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HomeMy WebLinkAboutResolution No. 09-064 CITY OF THE COLONY, TEXAS RESOLUTION NO. 09-064 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLONY, TEXAS, AWARDING A BID AND APPROVING THE TERMS AND CONDITIONS OF AN AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND BELDON ROOFING COMPANY FOR REPLACEMENT OF THE CITY HALL/LIBRARY ROOF, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City and Contractor have entered into an Agreement such that the Contractor is to provide the following services: Replacement of the City Hall/Library Roof; and WHEREAS, the City has determined that it is in the best interest of the City to enter into an Agreement with Beldon Roofing Company, which is attached hereto and incorporated herein 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 $285,150 for such work. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: Section 1. Bid #68-09-13-Roof is awarded to Beldon Roofing Company and the 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 $265,150 as the base amount, plus a $20,000 contingency amount, for a total not to exceed $285,150. Section 2. The City Manager is authorized to execute an Agreement for this work. Section 3. This resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this Stn day of September, 2009. G ye McCou ,Mayor ATTEST: a d istie Wilson, City Secretary APPROVED AS TO FORM: <',P r ;3 ,~`l Robert Hager, City A ey i CITY OF THE COLONY, TEXAS STANDARD AGREEMENT o~ i dwNF2 FACILITY MAINTENANCE CONSTRUCTION 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 Beldon Roofing Company, (hereinafter referred to as the "Contractor") for the replacement of the City Hall/Library roof at 6800 Main Steet, The Colony, Texas 75056, (hereinafter referred to as the "Project"), the Owner and the Contractor hereby agreeing as follows: contractual agreement between the Owner and any ARTICLE I person or entity other than the Contractor. THE CONTRACT AND THE CONTRACT 1.5 INTENT AND INTERPRETATION DOCUMENTS 1.5.1 The intent of this Contract is to require 1.1 THE CONTRACT complete, correct and timely execution of the Work. Any Work that may be required implied or inferred 1.1.1 The Contract between the Owner and by the Contract Documents, or any one or more of the Contractor, of which this Agreement is a part, them, as necessary to produce the intended result consists of the Contract Documents. It shall be shall be provided by the Contractor for the Contract effective on the date this Agreement is executed by Price. the last party to execute it. 1.5.2 This Contract is intended to be an 1.2. THE CONTRACT DOCUMENTS integral whole and shall be interpreted as internally consistent. What is required by any one Contract 1.2.1 The Contract Documents consist of this Document shall be considered as required by the Agreement, the bid specification documents, the Contract. proposal document with attendant drawings, scope of work and unit pricing, all which are attached hereto 1.5.3 When a word, term or phrase is used in and incorporated herein as Exhibits A through B, any this Contract, it shall be interpreted or construed, other amendments hereto executed by the parties first, as defined herein; second, if not defined, hereafter, together with the following (if any): according to its generally accepted meaning in the construction industry; and third, if there is no Documents not enumerated in this Paragraph 1.2.1 generally accepted meaning in the construction are not Contract Documents and do not form part of industry, according to its common and customary this Contract. usage. 1.3 ENTIRE AGREEMENT 1.5.4 The words "include", "includes", or "including", as used in this Contract, shall be deemed 1.3.1 This Contract, together with the to be followed by the phrase, "without limitation". Contractor's performance, payment and maintenance bonds for the Project, all General Conditions, Special 1.5.5 The specification herein of any act, Conditions, Plans and Specifications, and Addenda failure, refusal, omission, event, occurrence or attached thereto, constitute the entire and exclusive condition as constituting a material breach of this agreement between the Owner and the Contractor Contract shall not imply that any other, non-specified with reference to the Project. Specifically, but act, failure, refusal, omission, event, occurrence or without limitation, this Contract supersedes any bid condition shall be deemed not to constitute a material documents and all prior written or oral breach of this Contract. communications, representations and negotiations, if any, between the Owner and Contractor not expressly 1.5.6 Words or terms used as nouns in this made a part hereof. Contract shall be inclusive of their singular and plural forms, unless the context of their usage clearly 1.4 NO PRIVITY WITH OTHERS requires a contrary meaning. 1.4.1 Nothing contained in this Contract shall 1.5.7 The Contractor shall have a continuing create, or be interpreted to create, privity or any other duty to read, carefully study and compare each of the Page 1 TM 13175 vvv Contract Documents, the Shop Drawings, the Product Contractor shall have the right to keep one record set Data, and any Plans and Specifications, and shall of the Contract Documents upon completion of the give written notice to the Owner of any Project; provided, however, that in no event shall inconsistency, ambiguity, error or omission which the Contractor use, or permit to be used, any or all of Contractor may discover with respect to these such Contract Documents on other projects without documents before proceeding with the affected Work. the Owner's prior written authorization. 