R-95-12-21-11D - 12/21/1995WHEREAS, the City of Round Rock has duly advertised for bids
for lighting energy conservation management for City buildings, and
WHEREAS,Amtec Lighting Services has submitted the lowest and
best bid, and
WHEREAS, the City Council wishes to accept the bid of Amtec
Lighting Services, Now Therefore,
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a contract with Amtec Lighting Services for
lighting energy conservation management for City buildings, a copy
of said contract being attached hereto and incorporated herein for
all purposes.
RESOLVED this 21st day of December, 1995.
ATTEST:
LAND, City Secretary
C:\ WPDOCS \RESOLUTI \RS51221D.WPD /s1s
RESOLUTION NO. R- 95- 12- 21 -11D
61 4
CHARLES C PPER, Mayor
City of Round Rock, Texas
DATE: December 18, 1995
SUBJECT: City Council Meeting, December 21, 1995
ITEM: 11D. Consider a resolution awarding a bid for lighting energy conservation
management for City buildings.
STAFF RESOURCE PERSON: Jim Nuse
STAFF RECOMMENDATION:
Please see the attached Memorandum from Bob Henry and Saleem Khan, Texas
Energy Engineering Services, Inc. regarding lighting improvements to City buildings.
Staff recommends award to Amtech for $44,067.10. The amount is within the
budgeted amount.
M E M O R A N D U M
TO: Howard Baker Director of Purchasing and Jim Nuse, P.E.
Director of Public Works, City of Round Rock, Texas
FROM: Bob Henry, P.E. and Saleem Khan
Texas Energy Engineering Services, Inc. (TEESI)
DATE: Wednesday, December 06, 1995
SUBJECT: Bids for Lighting Energy Management Project
Bidding Response:
On November 28, 1995 the City of Round Rock received one bid in response to its
solicitation to furnish material and labor to complete the Energy Conservation
Measures (Lighting System Improvements) project. Although only one firm submitted a
bid, packages ware obtained by K & S Enterprises of Austin, Texas and Lighting
Solutions of Austin, Texas. In addition to the three prospective contractors the bid
package was available at the Dodge Plan Room.
The one responsive bidder is Amtech Lighting Services of 8519 Eastern, San Antonio,
Texas 78216. The Amtech bid is $44, 067.10, which covers all labor and material to
complete the project as designed by ( TEESI). If Amtech is approved by the City, they
are committed to begin the project on January 2, 1996 and complete it by February 2,
1996. The work will be scheduled so that it will not interfere with normal City
operations. The bid is accompanied by a bid bond from Liberty Bond Services for 5%
of the amount bid.
Project Includes:
1. Converting all 40 and 34 watt fluorescent lamps to F32T8 lamps which
have a two year warranty
2. Converting all standard fluorescent ballasts to Electronic ballasts which
have a five year warranty and a life of fifteen years
3. Cleaning and repairing all fixtures
Project Benefits to the City of Round Rock:
1. Utility Cost Savings $15, 379 per year
2. Maintenance Savings $2,600 per year
3. Total Savings $17, 979 per year
4. Simple pay-back 2.4 years
Engineer's Recommendations:
Texas Energy Engineering Services, Inc. verified the references submitted by Amtech
and they are all favorable. In addition, Amtech has recently completed five projects
designed and managed by TEESI. All the projects were completed in a professional
and satisfactory manner.
All the pricing competitively bid by Amtech is in line with all of our recent projects. The
material and equipment necessary to complete this project is available.
Based on the responsiveness of the bidder, pricing, qualifications, references and
benefit to the City of Round Rock, TEESI recommends that the city award this project to
Amtech Lighting Services of San Antonio, Texas at the bid price of $44, 067.10.
Amtech Lighting Services
15241 Tradesman
San Antonio, Texas 78249
1.1 THE CONTRACT
1.2 THE CONTRACT DOCUMENTS
STANDARD FIXED PRICE
AGREEMENT BETWEEN
OWNER AND CONTRACTOR
ARTICLE I
THE CONTRACT AND THE CONTRACT DOCUMENTS
Notice to Bidders;
Special Instructions to Bidders;
Bid; and
General and Supplefinentary Conditions.
This Agreement is made by and between City of Round Rock (hereinafter referred
to as the "Owner ") and
(hereinafter referred to as the "Contractor") under seal for construction of lighting
retrofits at various campuses
(hereinafter referred to as the "Project "), the Owner and the Contractor hereby
agreeing as follows:
The Contract between the Owner and the Contractor, of which this
Agreement is a part, consists of the Contract Documents. It shall be
effective on the date this Agreement is executed by the last party to execute
it.
1.2.1. The Contract Documents consist of this Agreement, the Specifications, the
Drawings, all Change Orders and Field Orders issued hereafter, any other
amendments hereto executed by the parties hereafter, together with the
following (if any):
(here list any additional Contract Documents such as addenda, special
conditions, supplemental conditions, etc.)
PART D - 1
CONTRACT DOCUMENTS
L
:CCUme_ ^_cs not e ^ur „ e =at_d ;_ this Pa :ccumeacs and do =cc farm Part of this - e act Coat-map.:
Ccac. act_
.3.1 This Coac_acc, tccat
with t
�C tayrt ' 'Dct c for do '^"° Contractor S Ce'`--,,c=
.C_ t
C?us1 agreement '�' =`• CCa d tLlte t� Ce
- _° c= a ^cent bet J=` �tae owner a,d tie the entire `c
_---' t. e _ _ a j ec • shat - ica T COCt =aCtO= Ni
CC _matt sum -- -.r• hut Wi ri -Zi` •.iCII.,
erse.- -es `r o±d ccc xm__ a_d all - _-
_=ai cc ^ uaicaticas, - r- _ cs t =_c= w;_ - -_.
�ecxee_n_ the GWC•e= _ t_CP_s C ? °_ _ , - _= p_ if azv,
a7_C nr- - =CCC= 0C' c_• -Cr_s,
NO 9R — .,'. r
NCthiao CC-t_i eC Lm this
tt
:_ - OH: craate, --' -= a'__r cc =e= cc a == =ctu r
ac=e -
amd `r p -=ca c= entity c t_- -- tham t=am the
ZasiL
_ . E . _ - _ =e - '-e--- c_ _ -s Cc - - -_ ^- s co -
`-- time °• •- c- t-'- - ^ = C^.m_ _the
_ = _ c SYC_i - _ that may he
- hall he as imcermailv C _ -act .cC - -- -- - _ ^ -C. �V= a = DV
_ _____ __ us <_ ___ t- is Coat = .ae=
the test= =c_c- _ - __ - - -- t=_ its c==_= ' _ -- = r.==
the c=: st-•
ccr,.mcr_ --- . ' -- _ t a - -•
_ Cu _t_,..a_: usace. =5 _� its
The wcis "_ =c_ud° °
this Cc= tact, <,__ _ ”- „ - 1,,..= �i a_ i_- , .- -. ., as used
' %pit =cut -- he c ° =Te= to =,'” cm
nzr -
-. _ • 3 The szecificatica h
Cm_SS_ "• e
_•renc --_-=_ of c::_ acz,
Cc�.,= ° C: CC:'_C_C_C.. as CC. s-- - • - v
raac - -`ct this, Co _ - act -shall z______C a material _ _.. act, __ _„ _ _`'- aoc _mp? _r twat - a= pc.e =, acn
cca d, - - _erusa?, amiss°ca, event, occu ante c:
` -a a sca=l he deemed r_ct to ccasti-
__s Coati-act. __te a material breach o
O-.6 Wards cm terms used as ^cuS_s ___ this C -
cr_t_act shall be
inclusive of their si ncular and plural forms, unless the context of
their usage clearly requires a contrary meaninc.
1.5.7 The Contractor shall have a Cantiaui_ ^_c duty to read,
care fully study and commare each of the Contract Documents, the
Shan Drawincs and the Product_ Data and shall c_ re written notice to
the Owner of any inconsistency, ambicuity, error or omission which
the Contractor may discover with respect to these documents before
nrcceedjng with the of fatted Wort. The issuance, or the exmress or
imclie_ acnrcval by the Owner or the Enciaeer of the Contract
Documents, Shoo Drawings or Product Data shall not relieve the
Contractor of the continuinc'duties imccsed hereby, nor shall any
such approval be evidence of the Contractor's ccmnliaace with this
Contract. The Owner has requested the Enceneer to only prepare
documents for the Project, including the Drawincs and
Specifications for the Project, which are accurate, adequate,
consistent, coordinated and sufficient for construction. ROWS — ATER,
,.q TEE OWNER MAKES NO REPRESENTATION OR W P.Raii'P'r OF ANY N?'rur'.
WEATSCE4 R TO T_3 CONTRACTOR CONCERNING SUC-I SCI MOMENTS. . _y
execution hereof, the Contractor .ac awiedces and ' =T ==eats that
has =�_; vet, reviewed and carefully examined such documents,
has fcu,_d them to be comnlete, acetate, adecuace, consistenc,
coordinated and sufficient for construction, and that the
con tractor has mot, does act, and will nac =siv uoor_ any
represe .ration_ cr warranties by the Owner c orcer inc such documents
as nc such - =sentati on or wa_ ra: ties have been or are hereby
made.
1.5.6 As between numbers and scale_ measurements cm the
d.=awincs and in the design, the =umbers shall cavern; as between
i = _ stair and s oil scale drawincs, the _ -_- sc1 a sh all 1
L
cove =.
1.5.9 Neither the crrani =atian of any of the Contract Documents
into divisicns , sections, paracrap _s, articles (or other
c= ,- _cr the orcanicacter_ or arramcement of the Desic ,
shall control the Contractor in c_v_diac the Wart cr in
establish_ h_ extent or scone of the 'pork to performed et formed by
Subca-traC cars. _
1.6 OWNERSDD:P OF CON'IR CT DOC MINTS
1.6 .1 The Drawincs, Snecificac= ors and other documents prepared
by the Facineer are instrume_ats of cj 's service throuch
which the won't to be executed by the Contractor is described. The
Contractor shall have the right to keen one r =_card sec of the
•_
Contract Dccme_cs uLtii
�-cbmoletion of the Project; nrov_ded,
however, that in no event shall Contractor use, or permit to he
used, any or all of such Contract Documents an other projects
without the Owner's and Encineer's trio= written au'tharication
3
C
ARTICLE II
THE WORK
2.1 The Contractor shall perform all of the Work required, implied or reasonably
inferable from this Contract.
2.2 The term "Work" shall mean whatever is done by or required of the Contractor to
perform and complete its duties under this Contract, including the following:
construction of the whole or a designated part of the Project; furnishing of any
required surety bonds and insurance; and the provision or fumishing of labor,
supervision, services, materials, supplies, equipment, fixtures, appliances,
facilities, tools, transportation, storage, power, permits and licenses required of the
Contractor, fuel, heat, light, cooling and all other utilities as required by this
Contract. The Work to be performed by the Contractor is generally describes as
follows;
ARTICLE III
CONTRACT TIME
3.1 TIME AND LIQUIDATED DAMAGES
3.1.1 The Contractor shall commence the Work 44 /IQ-
ca c'=
(here insert any applicable date or Notice to Proceed provisions)
and shall achieved Substantial Completion of the Work no later than
Co isac�r, ✓. //ays , 199,8: The number of calendar days from the date on which the
Work is permitted to proceed, through the date set forth for Substantial
Completion, shall constitute the "Contract Time."
3.1.2 The Contractor shall pay the Owner the sum of 5200.00 per day for each and
every calendar day of unexcused delay in achieving Substantial Completion
beyond the date set forth herein for Substantial 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 Substantial 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 believed
by the Owner to be adequate to recover liquidated damages applicable to
such delays. If and when the Contractor overcomes the delay in
ac_ ie *rang Substantial Completion, or any part thereof, for which
the Owner has withheld payment, the Owner shall promptly release to
the Contractor those funds withheld, but no longer applicable, as
liouidated damages.
3.2 SUBSTANTIAT. COMPLETION
3.2.1. "Substantial Completion" shall mean that stace in the
progression of the Work when the Work is sufficiently complete in
accordance with this Contract that the Owner can enjoy beneficial
use or continency of the Work'and can utilize the Work for its
intended pu_r3ose.
