to recover from the
duty of the Contractor to specifically correct the Owner as though the Owner had terminated the
Work. Contractor's performance under this Contract for
convenience pursuant to Subparagraph 12.2.1
11.3 OWNER MAY ACCEPT DEFECTIVE hereunder.
OR NONCONFORMING WORK 12.2 TERMINATION BV THE OWNER
11.3.1 If the Owner chooses to accept 12.2.1 FOR CONvEN/ENCE
defective or nonconforming Work, the Owner may
do so. In such event, the Contract Price shall be 12.2.1.1 The Owner may for any reason
reduced by the greater of (a) the reasonable cost of whatsoever terminate performance under this
removing and correcting the defective or Contract by the Contractor for convenience. The
nonconforming Work, and (b) the difference between Owner shall give written notice of such termination
the fair market value of the Project as constructed and to the Contractor specifying when termination
the fair market value of the Project had it not been becomes effective.
constructed in such a manner as to include defective
or nonconforming Work. If the remaining portion of 12.2.1.2 The Contractor shall incur no further
the unpaid Contract Price, if any, is insufficient to obligations in connection with the Work and the
compensate the Owner for its acceptance of defective Contractor shall stop Work when such termination
or nonconforming Work, the Contractor shall, upon becomes effective. The Contractor shall also
written demand from the Owner, pay the Owner such terminate outstanding orders and subcontracts. The
remaining compensation for accepting defective or Contractor shall settle the liabilities and claims
nonconforming Work. arising out of the termination of subcontracts and
orders. The Owner may direct the Contractor to
assign the Contractor's right, title and interest under
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terminated orders or subcontracts to the Owner or its (iii) Reasonable costs of settling and
designee. paying claims arising out of the
termination of subcontracts or orders
12.2.1.3 The Contractor shall transfer title and pursuant to Subparagraph 12.2.1.2 of
deliver to the Owner such completed or partially this Paragraph. These costs shall not
completed Work and materials, equipment, parts, include amounts paid in accordance
fixtures, information and Contract rights as the with other provisions hereof.
Contractor has.
The total sum to be paid the Contractor under this
12.2.1.4 (a) The Contractor shall submit a Subparagraph 12.2.1 shall not exceed the total
termination claim to the Owner and Contract Price, as properly adjusted, reduced by the
the Architect specifying the amounts amount of payments otherwise made, and shall in no
due because of the termination for event include duplication of payment.
convenience together with costs,
pricing or other data required by the 12.2.2 FOR CAUSE
Architect. If the Contractor fails to
file a termination claim within one (1) 12.2.2.1 If the Contractor persistently or
year from the effective date of repeatedly refuses or fails to prosecute the Work in a
termination, the Owner shall pay the timely manner, abandons the jobsite and fails to
Contractor, an amount derived in resume work within five (5) days of written notice
accordance with subparagraph (c) thereof by the Owner, fails to grant or allow access to
below. the jobsite by the Owner or Architect, fails to supply
enough properly skilled workers, supervisory
(b) The Owner and the Contractor may personnel or proper equipment or materials, fails to
agree to the compensation, if any, due make prompt payment to Subcontractors or for
to the Contractor hereunder. materials or labor, persistently disregards laws,
ordinances, rules, regulations or orders of any public
(c) Absent agreement to the amount due authority having jurisdiction, or otherwise is guilty of
to the Contractor, the Owner shall a violation of a material provision of this Contract,
pay the Contractor the following then the Owner may by written notice to the
amounts: Contractor, without prejudice to any other right or
remedy, terminate the employment of the Contractor
(i) Contract prices for labor, materials, and take possession of the site and of all materials,
equipment and other services equipment, tools, construction equipment and
accepted under this Contract; machinery thereon owned by the Contractor and may
finish the Work by whatever methods it may deem
(ii) Reasonable costs incurred in expedient. In such case, the Contractor shall not be
preparing to perform and in entitled to receive any further payment until the
performing the terminated portion of Work is finished.