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 relieve the Contractor of the continuing duties ARTICLE II imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with this THE WORK Contract. The Owner has requested the Architect to only prepare documents for the Project, including the 2.1 The Contractor shall perform all of the Drawings and Specifications for the Project, which Work required, implied or reasonably inferable from, are accurate, adequate, consistent, coordinated and this Contract. sufficient for construction. HOWEVER, THE OWNER MAKES NO REPRESENTATION OR 2.2 WORK WARRANTY OF ANY NATURE WHATSOEVER TO THE CONTRACTOR CONCERNING SUCH 2.2.1 The term "Work" shall mean whatever DOCUMENTS. By the execution hereof, the is done by or required of the Contractor to perform Contractor acknowledges and represents that it has and complete its duties under this Contract, including received, reviewed and carefully examined such the following: construction of the whole or a documents, has found them to be complete, accurate, designated part of the Project; furnishing of any adequate, consistent, coordinated and sufficient for required surety bonds and insurance, and the construction, and that the Contractor has not, does provision or furnishing of labor, supervision, not, and will not rely upon any representation or services, materials, supplies, equipment, fixtures, warranties by the Owner concerning such documents appliances, facilities, tools, transportation, storage, as no such representation or warranties have been or power, permits and licenses required of the are hereby made. Further, the Contractor represents Contractor, fuel, heat, light, cooling and all other and warrants that it has had a sufficient opportunity utilities as required by this Contract. The Work to be to inspect the Project site and assumes any and all performed by the Contractor is generally described as responsibility for inadequacies or ambiguities in the follows: plans, drawings or specifications as well as for latent conditions of the site where the work is to be Removal of existing City Hall/Library Roof, replace performed. any wet insulation, repair any bad decking, and installation of a new Roof and repair of existing 1.5.8 As between numbers and scaled parapet walls in accordance with specifications and measurements on the Drawings and in the Design, the drawing issued by Roof Tech. at the City numbers shall govern, as between larger scale and Hall/Library at 6800 Main Street, The Colony, Texas, smaller scale drawings, the larger scale shall govern. as provided in the attached Exhibit "A" and Exhibit "B" being drawings and plans, which are made 1.5.9 Neither the organization of any of the hereof. 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. 1.6 OWNERSHH' OF CONTRACT DOCUMENTS 1.6.1 The Contract Documents, and each of them, shall remain the property of the Owner. The Construction Aereement for City Hall/Library Roof - Page 2 TM 13175.76.00 ~ 2.2.2 The Contractor shall be responsible for but not required, to withhold from any amounts 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 Owner to be adequate to recover the full performance of the Work and the for the full liquidated damages applicable to such delays. if and completion of the Project. All materials shall be new when the Contractor overcomes the delay in and materials and workmanship shall be of good achieving Substantial Completion, or any part quality. Upon request, the Contractor shall furnish thereof, for which the Owner has withheld payment, satisfactory proof of the type, kind, and quality of the Owner shall promptly release to the Contractor materials. those funds withheld, but 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 DAMAGES 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 commence the request time extensions by written change orders as Work within 10 days of receipt of a written Notice to provided for hereinafter. Should the Contractor be Proceed, and shall achieve Substantial Completion of delayed by an act of the Owner, or should the Owner the Work no later than ninety (90)) 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 or the Owners designee progress of the Work may be delayed by certain (RoofTech) shall have the authority to suspend the conditions beyond the control of the parties; these Work wholly or in part for such period or periods of delays have been contemplated by the parties and time as it may deem appropriate due to unsuitable considered in the time allotted for performance conditions considered unfavorable for the proper specified herein and includes, but is not limited to prosecution of the Work or for the failure of the delays occasioned on account of adverse weather, Contractor to carry out instructions from the Owner temporary unavailability of materials, shipment or Owner's representative. During any period in delays, and the presence and potential interference of which the Work is stopped or during which any of other contractors who may be performing work at the the Work is not actively in progress for any reason, Project site unrelated to this agreement. Contractor shall properly protect the site and the Work from damage, loss or harm. The number of calendar days from the date on which the Work is permitted to proceed, through the date set 3.2 SUBSTANTIAL COMPLETION forth for Substantial Completion, shall constitute the "Contract Time". 