3.3 TIME IS OF '! 4 ESSENCE
3.3.1 All limitations of time set forth in the Contract
Documents are of the essence of this Contract.
ARTICLE V
CONTRACT PRICE
4. TEE CONTRACT PRICE
4.1.1 The Owner shall pay, and the Contractor shall accept, as
full and complete payment for all of the Work reeuired herein, the
fixed sum of $ 44,067.10 The sum sec forth in
this P aracranh 4.1 shall constitute the Contract Price which shall
not be modified except by Change Order as provided in this
Contract.
5
ARTICLE V
?AY.t!`i_ OF TEE CONTRACT PRICE
St' - :i ruLE OF VALZS
5.1.1 Within ten (10) calendar days of the effective date
hereof, the Contractor shall submit to the Owner and to the
Engineer a Schedule of Values allocating the Contract Price to the
various portions of the Work. The Contractor's Schedule of Values
shall be prepared in such form, with such detail, and supported by
such data as the Encineer or the Owner may recuire to substantiate
its accuracy. The Contractor shall not imbalance its Schedule of
Values nor artificially inflate any element thereof. The violation
of this provision by tae Contractor shall constitute a material
breach of this Contract. The Schedule of Values shall be used only
as a basis for the Contractor's Applications for Payment and shall
only constitute such basis after it has been acknowledged in
writing by the Encineer and the Owner.
5
E
L
5.2 PAYMENT PROCEDURE
5.2.1 The Owner shall pay the Contract Price to the Contractor
as provided below.
5.2.2 PROGRESS PAYMENTS --- Eased upon the Contractor's
Applications for Payment submitted to the Engineer and upon
Certificates for Payment subsequently issued to the Owner by the
Encineer, the Owner shall make progress payments to the Contractor
on account of the Contract Price.
5.2.3 On or before the 5th day of each month after
commencement of the Work, the Contractor shall submit an
Application for Payment for the period ending- the last
of the month to the Encineer in such form and manner, ith
such supporting- data and content, as the owner and with
or the E
require. Therein, the Contractor may re west o rn n ir may
five percent 9 payment for ninety-
( 5°%) of that portion of the Contract Price properly
allocable to Contract requirements properly provided, labor,
materials and equipment properly.incorporated in the Work plus
ninety -five percent (95 %) of that portion of the Contract Price
properly allocable to materials or erniipment properly stored on
site (cr elsewhere if approved in advance in
for subsequent i
= nto__ wrthent by the Owner)
-- -- orat_or_ in the Work, less the total amount of
previous payments ��� =;vet from the Owner. Payment for Cr tractd
materials and equipment shall be conditioned upon_ the Contractor's
proof satisfactory to the Owner, that the Owner has title to such
materials and equipment and shall include proof of recu
Insurance. Such Application for Payment shall be sicned by the
Contractor and shall constitute the Contractor's representation
that the Work has precressed to the level for which payment is
requested in accordance with the Schedule of Values, that the Work
has been properly installed or performed in full accordance with
this Contract, and that the Contractor knows of no -_
Payment shculd not be made as re quest =^ eas t he e n ngy
mho,_o = <_ „_
will review the ___'e ' =- e teir
�lication for Payment and may also review the
Work at the Project site or elsewhere to determine whether the
cuantr_ty and quality of the Work is as represented in the
Application for Payment and is as required by this Contract. The
Engineer shall determine and certify tc the Owner the amount
properly owing to the Contractor. The Owner shall make partial
payment on account of the Contract Price to the Contractor within
thirty (30) days following the Engineer's receipt of each
Application for Payment. The amount of each partial payment shall
be the amount certified for payment by the Engineer less such
amounts, if any, otherwise .owning- by the Contractor to the Owner or
which the Owner shall have the right to withhold as authorized by
this Contract. The Engineer's certification of the Contractor's
Application for Payment shall not preclude the Owner from the
exercise of any of its rights as set forth in Paragraph 5.3
herei_m.below. .
6
5.2 - :4 The Contractor warrants that title to all Work covered by
an Anplication for Payment will pass to the owner no later than the
time of payment. The Contractor further warrants that upon
submittal of an Anplication for Payment, all Work for which
payments have been received from the Owner shall be free and clear
of liens, claims, security interest or other encumbrances in favor
of the Contractor of any other person or entity whatsoever.
5.2.5 The Contractor shall promptly pay each Subcontractor out
of the amount paid to the 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
Contractor has not paid a Subcontractor as herein provided, the
Owner shall have the right, but not the duty, to issue future
checks in payment to the Contractor of amounts otherwise due
hereunder naming the Contractor and such Subcontractor as joint
payees. Such joint check procedure, if employed by the Owner,
shall create no rights in favor of any person or entity beyond the
right of the named payees to payment of the check and shall not be
deemed to commit the Owner to repeat the procedure in the future.
5.2.6 Vo procress payment, nor any use or occupancv of the
Project by the Owner, shall be interpreted to constitute an
acceptance cf any Work non in strict accordance with this Contract.
5.3 W=TEE LD PAYMENT
5.3.1 The Owner may decline to make payment, may withhold
funds, and, if necessary, may demand the return of some or all of
the amounts previously paid to the Contractor, to protect the Owner
from loss because of:
7
L
1
E
1.
(a) defective Work not remedied by the Contractor
nor, in the opinion of the Owner, likely to be
re ed___ by the Conractor;
(b) claims of third parties against the Owner or
the Owner's property;
(c) failure by the Contractor to pay
Subcontractors or others in a prompt and
proper fashion;
(d) evidence that the balance of the Work cannot
be completed in accordance with the Contract
for the unpaid balance of the Contract Price;
- r
(e) evidence that the Work will not be completed
in the time required for substantial or final
completion;
(f) persistent failure to carry out the Work in
accordance with the Contract;
(c) damace to the Owner or a third party to whom
the Owner is, or may be, liable.
In the event that the Owner makes written demand upon the
Contractor for amounts previously paid by the Owner as contemplated
i thi suc s hmara a ph 5.3.1, the Contractor shall promptly comply
5 .4 UNEYCUSED PAILIIRE TO•PAY
5.4.1 If within ten (10) days after the date established herein
for payment to the Contractor by the Owner, the Owner, without
cause or basis hereunder, fails to pay the Contractor any amount
then due and payable to the Contractor, then the Contractor may
after seven (7) additional days' written notice to the owner and
the Engineer, and without prejudice'to any other available rights
or remedies it may have, stop the Work until payment of those
amounts due from the Owner have been received.
Any payment not
made within ten (10) days after the date due shall bear interest at
t=e _ace of six percent (' %) per annum.
5.5. SU?ST _NT1AL COMPLETION
5.5.1 When the Contractor believes that the Work is
substantially ccmmlece, the Contractor shall submit_ to the
Engineer a list of items to be completed or corrected.
When
E:_cineer on the basis of an inspection_ determines that the Work i s
in fact substantially complete, it will prepare a Certificate of Kate Of
Substantial
Completion which shall establish the date of
Substantial Completion, shall state the re sponsibilities of the
Owner and the Contractor for Project security, maintenance, heat,
utilities, damace to the Work, and insurance, and shall = *-x the
time within which e
the shall camc_
herein. Guarantees reaui_e the items listed
d by the cont =act shall commence on the
date of Substantial Completion of the Work. The C =--
+f andte of
Substantial
Completion shall be submitted to the Owner and the
Contractor for their written acceptance of the re sponsibilities
assigned to them in such certificate. Upon Substantial Completion
of and the Work, and execution by both the Owner and the Contractor of
the Certificate of Substantial Completion, the Owner shall pay the
Contractor an amount sufficient to increase total payments to the
Contractor to one hundred percent (100 %) of the contract price less
three hundred percent (3001,- ) of the reasonable cost as determined
by the Owner and the EnErirleer for completing all incomplete work,
correctinc and bringing into conformance all defective and
nonconforming Work, and handling all unsettled claims.
8
5.6 COMPLETION AND FINAL PAYMENT
5.6.1 When all of the Work is finally complete and the
Contractor is ready for a final inspection, it shall notify the
Owner and the Engineer thereof in writing. Thereupon, the
Encineer will make final inspection of the Work and, if the Work
is complete in full accordance with this Contract and this Contract
has been fully performed, the Engineer will promptly issue a final
C= -te for Payment certifying to the Owner that the Project is
complete and the Contractor is entitled to the remainder of the
unpaid Contract Price, less any amount withheld pursuant to this
Contract. If the Encineer is unable to issue its final
Certificate for Payment and is required to repeat its final
inspection of the Work, the Contractor shall bear the cost of such
reheat final inspection(2) which cost may be deducted by the Owner
from the Contractor's final payment.
5.6.1.1 If the Contractor fails to achieve final completion
within the time fixed therefor by tae Engineer in its Certificate
of Substantial Completion, the Contractor shall nay the Owner the
sum of $ 200.00 per day for'each and eve =r calendar day
of un_excused delay in achievinc 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 licuidated damages representing an estimate of
delay damaces likely to be sustained by the Owner, estimated at or
before_ the time of e_cecut_nc this Contract. When the Owner
reasonably believes that final completion will be u_nexcusabiy
delayed, the Owner shall be entitled, but not required, to withhold
from any amounts otherwise due the Contractor an amount then
believed by the Owner to be adecuate to recover liquidated damages
applicable to such delays. If and when the Contractor overcomes
the delay in achievinc final compietion, or any part thereof, for
which the Owner has withheld payment, the Owner shall promptly
° =se to the Contractor those funds withheld, but no lancer
acolicabie, as licuidated damaces.
5.6.2 The Contractor shall not be entitled to final payment
unless and until its submits to the Encineer its affidavit that all
payrolls, invoices for materials and equipment, and ocher
liabilities connected with the Work for which the Owner, ar the
Owner's property, michc be responsible, have been fully paid or
otherwise satisfied; releases and waivers of lien from all
Subcontractors of the Contractor and of any and all ocher parties
required by the Encineer or the Owner; consent of Surety, if any,
to final payment. If aav t=hird party fails or refuses to provide
a release of claim or waiver of lien as required by the Owner, the
Contractor shall furnish a bond satisfactory to the Owner to
discharge any such lien or indemnify the Owner from liability.
5.6.3 The Owner shall make final payment of all sums due the
9
r
i
}
1
C
ARTICLE VI
THE OWNER
Contractor within ten (10) days of the Engineer's execution of a
final Certificate. for Payment.
5.6.a Acceptance of final payment shall constitute a waiver of
all claims against the Owner by the Contractor except for those
claims previously made in writing against the Owner by the
Contractor, tending at the time of final payment, and identified in
writing by the Contractor as unsettled at the time of its reouest
for final payment.
6.1 INFORMATION, SERVICES AND THINGS REQUIRED FROM OWNS
6.1.1 The Owner shall furnish to the Contractor, at the time of
exec::tir_c this Contract, any and al1_written and tangible material
in its possession concerning conditions below around at the site of
the Project. Such written and tangible material is furnished to
the Contractor only in order to make complete disclosure of sue:
material and for no other purpose. Sy furnishing such material,
the Owner does not represent,warrant, or guarantee its accuracy
either in whole, in part, implicitly or explicitly, or at all, and
shall have no liability therefor. The Owner shall also ish
surveys, legal limitations and utility locations (if known), a
legal description of the Project site.
6.1.2 Excluding permits and fees normally the resmonsibility of
the Contractor, the Owner shall obtain all approvals, easements,
and the like r=_cuired for construction and shall pay for necessary
assessments and charges required for construction, use or occupancy
of permanent structures or for permanent chances in existing
facilities.
6.1.3 The Owner shall furnish the Contractor, free of charge,
5 conies of the Contract Documents for execution of the
Work. The Contractor will be charged, and shall pay the Owner,
S per additional set of Contract Documents which it
may recuire.
6.2 RIGHT TO STOP WORM
6.2.1 If the Contractor persistently fails or refuses to
per form the Work in accordance with this Contract, the Owner may
order the Contractor to- stao' the Work, or any described portion
thereof, until the cause for stoppage has been corrected, no longer
exists, or the Owner orders that Work be resumed. In such event,
the Contractor shall immediately obey such order.