the Work, and in terminating the
Contractor's performance, plus a fair 12.2.2.2 If the unpaid balance of the Contract
and reasonable allowance for Price does not exceed the cost of finishing the work,
overhead and profit thereon (such including compensation for the Architect's additional
profit shall not include anticipated services and expenses made necessary thereby, such
profit or consequential damages), difference shall be paid by the Contractor to the
provided however, that if it appears Owner. This obligation for payment shall survive the
that the Contractor would have not termination of the Contract.
profited or would have sustained a
loss if the entire Contract would have 12.2.2.3 In the event the employment of the
been completed, no profit shall be Contractor is terminated by the Owner for cause
allowed or included and the amount pursuant to Subparagraph 12.2.2 and it is
of compensation shall be reduced to subsequently determined by a Court of competent
reflect the anticipated rate of loss, if jurisdiction that such termination was without cause,
any; such termination shall thereupon be deemed a
Termination for Convenience under Subparagraph
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12.2.1 and the provisions of Subparagraph 12.2.1
shall apply. Owner's Protective $600,000 per occurrence
Liability Insurance $1,000,000 aggregate
ARTICLE XIII Excess/Umbrella Liability $1,000,000 per occurrence
w/drop down coverage
INSURANCE
13.1 CONTRACTOR SHALL Endorsement CG 2503 Amendment Aggregate
MAINTAIN INSURANCE Limit of Insurance per
Project or Owner's and
13.1.1 The Contractor at his own expense shall Contractor's Protective
purchase, maintain and keep in force during the life Liability Insurance for the
of this contract, adequate insurance that will protect Project.
the Contractor and/or any Additional Insured from
claims which may arise out of or result from Automobile Liability $500,000 Combined
operations under this contract. The insurance required single limit per
shall provide adequate protections from all claims, occurrence.
whether such operations be by the Contractor or by
any Additional Insured or by any Subcontractor or by 13.3 ADDITIONAL INSURED
anyone directly or indirectly employed by any of
them, or by anyone whose acts of any of them may The Owner shall be named as an additional insured
be liable and from any special hazards, such as on the Commercial General Liability (Public),
blasting, which may be encountered in the Owner's Protective Liability, and Excess/Umbrella
performance of this contract in the amounts as shown Liability Insurance Policies furnished by the
below in Paragraph 13.2.1. Contractor.
13.1.2 The Contractor shall not commence 13.4 WRITTEN NOTIFICATION
work on any Contract in the City of The Colony until
the Contractor has obtained all the insurance required Each insurance policy shall contain a provision
under this paragraph and such insurance has been requiring that thirty (30) days prior to expiration,
approved by the City. cancellation, non-renewal or any material change in
coverage, a notice there of shall be given by certified
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.
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13.7 PRIMARY COVERAGE within 10 days after the contractor knew
The coverages provided herein shall be primary and or should have known, of any change that
materially affects the provision of
noncontributory with any other insurance maintained coverage of any person providing services
by the City of The Colony, Texas, for its benefit,
including self insurance. on the project;
13.8 WORKER'S COMPENSATION (7) post a notice on each project site
INSURANCE COVERAGE informing all persons providing services
on the project that they are required to be
13.8.1 The Contractor shall: covered, and stating how a person may
verify current coverage and report failure
(1) provide coverage for its employees to provide coverage. This notice does not
providing services on a project, for the satisfy other posting requirements
duration of the project based on proper imposed by the Act or other commission
reporting of classification codes and rules. This notice must be printed with a
payroll amounts and filing of any title in at least 30 point bold type and text
in at least 19 point normal type, and shall
coverage agreements; be in both English and Spanish and any
(2) provide a certificate of coverage showing other language common to the worker
workers' compensation coverage to the population. The text for the notices shall
governmental entity prior to beginning be the following text provided by the
Texas Worker's Compensation Comm-
ission on the sample notice, without any
additional words or changes:
(3) provide the governmental entity prior to
the end of the coverage period, a new
certificate of coverage showing extension
of coverage, if the coverage period shown REQUIRED WORKERS' COMPENSATION
on the contractor's current certificate of COVERAGE
coverage ends during the duration of the
project; "The law requires that each person working on this
site or providing services related to this construction
(4) obtain from each person providing project must be covered by workers' compensation
services on a project, and provide to the insurance. This includes persons providing, hauling,
governmental entity: or delivering equipment or materials, or providing
labor or transportation or other service related to the
(A) a certificate of coverage, prior to that project, regardless of the identity of their employer or
person beginning work on the project, status as an employee."