3.2.1 "Substantial Completion" shall mean that stage in the progression of the Work when the 3.1.2 The Contractor shall pay the Owner the Work is sufficiently complete in accordance with this sum of $240.00 per day for each and every calendar Contract that the Owner can enjoy beneficial use or day of unexcused delay in achieving Substantial occupancy of the Work and can utilize the Work for Completion beyond the date set forth herein for its intended purpose, even though minor Substantial Completion of the Work. Any sums due miscellaneous work and/or adjustment may be and payable hereunder by the Contractor shall be required. payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to 3.3 TIME IS OF THE ESSENCE be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner 3.3.1 All limitations of time set forth in the reasonably believes that Substantial Completion will Contract Documents are of the essence of this be inexcusably delayed, the Owner shall be entitled, Contract. Construction Agreement for City Hall/Library Roof - Page 3 TM 13175.76.00 ARTICLE IV 5.2.3 ' On or before the 25th day of each month after commencement of the Work, the CONTRACT PRICE Contractor shall submit an Application for Payment for the period ending the 15th day of the month to the 4.1 THE CONTRACT PRICE Owner in such form and manner, and with such supporting data and content, as the Owner may 4.1.1 The Owner shall pay, and the require. Therein, the Contractor may request Contractor shall accept, as full and complete payment payment for ninety percent (90%) of that portion of for all of the Work required herein, the base bid of the Contract Price properly allocable to Contract two hundred sixty thousand and four hundred dollars requirements properly provided, labor, materials and (260,400.00), with $20,000.00 for contingency and equipment properly incorporated in the Work, less $4,750.00 for replacement of the access ladder to the the total amount of previous payments received from roof. 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 ten (10) 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 stated in 4.1. be free and clear of liens, claims, security interest or other encumbrances in favor of the Contractor or any 5.2.2 PROGRESS PAYMENTS - Based upon the other person or entity whatsoever. Contractor's Applications for Payment submitted to the Owner and upon Certificates for Payment issued, 5.2.5 The Contractor shall promptly pay each the Owner shall make progress payments to the Subcontractor out of the amount paid to the Contractor on account of the Contract Price. Contractor on account of such Subcontractor's Work, the amount to which such Subcontractor is entitled. In the event the Owner becomes informed that the Construction Agreement for City Hall/Library Roof - Page 4 TM 13175.76.00 Contractor has not paid a Subcontractor as herein Subparagraph 5.3.1, the Contractor shall promptly provided, the Owner shall have the right, but not the comply with such demand. The Owner shall have no 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 PAY 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 hundred percent (100%) of the Contract Price less Construction Aareement for City Hall/Librarv Roof - Page 5 IZ' TM 13175.76.00 l 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 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 Construction Agreement for City Hall/Library Roof - Page 6 TM 13175.76.00 locations (if known), and a legal description of the Contractor shall perform no part of the Work at any Project site. time without adequate Contract Documents or, as appropriate, approved Shop Drawings, Product Data 6.1.2 Excluding permits and fees normally or Samples for such portion of the Work. If the the responsibility of the Contractor, the Owner shall Contractor performs any of the Work knowing it obtain all approvals, easements, and the like required involves a, recognized error, inconsistency or for construction and shall pay for necessary omission in the Contract Documents without such assessments and charges required for construction, notice to the Owner, the Contractor shall bear use or occupancy of permanent structures or for responsibility for such performance and shall bear the permanent changes in existing facilities. cost of correction. .6.1.3 The Owner shall furnish the Contractor, 7.2 The Contractor shall perform the Work free of charge, one copy of the Contract Documents strictly in accordance with this Contract and attached for execution of the Work. documents. 6.2 RIGHT TO STOP WORK 7.3 The Contractor shall supervise and direct the Work using the Contractor's best skill, 6.2.1 If the Contractor persistently fails or effort and attention. The Contractor shall be refuses to perform the Work in accordance with this responsible to the Owner for any and all acts or Contract, or if the best interests of the public health, omissions of the Contractor, its employees and others safety or welfare so require, the Owner or the Owners engaged in the Work on behalf of the Contractor. designee (Roofrech) may order the Contractor to stop the Work, or any described portion thereof, until 7.3.1 The Contractor shall give adequate the cause for stoppage has been corrected, no longer attention to the faithful prosecution of the Work and exists, or the Owner orders that Work be resumed. In the timely completion of this Contract, with authority such event, the Contractor shall immediately obey to determine the manner and means of performing such order. such Work, so long as such methods insure timely completion and proper performance. 