10
6.3. OWNER'S RIGHT TO PERFORM WORE
6.3.1 if the Contractor's Work is stopped by the Owner under
Paracraph 6 2 and the Engineer fails within seven (7) days of
such stoppage to provide adequate assurance to the Owner that the
cause of such stoppage will be eliminated or corrected then the
Owner may, without prejudice to any other rights or remedies the
Owner may have acainst the Contractor, proceed to carry out the
subject Work. In such a situation, an appropriate Change Order
shall be issued deducting from the Contract Price the cost of
correcting the subject deficiencies, plus compensation for the
Engineer's additional services and expenses necessitated thereby,
if any. If the unpaid portion of the Contract Price is
insufficient to cover the amount due the Owner, the Contractor
shall may the difference to the Owner.
6. OWNER'S REPRESENTATIVE
6.4.1 The Owner's representative -.for the administration of this
Contract shall be Owner's Director of Construction. Communication
with the Owner shall be through the Director of Construction.
However, any Chance Order MMT(54X xXxxxXXXxxxxxy shall not be
bindinc upon Owner until agreed to by a majority of PxoomxXxxAm4x
OXXXXX (MMX City Council or the Council's designee.
7.4
WARRANTY
ARTICLE VII
THE CONTRACTOR
7.1 The Contractor is again reminded of its continuing duty
set forth in Subparagraph 1.5.7. The Contractor shall perform no
part of the Work at any time without adeeu.ate Contract Documents
or, as appropriate, approved shoo Drawings, Product Data or Samples
for such portion of the Work. If the Contractor performs any of
the Work knowinc it involves a recognized error, inconsistency or
omission in the Contract Documents without such notice to the
Engineer, the Contractor shall bear responsibility for such
perf ormance and shall bear the cost of correction.
7.2 The Contractor shall per form the Work strictly in
accordance with this Contract.
7.3 The Contractor shall supervise and direct the Work using
the Contractor's best skill, effort and attention. The Contractor
shall be responsible to the Owner for any and all acts or omissions
of the Contractor, its emc1oyees and others enraged in the Work on
behalf of the Contract
7.4.1 The Contractor warrants to the Owner that all labor
furnished to procress the Work under this Contract will be
11
11
L
competent to perform the tasks undertaken, that the product of such
labor will yield only first -class results, that materials and
equipment furnished will be of good quality and new unless
otherwise permitted by this Contract, and that the Work will be of
gocd quality,. free from faults and defects and in strict
conf ormance with this Contract. All Work not conforming to these
requirements may be considered defective.
7.5 The Contractor shall obtain.and pay for all permits, fees
and licenses necessary and ordinary for the Work. The Contractor
shall comply with all lawful.reauirements annlicable to the Work
and shall give and maintain any'and all notices required by
applicable law pertaining to the Work.
7.6 . SUPERVISION
7.6.1 The Contractor shall emnloy and maintain at the Project
site only competent supervisory personnel. Absent written
instruction from the Contractor to the contrary, the Superintendent
shall be deemed the Contractor's.authorized representative at the
site and shall be authorized to receive and accept any and all
ccmmunications from the Owner or the Engineer.
7 .6.2 Key supervisory personnel assigned by the Contractor to
this Project are as follows:
Name
Paul Moore
Mark Binns
1 2
Function
Branch Manager
Service Manager
So long as the individuals named above remain actively employed or
° by the Contractor, they shall perform the functions
indicated next to their names unless the Owner agrees to the
contrary in writinc. In the event one or more individuals not
listed above subsequently assume one or more of those functions
listed above, the Contractor shall be bound by the provisions of
this Subnaracraph 7.6.2 as though such individuals had been listed
above.
7.7 The Contractor, within fifteen (15) days of commencing
the Work, shall submit to the Owner and the Engineer for their
information the Contractor's schedule for completing the Work. The
Contractor's schedule shall be revised no less frequently than
monthly (unless the parties otherwise agree in writing) and shall
be revised to reflect conditions encountered from time to time and
shall be related to the entire Project. Each such revision shall
be furnished to the Owner and the Encineer.
Contractor to strictly comply with the provision ft is the
7.7 shall constitute's a material breach of this Contract. ctragraph
7 . 8 The Contractor shall continuously maintain at the site,
for the benefit of the Owner and the Engineer, one record copy of
^_ s Contract marked to record on a current basis chances,
selections and modifications made during construction.
Additionally, the Contractor shall maintain at the
Owner and Encineer for approved Shoo Drawings _ s_te ata the
Samples and other similar require . P Upc final
f nala,
d submittals. . inal
etion of the Work, all of these record documents shall be
delivered to the Owner.
7 . 9 SEOP DRAWINGS, PRODUCT DATA AND SAMPLES
7 .9.1 Shop Drawincs, Product ^
= Data, Samples and other submittals
from the Contractor do not cop_stitute.Contract Documents:- T
our pose is merely to demonstrate Their
r �_ the manner in which the
intends to implement the Work in conformance with _ . =crmat
° from the Contract Documents. �� -cr_
7 .9 • 2 The Contractor shall not perform env pox oior_ of the Work
___u_'_c submittal and review of Shop Drawings, Prddud_ a
Samples unless and until Data Ob
such submittal shall have been approved by
the En ci meer. Approval by the Encineer, _
evidence that the Work ' installed ed however, shall not be
.ntra___ pursuant thereto conforms with the
requirements of this Cont =act.
7.10 CLZAMONG T^ SITE AND THE
PROS ACT
7.70 The Contractor shall keep the site reasonably clean
dorm c Performance of the or titop_ final _ _ cample t - _or_ of the Work, - -
the Contractor shall clean the site and the Project and remove all
waste, together with all of the Contractor's property therefrom.
7.11 ACCESS TO WORM
7 . 11 _1 The Owner and the Encineer shall have access to the Work
at all times from commencement of the Work t=ouch final
commiet'_on. The Contractor shall take whatever steps necessary to
provide access when requested.
7.12 INDEMNITY
"Contractor agrees to and shall indemnify and hold harmless Owner, its officers, agents,
and employees, from and against any and all claims, losses, damages, causes of action,
suits and liability of every kind, including all expenses of litigation, court costs, and
attorney's fees for injury to or death to any person, or for damages to any property, arising
out of or in connection with the work done by the Contractor under this Agreement,
regardless of whether such injuries, death, or damages are caused in whole or in part by
the negligence of the Contractor or the Owner."
7.12.2. In claims against any'person or entity indemnified
under this Paragraph 7.12 by an employee of the Contractor, a
Subcontractor, anyone directly or indirectly employed by them or
anyone for whose acts they may be liable, the indemnification
obligation under this Paragraph 7.12 shall not be limited by a'
limitation on amount or type of damages, compensation or benefits
payable by or for the Contractor or a Subcontractor under
workers' compensation acts, disability..benefit acts or other
employee benefit acts.
ARTICLE VIII
CONTRACT ADMINISTRATION
8.1 TEE ENGINEER
8.1.1 The Engineer for this project is TEXAS ENERGY
ENGINEERING SERVICES, INC., 1301 CAPITAL OF TEXAS HIGHWAY, SUITE;'
B -127, AUSTIN, TEAS 73746. In the event the Owner should find
it necessary or convenient to replace the Engineer, the Owner
shall retain a replacement Engineer and the status of the
replacement Engineer shall be that of the former Engineer.
8.2 ENGINEER'S ADMINISTRATION
3.2.1 The Engineer, unless otherwise directed by the Owner in
writing, will perform those duties and discharge those
responsibilities allocated to the Engineer as set forth in this
contract. The Engineer shall be the Owner's representative from
the effective date of this Contract until final payment has been
made. The Engineer shall be authorized to act on behalf of the
Owner only to the extent provided in this contract.
8.2.2 The Owner and the Contractor shall communicate with
each other in the first instance through the Engineer.
8.2.3 The Engineer shall be the initial interpreter of the
requirements of the drawings and specifications and the judge of
the performance thereunder by the Contractor. The Engineer shall
render written or graphic interpretations necessary for the
proper.
14
execution or progress of the Work with reasonable promptness an
recuest of the Contractor.
8.2.4 The Engineer will review the Contractor's Applications
=or Payment and will certify to the Owner for payment to the
Encineer those amounts then due the Contractor as provided in
this Contract.
8.2.5 The Engineer shall have authority to reject Work which
is defective or does not conform to the requirements of this
Contract. If the Encineer deems it necessary or advisable, the
Encineer shall have authority to•reauire additional inspection or
testing of the Work for compliance with Contract recuirements.
8.2.5 The Engineer will review and approve, or take other
aporoariate action as necessary, concerning the Contractor's
submittals including Shop Drawings, Product Data and Samples. Such
review, approval or other action shall be for the sole purpose of
determining conformance with the design concept and information
Given through the Contract Documents.
9. .7 The Encineer will prepare Chance Orders and may
authorize minor chances in the Work by field Order as provided
elsewhere herein.
8.2.8 The Encineer shall, upon written recuest from the
Contractor, conduct_ inspections to determine the date of
Substantial completion and the date of final completion, will
receive and forward to the Owner for the Owner's review and records
written warranties and related documents required by this Contract
and will issue a final Certificate for Payment upon compliance with
the recuirements of this Contract.
8.2.9 The Engineer's decisions in matters relatinn to
aesthetic effect shall be final if consistent with the intent of
this Contract.
8.3 CLAIMS BY t CONTR4CTOP.
8.3.1 All Contractor claims shall be initiated by written
notice and claim to the owner and the Encineer. Such written
notice and claim must be furnished within seven (7) days after
occurrence of the event, or the first appearance of the condition,
giving rise to the claim.
8.3.2 Pending final resolution of any claim of the Contractor,
the Contractor shall diligently proceed with performance of this
Contract and the Owner shall continue to make payments to the
Contractor in accordance with this Contract. The resolution of any
claim under this Paragraph 8.3 shall be ref lected by a Chance Order
executed by the Owner, the Engineer and the Contractor.
1 5
8.3.3 CLAIMS FOR CONCEALED AND IINMTOWN CONDITIONS -
concealed and unknown conditions encountered in the performan nce d
the Work (a) below the surface of the around or (b) in an existing
of
structure be at variance with the conditions indicated by this
Contract, or should unknown conditions of an unusual nature
differing materially from those ordinarily encountered in the area
and generally recocnized as i r
provided for in ane-- -n Work of the character
shall be eeuitably adjust d by Change Order upon the written Price
and claim by either party made within seven (7) days after not
first observance of the condition. Ps a condition precedent to the
Owner having any liability td 'the Contractor for concealed or
unknown conditions, the Contractor must give the Owner and the
Encineer written notice of, and an opportunity to observe, the
condition prior to disturbing it. The failure by the Contractor to
make the written notice and claim as provided in this
shall constitute a waiver by the Cont Subparagraph
Contractor of any claim arising
out of or relatir_c to such concealed or
unknown condition.
8.3.4 CLAIMS FOR ADDITIONAL COSTS -
to make a claim for are increase ;n If the Con wishes
cc = =c:ltion - the Contract Price, =�
precedent to any liability of the Owner therefor, the
Contractor shall cive the Encineer written notice of such claim
within seven (7) days after the occ =ace of the event, or the
first appearance of the condition, civi_.
notice shall be Given by the Engineer before to such c aim. Such
e r be- ore fa by to
execute any additional
or chanced Mork. The failure by the
Contractor to cive such notice and to cive much notice prior to
executing the Work shall constitute
a waiver of any claim for
additional compensation.
8.3.4.1 In connection on with any claim by the Contractor against
the Cwner for compensation in excess of the Contract Price, any
liability of the Cwner for the Contractor's casts shall be strictly
limited to d
costs incurred by the Contractor and shall in no
event include ind4-= ^- costs or consequential damages of the
Contractor. The Owner shall net be liable to the Contractor for
claims of third parties, including Subcontractors, unless and until
liability of the Contractor has been established therefor in a
court of competent jurisdiction.