so the governmental entity will have
on file certificates of coverage "Call the Texas Workers' Compensation Commission
showing coverage for all persons at 512-440-3789 to receive information on the legal
providing services on the project; and requirement for coverage, to verb whether your
(B) no later than seven days after receipt employer has provided the required coverage, or to
by the contractor, a new certificate of report an employer's failure to provide coverage. "
coverage showing extension of
coverage, if the coverage period and
shown on the current certificate of
coverage ends during the duration of (8) contractually require each person with
the project; whom it contracts to provide services on a
project, to:
(5) retain all required certificates of coverage
on file for the duration of the project and (A) provide coverage based on proper
for one year thereafter; reporting of classification codes
and payroll amounts and filing of
(6) notify the governmental entity in writing any coverage agreements for all of
by certified mail or personal delivery, its employees providing services on
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the project, for the duration of the paragraph, with the certificate of
project; coverage to be provided to the
person for whom they are
(B) provide a certificate of coverage to providing services.
the contractor prior to that person
beginning work on the project;
ARTICLE XIV
(C) include in all contracts to provide
services on the project the language MISCELLANEOUS
in subsection (e) (3) of this rule;
14.1 LAWS AND ORDINANCES
(D) provide the Contractor, prior to the
end of the coverage period, a new 14.1.1 The Contractor shall at all times and in
certificate of coverage showing all respects observe and comply with all federal, state
extension of coverage, if the and local laws, ordinances, and regulations applicable
coverage period shown on the to the Project and Work. The Contractor shall further
current certificate of coverage ends insure that all Subcontractors observe and comply
during the duration of the project; with said laws, ordinances and regulations.
(E) obtain from each other person with 14.2 GOVERNING LAW
whom it contracts, and provide to
the Contractor: 14.2.1 The Contract shall be governed by the
laws of the State of Texas. Venue for any causes of
(i) a certificate of coverage, action arising under the terms or provisions of this
prior to the other person Contract or the Work to be performed hereunder shall
beginning work on the be in the courts of Dallas County, Texas.
project; and
14.3 SUCCESSORS AND ASSIGNS
(ii) prior to the end of the
coverage period, a new 14.3.1 The Owner and Contractor bind
certificate of coverage themselves, their successors, assigns and legal
showing extension of the representatives to the other party hereto and to
coverage period, if the successors, assigns and legal representatives of such
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 SEVERABILITV
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
services on the project; and 14.5 AMENDMENTS
(H) contractually require each other 14.5.1 This Contract may be amended by the
person with whom it contracts, to parties only by a written agreement duly executed by
perform as required by sub- both parties. The failure of the Owner to object to
paragraphs (A) - (H) of this any nonperformance or nonconforming work or to
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enforce any provision hereof shall in no event be
regarded as or construed to be a waiver, release or
modification of any term or provision in this
Contract, nor shall such failure to object or enforce
estop the Owner from insisting on strict compliance
with this Contract or from recovering damages, costs
or expenses arising as a result of such
nonperformance or nonconforming work.
14.6 NOTICES
14.6.1 All notices required by this Contract
shall be presumed received when
deposited in the mail properly addressed
to the other party or Architect at the
address set forth herein or set forth in a
written designation of change of address
delivered to all parties and the
Architect.
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EXECUTED in single or multiple originals, this I I day of , 2009.
CITY OF THE COLONY, TEXAS North American Information Systems
APPROVED:
Dale A. Cheatham, City Manager 0jinature)
Warren T. Smith
ATTEST: North American Information Systems
1203 S. Cedar Ridge Dr.
Duncanville, Texas 75137
Christie Wilson, City Secretary
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