6.3 OWNERS RIGHT TO PERFORM WORK 7.3.2 The Contractor shall exercise all 6.3.1 If the Contractor's Work is stopped by appropriate means and measures to insure a safe and the Owner under Paragraph 6.2, and the Contractor secure jobsite in order to avoid and prevent injury, fails within seven (7) days of such stoppage to damage or loss to persons or property. provide adequate assurance to the Owner that the cause of such stoppage will be eliminated or 7.4 WARRANTY corrected, then the Owner may, without prejudice to any other rights or remedies the Owner may have 7.4.1 The Contractor warrants to the Owner against the Contractor, proceed to carry out the that all labor furnished to progress the Work under subject Work. In such a situation, an appropriate this Contract will be competent to perform the tasks Change Order shall be issued deducting from the undertaken, that the product of such labor will yield Contract Price the cost of correcting the subject only first-class results, that materials and equipment deficiencies, plus compensation for additional furnished will be of good quality and new unless services and expenses necessitated thereby, if any. If otherwise permitted by this Contract, and that the the unpaid portion of the Contract Price is Work will be of good quality, free from faults and insufficient to cover the amount due the Owner, the defects and in strict conformance with this Contract. Contractor shall pay the difference to the Owner. All Work not conforming to these requirements may be considered defective. 7.5 The Contractor shall obtain all permits, ARTICLE VII fees and licenses necessary and ordinary for the Work. The Contractor shall comply with all lawful THE CONTRACTOR requirements applicable to the Work and shall give and maintain any and all notices required by 7.1 The Contractor is again reminded of its applicable law pertaining to the Work. continuing duty set forth in Subparagraph 1.5.7. The Construction Agreement for City Hall/Library Roof - Page 7 TM 13175.76.00 7.6 SUPERVISION 7.9 SHOP DRAWINGS, PRODUCT 7.6.1 The Contractor shall employ and DATA AND SAMPLES maintain at the Project site only competent supervisory personnel. Absent written instruction 7.9.1 Shop Drawings, Product Data, Samples from the Contractor to the contrary, the and other submittals from the Contractor do not superintendent shall be deemed the Contractor's constitute Contract Documents. Their purpose is authorized representative at the site and shall be merely to demonstrate the manner in which the authorized to receive and accept any and all Contractor intends to implement the Work in communications from the Owner or the Owners conformance with information received from the designee (Rooffech). Contract Documents. 7.6.2 Key supervisory personnel assigned by the 7.9.2 The Contractor shall not perform any Contractor to this Project are as follows: portion of the Work requiring submittal and review of Shop Drawings, Product Data or Samples unless NAME FUNCTION and until such submittal shall have been approved by the Owner and/or the Owners designee (Roofrech). Supervisor Approval by the Owner, however, shall not be evidence that Work installed pursuant thereto Inspector conforms with the requirements of this Contract. So long as the individuals named above remain 7.10 CLEANING THE SITE actively employed or retained by the Contractor, they shall perform the functions indicated next to their AND THE PROJECT names unless the Owner agrees to the contrary in writing. In the event one or more individuals not 7.10.1 The Contractor shall keep the site listed above subsequently assume one or more of reasonably clean during performance of the Work. those functions listed above, the Contractor shall be Upon final completion of the Work, the Contractor bound by the provisions of this Subparagraph 7.6.2 as shall clean the site and the Project and remove all though such individuals had been listed above. waste, rubbish, temporary structures, and other materials together with all of the Contractor's 7.7 The Contractor, within fifteen (15) days of property therefrom. Contractor shall dispose of all commencing the Work, shall submit to the Owner refuse at a Texas Natural Resource Conservation and the Owners designee (Rooffech) for its Commission approved landfill. The Contractor shall information, the Contractor's schedule for completing further restore all property damaged during the the Work. The Contractor's schedule shall be revised prosecution of the Work and shall leave the site in a no less frequently than monthly (unless the parties clean and presentable condition. No additional otherwise agree in writing) and shall be revised to payment shall be made by the Owner for this work, reflect conditions encountered from time to time and the compensation having been considered and shall be related to the entire Project. Each such included in the contract price. revision shall be furnished to the Owner and the Owners designee (Roofrech). Failure by the 7.11 ACCESS TO WORK AND INSPECTIONS Contractor to strictly comply with the provisions of this Paragraph 7.7 shall constitute a material breach 7.11.1 The Owner and the Owners designee of this Contract. (Roofrech) shall have access to the Work at all times from commencement of the Work through final 7.8 The Contractor shall continuously completion. The