8.3.5 CLAIMS FOR ADDITIONAL TI2MMF,
If the Contractor is
delayed in progressing any task which at the time of the delay is
then critical or which during the delay becomes critical, as the
sole result of any act or neglect to act by the Owner or someone
acting in the Owner's behalf, or by chances ordered in the Work,
unusual delay in transportation, unusually adverse weather
conditions not reasonably anticipatable, fire or any causes beyond
the Contractor's control, then the data for achieving Substantial
Completion of the Work shall be extended upon the written notice
and claim of the Encineer to the Owner and the Encineer, for
such reasonable time as the Engineer may determine. Any notice
16
and claim for an extension of time by the Contractor shall be made
not more than seven (7) days after the occurrence of the event or
the first appearance of the condition giving rise to the claim and
shall set forth in detail the Contractor's basis for requiring
additional time in which to complete the Project. In the event the
delay to the Contractor is a continuing one, only one notice and
claim for additional time shall be necessary. If the Contractor
fails to make such claim as required in this Subparagraph, any
claim for an extension of time shall,be waived.
8.4 FIELD ORDERS •
8.4.1 The Engineer shall have authority to order minor changes
in the Work not involving a change in the Contract Price or in
Contract Time and not inconsistent with the intent of the Contract.
Such chances shall be effected by field Order and shall be binding
upon the Contractor. The Contractor shall carry out such Field
Orders promptly.
9.1 DEFINITION
9.2 AWARD OF Sr3CONTRACT
ARTICLE IX
SUBCONTRACTORS
9.1.1 A Subcontractor is an entity which has a direct contract
with the Contractor to per form a portion of the Work
9.2.1 Moon execution of the Contract, the Contractor shall
furnish the Owner, in writing, the names of persons or entities
proposed by the Contractor to act as a Subcontractor on the
Project. The Owner shall promptly reply to the Contractor, in
writing, stating any objections the Owner may have to such proposed
Subcontractor. The Contractor shall non enter into a subcontract
with a proposed subcontractor with reference to wham the owner has
made timely objection. The Contractor shall not be required to
subcontract with any party to whom the Contractor has objection.
9.2.2 All subcontracts shall afford the Contractor rights
against the Subcontractor which correspond to those ric_hcs afforded
to the Owner against the Contractor herein, including those rights
afforded to the Owner by Subparagraph 12.2.1 below.
_____ARTICLE X
CHANGES IN THE WORK
10.1 CHANGES PERMITTED
10.1.1 Changes in the Work within the general scope of this
17
Contract, consisting of additions, deletions, revisions, or anv_
combination thereof, may be ordered without invalidating this
Contract, by Chance Order or by Field Order.
10.1.2 Changes in the Work shall be performed under applicable
provisions of this Contract and the Contractor shall proceed
promptly with such changes.
10.2 ORANGE ORDER DEFINED
10.2.1 Change Order shall mean a written order to the Contractor
executed by the Owner and the Engineer, issued after execution of
this Contract, authorizing and directing a change in the Work or an
adjustment in the Contract Price or the Contract Time, or any
combination_ thereof. The Contract Price and the Contract Time may
be changed only by Change Order.
10.3 CE3NGES IN Ts:. CONTRACT PRICE
10.3.1 Any chance in the Contract Price resulting from a Chance
Order shall be determined as follows: (
a) by mutual agreement
between the Owner aid the Contractor as evidenced by
n ( _ ) the dance
i
_ the Contract Price being set forth in the Chance Order , •
chance in to Contract Price, tocecher ti (2) sue=
with. any conditions or
recuirements related thereto, being initialed by both parties and
(3) the Contractor's execution of the Chance Order, or (b) if no
mutual acreement cccurs between the Owner and the Contractor, then,
as provided in Subparacrath 10.3.2 below.
10.3.2 If no mutual agreement occurs between the Owner and the
Contractor as contemplated in Subparagraph 10.3.1 above, the
in the Contract Price, if any, shall then be determined by the
Engineer on the basis of the reasonable expenditures or savings of
those performing, deleting or revising the Work attributable to the
chance, including, in the case of an increase or d ° = =se in the
Contract Price, a reasonable allowance for direct job site overhead
and profit. In such case, the Contractor shall present, in such
form and with such content as the Owner or the Engineer requires,
an itemized accounting of such expenditures or savings, plus
appropriate summertime data for inclusion in a Chance Order.
Reasonable expenditures or savings shall be limited to the
followings: reasonable casts of materials, supplies, or equipment
including delivery casts, reasonable costs of labor, including
social security, old ace and unemployment insurance, fringe
benefits required by acreement or custom, and workers' compensation
insurance, reasonable rental. costs of machinery and ecuipment
exclusive of hand tools whether rented from the Contractor or
others, reasonable costs of premiums for all bonds and insurance,
pe-nit fees, and sales, use or other taxes related to the Work, and
reasonable cost of direct supervision and job site field office
overhead directly attributable to the change. In no event shall
any expenditure or savings associated with the Contractor's home.
18
office.or other non -job -site overhead expense be included in any
chance in the Contract Price. Pending final determination of
reasonable expenditures or savings to the Owner, payments on
account shall be made to the Contractor on the Engineer's
Certificate for Payment.
10.3.3 If unit prices are Provided in the Contract, and if the
euantities contemplated are so changed in a proaosed Chance Order
that application of such unit prices to the quantities of Work
or000sed will cause substantial inegtity to the Owner or to the
Contractor , the applicable unit prices shall be equitably
adjusted.
10.4 MINOR CEINGES
10.4.1 The Encileer shall have authority to order minor changes
in the Work not involving a chance in the Contract Price or an
extension of the Contract Time and not inconsistent with the intent
of this Contract. Such minor chances shall be made by
Field Order, and shall be binding upon the Owner and the
Contractor. The Contractor shall premntly carry cut such written
Field Orders.
10.5 EFFECT OF EXELuTED CL 3TGE ORDER
10.5 .1 The execution_ of a Chance Order by the Contractor shall
constitute conclusive evidence of the Contractor's acreement to the
ordered c_hances in the Work, this Contract as thus amended, the
Contract Price and the Contract Time. The Contractor, by executing
the Chance Order, waives and forever releases any claim acai nst the
Owner for additional time or compensation for matters relating to
or arisinc out of or result'nc from the Work included within or
a"--zed by the executed C"+ar_ce Order.
10.6 NOTICE TO SURETY: CONSENT
10.5.1 The Contractor shall notify and obtain the consent and
approval of the Contractor's surety with reference to all Change
Orders if such notice, consent or approval are required by the
Contractor's surety or by law. The Contractor's execution of the
Chance Order shall constitute the Contractor's warranty to the
Owner that the surety has been notified of and consents to such
Chance Order and the surety shall be conclusively deemed to have
been notified of such Chance Order and to have e:coressly consented
thereto.
11..1.1
.- - _ ARTIICLE XI
UNCOVERING CORRECTING WORK
UNCOVERING WORK
If anv of the Work is covered contrary to the Encineer's
19
1
request or to any provision of this Contract, it shall, if
required by the Engineer or the Owner, be uncovered for the
Engineer's inspection and shall be
Contractor's e_�coense wi Piopthey retraced at the
without chance in the Contract Time.
11.1.2 If any of the Work is covered in a manner not
inconsistent with Subparagraph 11.1.1 above, it shall, if recurred
i ? by the Engineer or Owner, be uncovered for the Engineer's
inspection. If such Work conforms strictly with this Contract,
I
costs of uncoverine and proper replacement shall by Chance Order be 7 th e Cont_ charmed to the owner. strictly ' r such Work does not strctly conforn with
_ctor pay the costs of uncovering and
proper replacement.
this Contract
11.2 CORRECTING WORM
11.2.1 The Contractor shall immediately proceed ,
rejected by the Encjneer as defective or �; to correct Work
this Contract. The C r fai__ng to conform to
Contractor shall pay all costs and expenses
associated with correcting such rejected Work, including any
additional testing and inspections, and rei mbursement to the Owner
for the Contractor's services and expenses made necessary n__es thereby.
_.- tae_e y.
11.2.2 If within one
the Work any of the (1) year pater Substantial Ccmpletior_ of
Won:: is found to be defective or not in
accordance with this Contract, the Contractor shall correct it
Promptly upon r =--o;pt of written notice from the Owner. This
oblicac_on shall survive fin pavment by the -
-+
of this contract. With i -- Owner and termination
ofmpie *_ed respect to Work first performed and
after Substantial Completion, this one year cb li Cation to
specifically correct der -ive and nonconforming W
extended by the period of pork shall be
time wr_u j elapses Work.
Substantial
Comp � etior_ and completion of the subject Svo -
11 - 2 -3 Nothing
contained in this Paragraph 1.
anv period of lim'tati - - 2 shall n stwhic
- era «�t; respect to other obligations which
the Contractor has under this Contract. Establi
' period in sc_aent of the one
veer time e_i Subparzcraph 11
the Contractor to specifically i e. relates only to the duty of
correct t the ark.
11 OWNER MAY
ACCEPT DEFECTIVE OR NONCONFORMING WORK
11.3.1 If
the Owner chooses to accept defective Or P_on_ccn =orminc
Work, the Owner may do so. In such event, the Contract
h Price shall
i be reduced
by t___ Greater of (a) the reasonable cost of removing
and con = ^"ing the defective or nonconforming Work, and (b) the
c' " =' ence between the fair value of the Project as
constructed and the fair market value of the Project had it not
been constructed in such a manner as to include defective or
nonconforming Work. If the remaining portion of c P the unpaid
Contract Price, if
anv, is insufficient to compensate the Owner for
its acceptance of defective or nonconforming Work, the Contractor
20
shall, upon written demand from the Owner, pay the Owner such
remaining compensation for accepting defective or nonconforming
Work.
ARTICLE XII
CONTRACT TERMINATION
12.1 TEEM:NR ATION BY THE CONTRACTOR
12 1.1 If the Work is stopped for a period of ninety (90) days
by an order of any court or other public authority, or as a result
of an act of the Government, through no fault of the Contractor or
any person or entity working directly or indirectly for the
Contractor, the Contractor may, upon ten (10) days' written notice
to the Owner and the Engineer, terminate performance under this
Contract and recover from the Owner payment for the actual
reasonable expenditures of the Contractor (as limited in
Subparagraph 10.3.2 above) for all Work executed and for materials,
ecui_ment, tools, construction ecuinme ^_t and machinery actually
purchased or rented solely for the Work, less env salvage value of
any such items. - - •
12.1.2 If the Owner shall persistently or _Heatedly fail to
perform any material obligation to the Contractor for a period of
fifteen (15) days after receivinc written notice from the
Contractor of its intent to terminate hereunder, the Contractor may
terminate terforme ce under this Contract by written notice to the
Engineer and the Owner. In such event, the Contractor shall be
entitled to recover from the Owner as thouch the Owner had
terminated the Contractor's performance under this Contract for
convenience pursuant to Subparagraph 12.2.1. hereunder.
12.2 . TERMINATION BY TEE OWNER
12.2.1 FOR CONVENIENCE -
12.2.1.1 The Owner may for any reason whatsoever terminate
performance under this Contract by the Contractor for convenience.
The Owner shall cive written notice of such termination to the
Contractor specifying when termination becomes effective.
12.2.1.2 The Contractor shall incur no f urther oblications in
connection with the Work and the Contractor shall stop Work when
such termination becomes effective. The Contractor shall also
terminate outstandinc orders and subcontracts. The Contractor
shall settle the liabili es� and cla ms a+- si*tg out of the
termination of subcontracts and orders. The Owner may direct the
Contractor to assign the Contractor's right, title and interest
under terminated orders or subcontract to the Owner or its
designee.
21
12.2.1.3 The Contractor shall transfer title and deliver to the
Owner such completed or partially completed Work and materials,
equipment, parts, fixtures, information and Contract rights as the
Contractor has.
12.2.1.4 (a) The Contractor shall submit a termination
claim to the Owner and the Engineer
specifying the amounts due because of the
termination for convenience together with
costs, pricing or other data required by the
Engineer. If the Contractor fails to file a
termination claim within one (1) year from the
effective date of termination, the Owner shall
pay the Contractor an amount derived in
accordance with subparagraph (c) below.
(b) The Owner and the Contractor may agree to the
compensation,if anv, due to the Contractor
hereunder. •
(c) Absent agreement to the amount due to the
Contractor, the Owner shall pay the Contractor
the following amounts:
(i) Contract mrices for labor,
materials, equipment and other
service accepted under this
Contract;
(ii) Reasonable costs incurred __ s
preparing tc perform and in
performing the terminated portion of
the Work, and in terminating the
Contractor's performarcm, plus a
fair and reasonable allowance for
overhead and profit thereon (such
profit shall not include anticipated
profit or consequential damages);
provided, however, that if it
appears that the Contractor would
have not profited or would have
sustained a loss if the entire
Contract would have been completed,
no profit shall be allowed or
included and the amount of
compensation_ shall be reduced to
?=eflect the anticipated rate of
loss, it any;
(iii) Reasonable costs of settling and
paying claims arising out of the
termination of subcontracts or
22
The total sum to be paid the Contractor under this
Subparagraph 12.1.1. shall not exceed the total Contract Price, as
properly adjusted, reduced by the amount of payments otherwise
made, and shall in no event include duplication of payment.
12.2.2 FOR CIUSE
orders pursuant to Suboaracrach
12.2.1.2 of this Paraaramh. These
costs shall not include amounts maid
in accordance with other provision
hereof.
12.2.2.1 If the Contractor persistently or repeatediv refuses or
=ails to prosecute the Work in a timely n er, supply enough
.properly skilled workers, suner=risory personnel or proper eauipment
or materials, or if it fails to make prompt payment to
Subcontractors or for materials or labor, or persistently
disregards laws, ordinances, rules, reculacions or orders of any
public authority havi=c jurisdiction, otherwise is guilty of a
substantial violation of a material provision of this Contract,
then the Owner may by written notice to the Contractor, without"'
prejudice to any other right or remedy, terminate the emplovment of
the Contractor and taste possession of the site and of all
materials, ecuipme_ ^_c, tools, construction_ ecuinment and machinery
thereon owned by the Contractor and may finish the Work by whatever
methods it may deem expedient. In such case, the Contractor shall
rot he entitled to = - ' 4 ve any further payment until the Work is
finished.
12.2.2.2 if the unpaid balance of the Contract Price exceeds the
cost of =_.ishine the Work, including compensation for the
I ncineer' s additional services and e=cpenses made necessary thereby,
such excess shall he maid to the Contractor. such cost exceeds
the un_ aid balance, the Contractor shall may the d4 ===*-=nce to the
Owner. This ohliaat_on for payment shall survive the t =*m
of the Contract.
j12.2.2.3 In the event the employment of the Contractor is
terminated by the Owner for cause pursuant to Subparagraph_ 12.2.2
and it is subsequently determined by a Court of competent
jurisdiction that such termination was without cause, such
termination shall thereupon be deemed a Termination_ for Convenience
under Suboaragramh 12.2.1 and the provisions of Subparagraph 12.2.1
shall apply.
23
ARTICLE XIII
INSURANCE
3 13.1 CONTRACTOR'S LIABILITY INSURANCE
Z The Contractor shall purchase and maintain
1 protection from the claims set forth below = ou fof
ns under may or result from the Contractor's e arise
cut of
whether such operations be by the Contractor n h unt_
o by any
, Subcontractor, or by anyone d= - =^
of the, or by or inci- «iy emn loved any
an1 ycr_e for whose acts is any of tern may be liable.
(1) Claims under workers' or workmen's compensation,
disability benefit and other similar employe
benefit acts;
(2) Claims for damaces because of bodily injury,
occupational sickness or disease, or death of the
Contractor's employees;•
(3) Claims for d a ^aces because of bodily injury,
sickness or disease, or death of any o n
y person other
than the Contractor's employees
(4) Claim for camaces insured by usual personal injury
liability coverace which are sustained (1) by
a result of an off any
Person as
rinse d� -_-•� l v or
indirectly related to the emrlovment of such
2 person_
by the Contractor, or
(2) by any other person;
(5) Claims for damages, other tsar.
to the Work itself,
destruction of injury to or destrction cf anc=_blo_
property, - ncludinc loss of use result - nc
therefrom and -
(E) Claims for camaces because of bodily injury or
death of any person or property damage arising out
of the ownership, maintenance or use of any motor
vehicle. any
Claims involving contractual liability aoolicable
to the Contractor's oblicatiors under P=racrapr_
7.12.
such insurance shall be purchased from a company or
companies lawfully authoriaed'to do business in the State or. Texas.
• This insurance shall remain in force during the term of the
--off ect •Th C of Round Rock shall be named as an additional in urcr
13.1.2 The insurance recuired by Subparagraph 3.1 1 shall
written for:
1 s.:a__ be
24
Refer to Exhibit "B"
Project: Cost
Um to $2,499,999
$2,500,000-54,999,999
5
$7,500,000 and over
25
• (1) WORKERS' COMPENSATION AND EMPLOYERS LIABILITY
Workers' Compensation - Statutory
Texas
(2) COMMERCLAL GEN.ERAL LIABILITY
General Acarecate
Prod/Como-On Aggregate
Pers/Adverr. Injury
Each Occurrence
Fire Damace
Medical Exnense
Cove shall include
Premises - Operations
indeoendent Contractors
Produces - Completed Onerations
Contractual Liability
Explosion, Collapse,
& Underaround Hazards
road Form Property Damage
(3) COMPREHENSIVE AUTOMOBILE LIABILITY
Owned, Non-Owned, and Hi
Combined Sincle Limit S 1,000,000
(4) EXCESS LIABILITY (UMBRELLA FORM)
Coveraae
Reauired
$1,000,000
— $2,000,000
53,000,000
$4,000,000
$ 1,000,000
1,000,000
500,000
500;000
50,0
5,000
3.1.3 Duplicate certifizata of insurance accentable to the
Owner shall be submitted to the Owner prior to commencement of the
. These certificates shall contain a provision that coverages
forded under the policies will not be cancelled until at least
thirty days' prior written notice has been aiven to the Owner.
•
13.2 PROPERTY 5�.�7SIIRANC^-.
13.2.1 Until the Work is completed and accepted by the Owner,
the Contractor shall purchase and maintain "builder's risk"
property insurance upon the entire work at the site to the full
insurable value thereof. If not covered under the all risk
insurance or otherwise provided in the Contract Documents, the
Contractor shall effect and maintain similar property insurance on
Portions of the Work stored off the site or in transit when such
portions of the Work are to be included in an Application for
Payment. This insurance shall include the interest of the Owner,
the Contractor, subcontractors •and sub - subcontractors in the Work
and shall insure against the perils of fire and extended coverage
and shall. include "all- risk" insurance for h sical loss damane
p y oss or
includinc, without duplication of coverage, theft, vandalism
malicious mischief, and shall contain an installation floater.
This all -risk policy shall be written exas Form #21
(Actual Completed Value Form) and Form #77 (General Charge
Endorsement Incorporatinc the Following Lan_cuaee: "Pe ;
riven for the project insured hereunder to become occunieds -th is
insurance remaininc in full force•and effect until such time as the
work has been accepted by the Owner. ") l
e'r'- b the Such insurance h 3 ad_y to
evidenced �> kind of policy which does not have to he adjusted
or reported upon period= 11 y, but provides constant insurance at
full 100% of all insurable values as they are created durjnc
consc_ucc_or_ by performance of the cener=l contract The
certificate of insurance must include the names of the insured
fl Contractor and the Owner.
13 .2.2 The Owner and the Contractor waive all
r_cnts aczinst (i)
each other and the Subcontractors, Sub acents and
employees of each other, and (2) the Engineer and Separate
contractors, if any, and their subcontractors, sub - subcontractors,
acents and employees, for damace caused by fire or ocher perils to
the extent covered by insurance obtained pursuant to this P
13.2 or any ocher property insurance applicable to the Work, e.:cenz
such r_chts as they may have to the proceeds of such insurance held
by the Owner as trustee. Theoreccinc waiver afforded the
Engineer, its agents and employees shall not extend to the
liability imposed by Paracraph 7.12. The Owner or the Contractor,
as appropriate, shall recuire of the Encineer, separate
contractors, Subcontractors and Sub - subcontractors by appropriate
acreements, written where legally required for validity, similar
waivers each in favor of all other parties enumerated in this
Subparagran? 13.2.2.
13.2.3 Loss under such.bui,rder's risk all -risk insurance shall
be made payable jointly to the Owner and to the General Contractor
by name. The Contractor shall pay each Subcontractor a just share
of any insurance monies received by the Contractor, and by
appropriate agreement, written where legally required for validity,
25
shall require each Subcontractor to make payments to their Sub
contractors in similar manner.
13.2.4 In the case of loss under the risk covered, and of
collection by the insured, the Owner shall act as trustees for the
Contractor as his interests may appear. The original builder's
risk all -risk insurance policy certificate shall be delivered to
and left in the safekeeping of the Owner, a cony being retained by
the General Contractor (and certif icates or copies being furnished
the separate subcontractors, if any)_
13.3. If fOr any reason the Contractor fails to maintain any
Insurance coverage recuired of - him under this Article 13,
Owner, at the Owner's option, the
may purchase and maintain comparable
insurance to that recuired by �_cle 13, h-
this gr�, and charge a the cons
thereof against the Contractor by offsetti
sum due the Contractor under this r ng such such h s a
" th's ac_eement, and such charge shall
he made without the need for the execution of a change order.
13.4 WAGE RATES
Refer to Exhibit "A"
14 GOVERNING LAW
14.1.1 The Contract shall be governed by the
where the Project is located
14.2 SUCCESSORS AND ASSIGNS
AaT_CIE XIV
MISCELLANEOUS
1 1 The Currier and Contractor bind themselves, their
successors, assigns and legal: representatives, to the oche_
hereto and to successors, assigns and legal _ ese psuch
ep
ocher party, in resaect to covenants, agred cb es of osh
e
contained i meats and ligatiths
n th_s Contractor. The Contractor shall not assign this
Contract without written consent of the Owner.
27
law
of the place
14.3
SURETY BONDS
14.3.1 The Contractor shall furnish separate performance and
payment bonds to the Owner. Each bond shall set forth a penal sum
=n an amount not less than the Contract Price. Each bond furnished
by the Contractor shall incorporate by reference the terms of this
Contract as fully as though they were set forth verbatim in such
bonds. -n the event the Contract Price is adjusted by Chance Order
executed by the Contractor, the penal sum of both the performance
bond and the payment bond shall be deemed increased by like amount.
The performance and Payment bonds furnished by the Contractor shall
be in a form recuired by Article 5160, V.A.T.S., and shall be
executed by a- surety, sureties or ,
' r re_nsurers authorized and
licensed to do business in Texas.
OWNER
CITY O F �ouNO Rock,
(T d Name)
S_cnat___)
•
C11/91& s ell r yok
(=r -:zed Name, T=r'
ard address)
Rounho RoC/ 7)(. W
(Dace c-
28
CONTRACTOR
Amtech Lighting Services
(Tvpe Name}
(S ` /
Paul Moore, Branch Manager
15241 Tradesman San Antonio, TX 78249
n ,-, ^ter Name, __tle
and Address)
(Dace of Execuci cr_)
Seal & Signature of Seer-eter
(If Corporation) Secvtary
r
INSURANCE COMPANIES
Coverage
A Continental Casualty Co.
'14
B Transportation Insurance Co.
cO
C National Union Fire Ins. Co.
GL 502520134
_
D
Bodily
Injury
E
Personal
Injury
CERTNO 2854 BRANCH 3618
FORM 6
Co.
Coverage
Policy Number
Expiration
Limits of Liability
A
GENERAL LIABILITY
x Commercial Form
x Elevator Liability
x Premises - Operations
x Explosion & Collapse Hazard
x Underground Hazard
x Products /Completed
Operations Hazard
x Contractual Insurance
x Broad Form Property Damage
x Independent Contractors
x Personal Injury_
x Owners, Contractors, Tenants,
& Landlords Liability
GL 502520134
_
11/01/96
Bodily
Injury
$1,000,000
CSL
Personal
Injury
$ Included
Above
Property
Damage
'
$ Included
Above
A
AUTOMOBILE LIABILITY
Comprehensive Form
x Owned
x Hired
x Non -Owned
x Garage Keepers Legal Liability
BUA 002520131
11/01/96
Bodily
Injury
$1,000,000
Property
Damage
$1,000,000
B
Workers' Compensation
WC 902520129
11/01/96
Statutory
Employers Liability
Same
$1,000,000 each accident
C
Employee Dishonesty/
Fidelity Insurance
4459895
11/01/96
$1,500,000
Industries
Incorporated
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE
DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES LISTED BELOW.