Contractor shall take whatever steps maintain at the site, for the benefit of the owner, one necessary to provide access when requested. When record copy of this Contract marked to record on a reasonably requested by the Owner or the Owners current basis changes, selections and modifications designee (Roofrech), the Contractor shall perform or made during construction. Additionally, the cause to be performed such testing as may be Contractor shall maintain at the site for the Owner the necessary or appropriate to insure suitability of the approved Shop Drawings, Product Data, Samples and jobsite or the Work's compliance with the Contract other similar required submittals. Upon final requirements. completion of the Work, all of these record documents shall be delivered to the Owner. Construction Agreement for City Hall/Library Roof - Page 8 1 TM 13175.76.00 V 9--- 7.12 INDEMNITY AND DISCLAIMER 6k(_ 7.12.1 OWNER SHALL NOT BE LIABLE OR RESPONSIBLE FOR, AND +4R TT) V BE A +11 O n A* f A! L /fY~ f~ 1 f 4 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. Iff-- +S-- HE• with regard to the minimum prevailing wage rates for all classes of employees, laborers, subcontractors, E'XP"SSED fNTE-NT &F THE - mechanics, workmen and persons furnishing labor T~ THIS AG 7~L~T E44 TTT A T T TE_ and services to the Project. The City of The Colony y ~'1 ffff)Fi~Rff+Y PRE) '19F44-TG9T 'T~9 has adopted a Prevailing Wage Rate Schedule, rn1.1rn 4 rT N 44; INP49~ rn.T i available to the Contractor by request, which VAC- Tr~rva~-B* GGrrTi-rn AGTOv T()-_ specifies the classes and wage rates to be paid to all -,TT nT,,,T, rT n~xn.Tw persons. The Contractor shall pay not less than the '~T~ minimum wage rates established thereby for each class, craft or type of labor, workman, or mechanic eE)N:FPbkea~T/\T ! S AS TT TzTTzTn A S TT TT employed in the execution of this Contract. The - rnr-rrr~ Construction Agreement for City Hall/LibM Roof - Page 9 TM 13175.76.00 I 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, 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. For this AND OTHER CONTRACTORS Contract the Architect will be RoofTech, herein, referred to as the Architect. 7.17.1 The Contractor shall use best efforts to leave undisturbed and uninterrupted all utilities and In the event the Owner should find it necessary or convenient to replace the Architect, the Owner shall Construction Agreement for City Hall/Library Roof - Page 10 I~ TM 13175.76.00 ; l 1 I G(c~'r ►]0 P i PU i V'1~ ~ c C S f ~n S e a OL N retain a replacement Architect and the status of the date of final completion, will receive and forward to 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 IO~~CCJJ 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 Construction Agreement for City Hall/Library Roof - Page 11 TM 13175.76.00 t~ 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. 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. Construction Agreement for City Hall/LibrM Roof - Page 12 TM 13175.76.00 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 Construction Agreement for City Hall/Library Roof - Page 13 (q 2, TM 13175.76.00 Q/ 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 11.1.1 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 approval 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 Construction Agreement for City Hall/Libra Roof - Page 14 TM 13175.76.00 j under this Contract. Establishment of the one year Owner as though the Owner had terminated the time period in Subparagraph 11.2.2 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 XU 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 THE 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: Construction Agreement for City Hall/LibrM Roof - Page 15 TM 13175.76.00 (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 ARTICLE XIIII this Paragraph. These costs shall not include amounts paid in accordance INSURANCE with other provisions hereof. 13.1 CONTRACTOR SHALL 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, Construction Agreement for City Hall/Library Roof - Page 16 y TM 13175.76.00 t _ 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. 13.7 PRIMARY COVERAGE The coverages provided herein shall be primary and (ti,L 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-ca*W6d- LoWN~ N p Construction Agreement for City Hall/Libra Roof - Page 17 `f- TM 13175.76.00 1 (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 verb 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 (G) "'Gle'eee° a in all ll evie **av«ev to pr-ode T--~~'iay informing all persons providing services on the project that they are required to be covered, and stating how a person may - verify current coverage and report failure (D) provide the Contractor, prior to the dk, L_ 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 Construction Agreement for City Hall/Library Roof - Page 18 TM 13175.76.00 la lpl V 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 Construction Agreement for City Hall/Library Roof - Page 19 TM 13175.76.00 Ivi EXECUTED in single or multiple originals, this Apg<-day of September , 2009. CITY OF THE COLONY, TEXAS BELDON ROOFING Company APPROVED: S~ Q. c Dale A. Cheatham, City Manager ( g ure) ATTEST: Beldon Roofing Company 2440 Lacy Lane Suite 106 Carrollton, TX 750 6 r Christie Wilson, City Secretary ~I Construction Agreement for City Hall/Library Roof - Page 20 1 2 TM 13175.76.00 e /c/o rcJ EXHIBIT A Construction Ajzreement for City Hall/Library Roof - Page 21 TM 13175.76.00