CERTIFICATE HOLDER:
The City of Round Rock
221 East Main Street
Round Rock, TX 78664
INSURED:
Amtech Lighting Services
15241 Tradesman
San Antonio, TX 78249
This is to certify that policies of insurance Listed below have been issued to the insured named above and are in force at this
time. Notwithstanding any requirement, term or condition of any con ract or other document with respect to which this certificate
may be issued or may pertain, the insurance afforded by the policies described herein is subject to all the terms, exclusions and
conditions of such policies.
COVERAGE IS PER OCCURRENCE
WAIVER OF SUBROGATION APPLIES TO EXTENT INDEMNIFIED BY CONTRACT
CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE, THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN NOTICE TO THE ABOVE
CERTIFICATE HOLDER.
BROKER:
Willis Corroon of California
50 California Street
San Francisco, CA 94111
e y5 /a -a i - //v
CERTIFICATE OF INSURANCE
03/18/96
AUTHOIFI ZED SIG
AUTHORIZED SIGNATURE
DATE ISSUED * See Attached *
m
/ yl Industries
If �n Incorporated
Continental Casualty Co. POLICY NUMBER: GL 502520134 COMMERCIAL GENERAL LIABILITY
ADDITIONAL INSURED- OWNERS, LESSEES OR
CONTRACTORS (FORM B)
THE CITY OF ROUND ROCK
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
Name of Person or Organization:
SCHEDULE
(If no entry appears above, information required to complete this endorsement will be shown in
the declarations as applicable to this endorsement)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization
shown in the Schedule, but only to the extent that said person or organization is indemnified
by the policy holder's contract with said insured. The insurance with respect to such insured
shall not exceed such coverage and limits of liability in the written agreement nor the
coverage and applicable limits of this policy.
CO 20 10 11 85 Copyright, Insurance Services Office, Inc., 1984 CERTNO 2854
95 a/ //D 1
STANDARD FIXED PRICE
AGREEMENT BETWEEN 1
OWNER AND CONTRACTOR
This Agreement is made by and between City of Round Rock (hereinafter referred
to as the "Owner") and
Amtech Lighting Services
15241 Tradesman
San Antonio, Texas 78249 1
(hereinafter referred to as the "Contractor") under seal for construction of lighting
1
retrofits at various campuses
(hereinafter referred to as the 'Project'), the Owner and the Contractor hereby
agreeing as follows:
1
ARTICLE I II THE CONTRACT AND THE CONTRACT DOCUMENTS
1.1 THE CONTRACT
1.1.1 The Contract between the Owner and the Contractor, of which this
Agreement is a part, consists of the Contract Documents. It shall be
effective on the date this Agreement is executed by the last party to execute
it.
1.2 THE CONTRACT DOCUMENTS 1
1.2.1. The Contract Documents consist of this Agreement, the Specifications, the
Drawings, all Change Orders and Field Orders issued hereafter, any other
amendments hereto executed by the parties hereafter, together with the
following (if any):
Notice to Bidders;
Special Instructions to Bidders;
1
Bid; and
General and Supplefmentary Conditions.
(here list any additional Contract Documents such as addenda, special t
conditions, supplemental conditions, etc.)
PART D - 1
CONTRACT DOCUMENTS
1
I ccume^ts not enumerated in this Pares—re—oh 1.2.1• a
ccumer_ts and do act _arm part of biz Ccntrzct _e not Ccr_tract
.
muTTPz 3GRE Y T
This Contract, tccetber with the Cent-rector's
d tayme_t bo . f a the Project, constitute re e tare and
c�nsi acree between �= t ' and
t__ Owner and the
=ice to the Project_ Speci_i ii Ca=t °czar with
this Cent_ra c =- -!s but wit cut rim =tztioa
ct suzerseces y bid. documents and ai? wrier w= =
II a1 cemmu ications, rn r -
etwee-n_ o7__-2- ^-tattoos a d P °CCCiaCiCns, ar
t - Gwr±er and CcP -C_zc c _ - - - �='r,
11
NO P ?._ .7MT W1 OTC? c
1.4.1 ' N china ca nt=— ed in this C
�`_•-- ,.- ___,,; to create, - - , 7 _Contract atraC- Si el 1
D"'_i C_
create, a be
� _- '' � =_r other contractual _ _
t Owner aarid a`v perscn - ac =_= he
etue�a
Coat c= eat. - r cc= er _
_„T . , r moor
• t
, - --_ =- ---__ c thi
_c s Cc- -Q =- is e -
II-- the Work-. =v ~ ;vc =_ - -- be
or more _ _ - n_r ___ C..___ -CC Documents, or _
C e^ a _ _. - == -- .�E"' r __ _1
Oro e ." nv `. - -- - -- - ^ --,- - duce _ r - r = t _ 1
._ This Cc-trat- is intended
a -_ be ' - -_ - -�. . _ad.ea to be a-. � ate -=rat wear= a=id
- --t = =- as iota= -a__v con= =--t. Wham is _ ___
-- h
- iv are Car_ act Occumen e
on
shall he con sidered -- --- , i - - - .=- 4 by the
Sine t° _
..- � i 1 __ _ _ _..� - is used ___ this C.�. =tint c.- it
sectnd, =e defined, --_ cs
a- ._- ' ^_e= =l i V az -- - 1--="-='=;
.E.2
'aceOCec men =_= c _.n __ - �' ` "- == - -- if there no can-=l .
-a t -e cor_str.- cz art = r, accord._ c
common a__- Cr-,- ustoe LTsace. - - - - -� - its
'•S.c
The words "include," , "i , eludes, or
it.
this Co =tract, =i1 deemed _ ;=cludiac, + as used
"wi.t -cut i shall - a ce ° -aec to be followed hy th G =
' - 5. 5
The smeci ='- cation te=eia of a=y ac Failure, 1
::r_ sii
omission, event, occ
_-- _= 0= all condit as -cost' tSt =c a mater' a1
,
=ch of this Cor_traCt - shall _: e„ __ not , imp? y t~at `:r ocher, non-
acz, =.=horn, re fusal, amiss' ci , e occurrence
condition shall he deemed mat to cease ' onto a material breach
is contract. - -
1..5.6
1
1
Swards cr terms
used as nouns i- this Cont=act. shall be
of.
inclusive.of their singular and plural forms, unless the context of
their. usage clearly reeuires a contrary meaninc.
1.5.7 The Contractor shall have a continuinc duty to read,
carefully study and comtare each of the Contract Documents, the
Shop Drawings and the Prcduct Data and shall give written notice to
the Owner of any inconsistency, ambicuity,'error or omissicn which
the Contractor may discover with respect to these documents be
proceeding with the affect W ork. The issuance, or the express or
implied approval by the Owner or the Engineer of the Contract
Documents, Shot Drawings or Prcduct Data shall not relieve the
Contractor of the ccatinuing'duties imposed hereby, nor shall any
such approval be evidence of the Contractor's comniiance with this
Contract. The Owner has requested the Engineer to only prepare
documents for the Project, including the Drawings and
Specifi cations for the' Project, which are accurate, adequate,
consistent, coordinated and sufficient far construction_. HOWEVER,
THE OWNER MAKES NO REPRESENTATION OR WFi'I'Y OF A= NATURE
WHATSOEVER EP. TO THE CONTRACTOR CONCERNING SUCH' DCC`JMTM'331T$ . Sy
execution hereof, the Contractor•ack cwledges and T'e ^T'ese.t.s that
it has y-+ �, reviewed and carefully examined such documents,
has found them to be complete_, accurate, adecuate, consistent,
coordinated and sufficient for cor_st=uctior-, and than the
contractor has not, does not, and will not __1y uoon- any
repre_se .cation Or warra ties by the Owner concer''_i.c such documents
as no such rep rese ^_Cation or warranties have been or are hereby
made.
1.5.S As between numbers and scaled measurements on the
drawin cs and in the design, the numbers shall cavern; as between
larcer scale and smaller scale drawiacs, the larcer scale shall
cover..
1.5.9 Neither the organization of av of the Contract Documents
-Into divisions, sections, taracrachs, article (or ocher
per the orcanizacioo. or arrancement of the` Desicn ,
shall control the Contractor in dividinc the Work or in
escablis: nc t__ extent or scope of the Wort to be per formed by
Subcontractors.
1.6 OWNERSE3 OF CONTRACT DOCIIM NTS
1.6.1 The Drawings, Specifications and other documents prepared
by the Engineer are instr uments of the Engineer's service through
which the work to be executed by the Contractor is described. The
Contractor shall have the right to keep one record set of the
Contract Documents uoas of the Project; provided,
however, that in no event shall Contractor use, or permit to be
used, any or all of such Contract Documents on other projects
without the Owner's and Engineer's prior written authorization_
3
ARTICLE II
THE WORK
2.1 The Contractor shall perform all of the Work required, implied or reasonably
inferable from this Contract.
2.2 The term "Work" shall mean whatever is done by or required of the Contractor to
perform and complete its duties under this Contract, including the following:
construction of the whole or a designated part of the Project; furnishing of any
required surety bonds and insurance; and the provision or furnishing of labor,
supervision, services, materials, supplies, equipment, fixtures, appliances,
facilities, tools, transportation, storage, power, permits and licenses required of the
Contractor, fuel, heat, light, cooling and all other utilities as required by this
Contract. The Work to be performed by the Contractor is generally describes as
follows;
ARTICLE III
CONTRACT TIME
3.1 TIME AND LIQUIDATED DAMAGES
3.1.1 The Contractor shall commence the Work /uv$tzcr- o-
/ /OGaca—
(here insert any applicable date or Notice to Proceed provisions)
and shall achieve‘ Substantial Completion of the Work no later than
//Ts , 199,8 The number of calendar days from the date on which the
Work is permitted to proceed, through the date set forth for Substantial
Completion, shall constitute the "Contract Time."
3.1.2 The Contractor shall pay the Owner the sum of $200.00 per day for each and
every calendar day of unexcused delay in achieving Substantial Completion
beyond the date set forth herein for Substantial 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 Substantial 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 believed
by the Owner to be adequate to recover liquidated damages applicable to
such delays. If and when the Contractor overcomes the delay in
achieving Substantial Completion, or any part thereof, for which
the Owner has withheld payment, the Owner shall promptly release to
the Contractor those funds withheld, but no longer applicable, as
licuidated damages. u x
3.2 SUBSTANTIAL COMPLETION
3.2.1. "Substantial Completion" shall mean that stage in the
progression of the Work when the Work is sufficiently complete in
accordance with this Contract that the Owner can enjoy beneficial
use or occupancy of the Work'and can utilize the Work for its
intended purpose.
3.3 TIME IS OF TEE ESSENCE
3.3.1 All limitations of time set forth in the Contract
Documents are of the essence of this Contract.
4 .1 THE CONTRACT PRICE
ARTICLE V
CONTRACT PRICE
4.1.1 The Owner shall pay, and the Contractor shall accept, as
full and complete payment for all of the Work reauired herein, the
fixed sum of $ 44,067.10 The sum set forth in
this Paragraph,4.1 shall constitute the Contract Price which shall
not be modified except by Change Order as provided in this
Contract.
ARTICLE V
PAYMENT OF THE CONTRACT PRICE
5.1 Sc ^n EUI,e. OF VALUES
5.1.1 Within ten (10) calendar days of the effective date
hereof, the Contractor shall submit to the Owner and to the
Engineer a Schedule of Values allocating the Contract Price to the
various portions of the Work. The Contractor's Schedule of Values
shall be prepared in such form, with such detail, and supported by
such data as the Engineer or the Owner may require to substantiate
its accuracy. The Contractor shall not imbalance its Schedule of
Values nor artificially inflate any element thereof. The violation
of this provision by the Contractor shall constitute a material
breach of this Contract. The Schedule of Values shall be used only
as a basis for the Contractor's Applications for Payment and shall
only constitute such basis after it has been acknowledged in
1 writing by the Engineer and the Owner.
5
' 5.2
PAYMENT PROCEDIIRE
5.2.1 The Owner shall pay the Contract Price to the Contractor
as provided below.
5.2.2 PROGRESS PAYMENTS - -- Based upon the Contractor's
Applications for Payment submitted to the Engineer and upon
Certificates for Payment subseouently issued to the Owner by the
Engineer, the Owner shall make progress payments to the Contractor
on account of the Contract Price.
5.2.3 On or before the 5th day of each month after
commencement of the Work, the Contractor shall submit an
Application for Payment for the period ending the last day
of the month to the Engineer in such form and manner, and with
such supporting data and content, as the Owner or the Engineer may
require. Therein, the Contractor may request payment for ninety -
five percent (95 %) of that portion of the Contract Price properly
allocable to Contract requirements properly provided, labor,
materials and equipment properly.incoroorated in the Work plus
ninety -five percent (95 %) of that portion of the Contract Price
properly allocable to materials or equipment properly stored on
site (or elsewhere if approved in advance in writing by the Owner)
for subsequent incorporation in the Work, less the total amount of
previous' payments received from the owner. Payment for stored
materials and equipment shall be conditioned upon the Contractor's
proof satisfactory to the Owner, that the Owner has title to such
materials and equipment and shall include proof of required -
Insurance. Such Application for Payment shall be 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, that the Work
has been properly installed or performed in full accordance with
this Contract, and that the Contractor knows of no reason why
payment should not be made as requested. Thereafter, the Engineer
will review the Application for Payment and may also review the
Work at the Project site or elsewhere to determine whether the
quantity and quality of the Work is as represented in the
Application for Payment and is as required by this Contract. The
Engineer shall determine and certify tc the Owner the amount
properly owing to the Contractor. The Owner shall make partial
payment on account of the Contract Price to the Contractor within
thirty (30) days following the Engineer's receipt of each
Application for Payment. The amount of each partial payment shall
be the amount certified for payment by the Engineer less such
amounts, if any, otherwisg Ayninq by the Contractor to the Owner or
which the Owner shall have the right to withhold as authorized by
this Contract. The Engineer's certification of the Contractor's
Application for Payment shall not preclude the Owner from the
exercise of any of its rights as set forth in Paragraph 5.3
hereinbelow.
6
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. The Contractor further warrants that upon
submittal of an Application for Payment,,,, all Work for which
payments have been received from the Owner "shall be free and clear
of liens, claims, security interest or other encumbrances in favor
of the Contractor of any other person or entity whatsoever.
5.2.5 The Contractor shall promptly pay each Subcontractor out
of the amount paid to the 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
Contractor has not paid a Subcontractor as herein provided, the
Owner shall have the right, but not the duty, to issue future
checks in payment to the Contractor of amounts otherwise due
hereunder naming the Contractor and such Subcontractor as joint
payees. Such joint check procedure, if emoloyed by the Owner,
shall create no rights in favor of any person or entity beyond the
right of the named payees to payment of the check and shall not be
deemed to commit the Owner to repeat the procedure in the future.
5.2.6 No progress payment, nor any use or occupancy of the
Project by the Owner, shall be interpreted to constitute an
acceptance of any Work not in strict accordance with this Contract.
5.3 WI sT�'Ec LD PAYMENT
5.3.1 The Owner may decline to' make payment, may withhold
funds, and, if necessary, may demand the return of some or all of
the amounts previously paid to the Contractor, to protect the Owner
from loss because of:
(a) defective Work not remedied by the Contractor
nor, in the opinion of the Owner, likely to be
remedied by the Contractor;
(b) claims of third parties against the Owner or
the Owner's property;
(c) failure by the Contractor to pay
Subcontractors or others in a prompt and
proper fashion;
(d) evidence that the balance of the Work cannot
be completed in accordance with the Contract
for the unpaid balance of the Contract Price;
(e) evidence that the Work will not be completed
in the time recuired for substantial or final
comple tion;
7
(f) persistent failure to carry out the Work in
accordance with the Contract;
(g) damage to the Owner or a third party to whom
the Owner is, or may be, liable.
In the event that the Owner makes written demand upon the
Contractor for amounts previously paid by the Owner as contemplated
in this Subparagraph 5.3.1, the Contractor shall promptly comply
with such demand.
5.4 UN FAILURE TO-PAY
5.4.1 If within ten (10) days after the date established herein
for payment to the Contractor by the Owner, the Owner, without
cause or basis hereunder, fails to pay the Contractor any amount
then due and payable to the Contractor, then the Contractor may
after seven (7) additional days' written notice to the owner and
the Engineer, and without prejudice'to any other available rights
or remedies it may have, stop the Work until payment of those
amounts due from the Owner have been received. Any payment not
made within ten (10) days after the date due shall bear interest at
the rate of six percent (6 per annum.
5.5. SUBSTANTIAL COMPLETION
5.5.1 When the Contractor believed that the Work is
substantially complete, the Contractor shall submit co the
Engineer a list of items to be completed or corrected. When the
Engineer on the basis of an inspection determines that the Work is
in fact substantially complete, it will prepare a Certificate of
Substantial Completion which shall establish the date of
Substantial Completion, shall state the responsibilities of the
Owner and the Contractor for Project security, maintenance, heat,
utilities, damage to the Work, and insurance, and shall fix the
time within which the Contractor shall cemmlete the items listed
herein. Guarantees required by the contract shall commence on the
date of Substantial Completion of the Work. The Certificate of
Substantial Completion shall be submitted to the Owner and the
Contractor for their written acceptance of the responsibilities
assigned to them in such certificate. Upon Substantial Completion
of the Work, and execution by both the Owner and the Contractor of
the Certificate of Substantial Completion, the Owner shall pay the
Contractor an amount sufficient to increase total payments to the
Contractor to one hundred percent (1001) of the contract price less
three hundred percent (300x), of the reasonable cost as determined
by the Owner and the Engineer for completing all incomplete Work,
correcting and bringing into conformance all defective and
nonconforming Work, and handling all unsettled claims.
8
5.6.3 The Owner shall make final payment of all sums due the
9
1
5.6 COMPLETION AND FINAL PAYMENT
5.6.1 When all of the Work is finally complete and the
Contractor is ready for a final inspection, it shall notify the
Owner and the Engineer thereof in writing. Thereupon, the
Engineer will make final inspection of the Work and, if the Work
is complete in full accordance with this Contract and this Contract
has been fully performed, they *Engineer will promptly issue a final
Certificate for Payment certifying to the Owner that the Project is
complete and the Contractor is entitled to the remainder of the
unpaid Contract Price, less any amount withheld pursuant to this
Contract. If the Engineer is unable to issue its final
Certificate for Payment and is required to repeat its final
inspection of the Work, the Contractor shall bear the cost of such
repeat final inspection(2) which cost may be deducted by the Owner
from the Contractor's final payment.
5.6.1.1 If the Contractor fails to achieve final completion
within the time fixed therefor by the Engineer in its Certificate
of Substantial Completion, the Contractor shall pav the Owner the
sum of $ 200.00 per day for'each and edg=y "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 licuidated damages representing an estimate of
delay damaces 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 unexcusably
delayed, the Owner shall be entitled, but not required, to withhold
from any amounts otherwise due the Contractor an amount then
believed by the Owner to be adequate to recover liquidated damaces
applicable to such delays. If and when the Contractor overcomes
the delay in achievinc final completion, or any part thereof, for
which the Owner has withheld payment, the Owner shall promptly
to the Contractor those funds withheld, but no lancer'
applicable, as licuidated damaces.
5.6.2 The Contractor shall not be entitled to final payment
unless and until its submits to the Engineer its affidavit that all
payrolls, invoices for materials and equipment, and other
liabilities connected with the Work for which the Owner, or the
Owner's property, miahc be responsible, have been fully paid or
otherwise satisfied; releases and waivers of lien from all
Subcontractors of the Contractor and of any and all other parties
required by the Engineer or the Owner; consent of Surety, if any,
to final payment. If any 111ird party fails or refuses to provide
a release of claim or waiver of lien as required by the Owner, the
Contractor shall furnish a bond satisfactory to the Owner to
discharge any such lien or indemnify the Owner from liability.
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
Contractor within ten (10) days of the Engineer's execution of a
final Certificate. for Payment.
5.6.4 Acceptance of final payment shall constitute a waiver of
all claims against the Owner by the Contractor except for those
claims previously made in writing against the Owner by the
Contractor, pending at the time of final payment, and identified in
writing by the Contractor as unsettled at the time of its request
for final payment.
ARTICLE VI
THE OWNER
6.1 INFORMATION, SERVICES AND THINGS REQUIRED FROM OWNER
6.1.1 The Owner shall furnish to the Contractor, at the time of
executing this Contract, any and all_written and tangible material
in its possession concerning conditions below ground at the site of
the Project Such written and tangible material is furnished to
the Contractor only in order to make complete disclosure of such
material and for no other purpose. By furnishing such material,
the Owner does not represent,warrant, or guarantee its accuracy
either in whale, in part, implicitly or explicitly, or at all, and
shall have no liability therefor. The Owner shall also furnish
surveys, legal limitations and utility locations (if known), and a
legal description of the Project site.
6.1.2 Excludinc permits and fees normally the responsibility of
the Contractor, the Owner shall obtain all approvals, easements,
and the like required for construction and shall pay for necessary
assessments and charges reauired for construction, use or occupancy
of permanent structures or for permanent chances in existing
facilities.
6.1.3 The Owner shall furnish the Contractor, free of charge,
5 copies of the Contract Documents for execution of the
Work. The Contractor will be charged, and shall pay the Owner,
$ _ _ per additional set of Contract Documents which it
may require.
6.2 RIGET TO STOP WORM
6.2.1 If the Contractor persistently fails or refuses to
perform the Work in accordance with this Contract, the Owner may
order the Contractor to-stop Work, or any described portion
thereof, until the cause for stoppage has been corrected, no longer
exists, or the Owner orders that Work be resumed. In such event,
the Contractor shall immediately obey such order.
10
6.3 ; . 'OWNER'S RIGET TO PERFORM WORK
6.3.1 If the Contractor's Work is stopped by the Owner under
Paragraph 6.2. and the Engineer fails within seven (7) days of
such stoppage to provide adequate, assurance to the Owner that the
cause of such stoppage will be'eliminated or corrected, then the
Owner may, without prejudice to any other rights or remedies the
Owner may have against the Contractor, proceed to carry out the
subject Work_ In such a situation, an appropriate Change Order
shall be issued deducting from the Contract Price the cost of
correcting the subject deficiencies, plus compensation for the
Engineer's additional services and expenses necessitated thereby,
if any. If the unpaid portion of the Contract Price is
insufficient to cover the amount due the Owner, the Contractor
shall pay the difference to the Owner.
6.A OWNER'S REPRESENTATIVE
6.4.1 The Owner's representative -for the administration of this
Contract shall be Owner's Director of Construction. Communication
with the Owner shall be through the Director of Construction.
However, any Chance Order xxxxxxxxxxxxxg' shall not be
binding upon Owner until agreed to by a majority of cO( X py X
SgaMOUVAX City Council or the Council's designee.
7. WARRANTY
ARTICLE VII
THE CONTRACTOR
11
7.1 The Contractor is again reminded of its continuing duty
set forth in Subparagraph 1.5.7. The Contractor shall perform no
part of the Work at any time without adequate Contract Documents
or, as appropriate, approved shop Drawings, Product Data or Samples
for such portion of the Work. If the Contractor performs any of
the Work knowing it involves a recognized error, inconsistency or
omission in the Contract Documents without such notice to the
Engineer, the Contractor shall bear reesponsibility for such
performance and shall bear the cost of correction.
7.2 The Contractor shall perform the Work strictly in
accordance with this Contract.
7.3 The Contractor shall supervise and direct the Work using
the Contractor's best skill, effort and attention. The Contractor
shall be responsible to the Owner for any and all acts or omissions
of the Contractor, its emol_oyees and others engaged in the Work on
behalf of the Contractor.
7.4.1 The Contractor warrants to the Owner that all labor
furnished to progress the Work under this Contract will be
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
' competent to perform the tasks undertaken, that the product of such
labor will yield only first -class results, that materials and
equipment furnished will be of good quality and new unless
I
otherwise permitted by this Contract, and that the Work will be of
good duality, free from faults and defects and in strict
conformance with this Contract. All Work not conforming to these
1 requirements may be considered defective.
7.5 The Contractor shall obtain. and pay for all permits, fees
I and licenses necessary and ordinary for the Work. The Contractor
shall comply with all lawful.requirements applicable to the Work
and shall give and maintain any all notices required by
applicable law pertaining to the Work.
I 7.6 . StPERVISION
I 7.6.1 The Contractor shall employ and maintain at the Project
site only competent supervisory personnel. Absent written
instruction from the Contractor to the- contrary, the Superintendent
' shall be deemed the Contractor's.authorized representative at the
site and shall be authorized to receive'and accept any and all
communications from the Owner or the Engineer.
I 7.6.2 Key supervisory personnel assigned by the Contractor to
this Project are as follows:
I Name Function
Paul Moore Branch Manager
1 Mark Binns Service Manager
1
So long as the individuals named above remain actively employed or
retained by the Contractor, they shall perform the functions
indicated next to their names unless the Owner agrees to the
contrary in writinc. In the event one or more individuals not
listed above :subsequently assume one or more of those functions
' listed above, the Contractor shall be bound by the provisions of
this Subparagraph 7.6.2 as though such individuals had been listed
above.
' 7.7 The Contractor, within fifteen (15) days of commencing
the Work, shall submit to the Owner and the Engineer for their
1 information the Contractor's schedule for completing the Work. The
Contractor's schedule shall be revised no less frequently than
12
monthly .(unless the parties otherwise agree in writing) and shall
be revised to reflect conditions encountered from time to time and
shall be related to the entire Project. Each such revision shall
be furnished to the Owner and the Engineer. Failure by the
Contractor to strictly comply with the provision of this Paragraph
7.7 shall constitute's a material breach of this Contract.
7.8 The Contractor shall maintain at the site,
for the benefit of the Owner and the Engineer, one record copy of
this Contract marked to record on a current basis changes,
selections and modifications made during construction.
Additionally, the Contractor shall maintain at the site for the
Owner and Engineer for approved Shop Drawings, Product Data,
Samples and other similar recuired submittals. Upon final
completion of the Work, all of these record documents shall be
delivered to the Owner.
7.9 SEOP DRAWINGS, PRODUCT DATA AND SAMPLES
7.9.1 Shop Drawings, Product Data, Samples and other submittals
from the Contractor do not constitute„Contract Documents:- Their
purpose is merely to demonstrate the manner in which the Contractor
intends to implement the Work in conformance with information
received from the Contract Documents.
7.9.2 The Contractor shall not perform any portion_ of the Work
requiring submittal and review of Shop Drawings, Product Data or
Samples unless and until such submittal shall have been approved by
the Engineer. Approval by the Engineer, however, shall not be
evidence that the Work installed pursuant thereto conforms with the
requirements of this Contract. -
7.10 CLEANING 1=t. SITE AND TH M: PROJECT
7.10.1 The Contractor shall keep the site reasonably clean
during performance of the Work. upon final completion_ of the Work,
the Contractor shall clean the site and the Project and remove all
waste, together with all of the Contractor's property therefrom.
7.11 ACCESS TO WORM
7 .11.1 The Owner and the Engineer shall have access to the Work
at all times from commencement of the Work through final
completion. The Contractor shall take whatever ste necessary to
provide access when requested.
7.12 111DE LT-r
"Contractor agrees to and shall indemnify and hold harmless Owner, its officers, agents,
and employees, from and against any and all claims, losses, damages, causes of action,
suits and liability of every kind, including all expenses of litigation, court costs, and
attomey's fees for injury to or death to any person, or for damages to any property, arising
out of or in connection with the work done by the Contractor under this Agreement,
regardless of whether such injuries, death, or damages are caused in whole or in part by
the negligence of the Contractor or the Owner."
'1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1 7.12.2. In claims against any'person or entity indemnified
under this Paragraph 7.12 by an employee of the Contractor, a
Subcontractor, anyone directly or indirectly employed by them or
anyone for whose acts they may be liable, the indemnification
obligation under this Paragraph 7.12 shall not be limited by a'
limitation on amount or type of damages, compensation or benefits
payable by or for the Contractor or a Subcontractor under
workers' compensation acts, disability benefit acts or other
employee benefit acts.
1
ii 8.1.1 The Engineer for this project is TEXAS ENERGY
II
ENGINEERING SERVICES, INC., 1301 CAPITAL OF TEXAS HIGHWAY, SUITE:.
B -127, AUSTIN, TEXAS 78746. In the event the Owner should find
' it necessary or convenient to replace the Engineer, the owner
shall retain a replacement Engineer and the status of the
replacement Engineer shall be that of the former Engineer.
1 8.2 ENGINEER'S ADMINISTRATION
8.2.1 The Engineer, unless otherwise directed by the Owner in
I writing, will perform those duties and discharge those
responsibilities allocated to the Engineer as set forth in this
Contract. The Engineer shall be the Owner's representative from
I the effective date of this Contract until final payment has been
made. The Engineer shall be authorized to act on behalf of the
Owner only to the extent provided in this Contract.
8.2.2 The Owner and the Contractor shall communicate with
each other in the first instance through the Engineer.
I 8.2.3 The Engineer shall be the initial interpreter of the
requirements of the drawings and specifications and the judge of
the performance thereunder by the Contractor. The Engineer shall
render written or graphic interpretations necessary for the
' proper.
1
1
ARTICLE VIII
CONTRACT ADMINISTRATION
1
8.1 TEE ENGINEER
14
execution or progress of the Work with reasonable promptness on
recuest of the Contractor.
8.2.4 The Engineer will review the Contractor's Applications
for Payment and will certify to the Owner for payment to the
Engineer those amounts then due the Contractor as provided in
this Contract.
8.2.5 The Engineer shall have authority to reject Work which
is defective or does not conform to the reouirements of this
Contract. If the Engineer deems it necessary or advisable, the
Engineer shall have authority to•reouire additional inspection or
testing of the Work for compliance with Contract requirements.
8.2.5 The Engineer will review and approve, or take other
appropriate action as necessary, concerning the Contractor's
submittals including Shop Drawings, Product Data and Samples. Such
review, approval or other action shall be for the sole purpose of
determining conformance with the design concept and information
given through the Contract Documents.
8.2.7 The Engineer will prepare Change Orders and may
authorize minor changes in the Work by field Order as provided
elsewhere herein.
8.2.8 The Engineer shall, upon written recuest from the
Contractor, conduct inspections to determine the date of
Substantial Completion and the date of final completion, will
receive and forward to the Owner for the Owner's review and records
written warranties and related documents rewired by this Contract
and will issue a final Certificate for Payment upon compliance with
the recuirements of this Contract.
8.2.9 The Engineer's decisions in matters relating to
aesthetic effect shall be final if consistent with the intent of
this Contract.
8.3 CLAIMS BY THE CONTRACTOP.
8.3.1 All Contractor claims shall be initiated by written
notice and claim to the owner and the Engineer. Such written
notice and claim must be furnished within seven (7) days after
occurrence of the event, or the first appearance of the condition,
giving rise to the claim.
8.3.2 Pending final resolution of any claim of the Contractor,
the Contractor shall diligently proceed with performance of this
Contract and the Owner shall continue to make payments to the
Contractor in accordance with this Contract. The resolution of any
claim under this Paragraph 8.3 shall be reflected by a Change Order
executed by the Owner, the Engineer and the Contractor.
15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
8.3.3 CLAIMS FOR CONCEALED AND UNKNOWN CONDITIONS - -- Should .
concealed and unknown conditions encountered in the performance of
the Work (a) below the surface of the ground or (b) in an existing
structure be at variance with the conditions indicated by this
Contract, or should unknown conditions of an unusual nature
differing materially from those ordinarily encountered in the area
and generally recognized as inherent in Work of the character
provided for in this Contract, be encountered, the Contract Price
shall be equitably adjusted by Change Order upon the written notice
and claim by either party made within seven (7) days after the
first observance of the condition. As a condition precedent to the
Owner having any liability to the Contractor for concealed or
unknown conditions, the Contractor must give the Owner and the
Engineer written notice of, and an opportunity to observe, the
condition prior to disturbing it. The failure by the Contractor to
make the written notice and claim as provided in this Subparagraph
shall constitute a waiver by the Contractor of any claim arising
out of or relating to such concealed or unknown condition.
8.3.4 CLAIMS FOR ADDITIONAL COSTS - -- If the Contractor wishes
to make a claim for an increase in the Contract Price, as a
condition precedent to any liability of the Owner therefor, the
Contractor shall give the Engineer written notice of such claim
within seven (7) days after the occurrence of the event, or the
first appearance of the condition, giving rise to such claim. Such
notice shall be given by the Engineer before proceeding to
execute any additional or changed Work. The failure by the
Contractor to give such notice and to give much notice prior to
executing the Work shall constitute a waiver of any claim for'"
additional compensation.
8.3.4.1 In connection with any claim by the Contractor against
the Owner for compensation in excess of the Contract Price, any
liability of the Owner for the Contractor's costs shall be strictly
limited to direct costs incurred by the Contractor and shall in no
event include indirect costs or consequential damaces of the
Contractor. The Owner shall not be liable to the Contractor for
claims of third parties, including Subcontractors, unless and until
liability of the Contractor has been established therefor in a
court of competent jurisdiction.
8.3.5 CLAIMS FOR ADDITIONAL TIME -- If the Contractor is
delayed in progressing any task which at the time of the delay is
then critical or which during the delay becomes critical, as the
sole result of any act or neglect to act by the Owner or someone
acting in the Owner's behalf, or by changes ordered in the Work,
unusual delay in transpert7ation, unusually adverse weather
conditions not reasonably anticipatable, fire or any causes beyond
the Contractor's control, then the data for achieving Substantial
Completion of the Work shall be extended upon the written notice
and claim of the Engineer to the Owner and the Engineer, for
such reasonable time as the Engineer may determine. Any notice
16
and for an extension of time by the Contractor shall be made
not more than seven (7) days after the occurrence of the event or
the first appearance of the condition giving rise to the claim and
shall set forth in detail the Contractor's basis for requiring
additional time in which to complete the Project. In the event the
delay to the Contractor is a continuing one, only one notice and
claim for additional time shall be necessary. If the Contractor
fails to make such claim as required in this Subparagraph, any
claim for an extension of time ,shall .be ,waived.
8.4 FIELD ORDERS
SUBCONTRACTORS
9.2 AWARD OF SUBCONTRACT
8.4.1 The Engineer shall have authority to order minor changes
in the Work not involving a change in the Contract Price or in
Contract Time and not inconsistent with the intent of the Contract.
Such changes shall be effected by field Order and shall be binding
upon the Contractor. The Contractor shall carry out such Field
Orders promptly.
ARTICLE IX
9.1 DEFINITION
9.1.1 A Subcontractor is an entity which has a direct contract
with the Contractor to per form a portion of the Work.
9.2.1 Uoon execution of the Contract, the Contractor shall
furnish the Owner, in writing, the names of persons or entities
proposed by the Contractor to act as a Subcontractor on the
Project. The Owner shall promptly reply to the Contractor, in
writing,:statina any objections the Owner may have to such proposed.
Subcontractor. The Contractor shall not enter into a subcontract
with a proposed subcontractor with reference to whom the Owner has
made timely objection. The Contractor shall not be required to
subcontract with any party to whom the Contractor has objection.
9.2.2 All subcontracts shall afford the Contractor rights
against the Subcontractor which correspond to those rights afforded
to the Owner against the Contractor herein, including those rights
afforded to the Owner by Subparagraph 12.2.1 below.
_ __..ARTICLE X
CHANGES IN THE WORK
10.1 CHANGES PERMITTED
10.1.1 Changes in the Work within the general scope of this
17
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
18
Contract, consisting of additions, deletions, revisions, or any
combination thereof, may be ordered without invalidating this
Contract, by Chance Order or by Field Order.
10.1.2 Changes in the Work shall be performed under applicable
provisions of this Contract and the Contractor shall proceed
promptly with such changes.
10.2 CHANGE ORDER DEFINED
10.2.1 Change Order shall mean a written order to the Contractor
executed by the Owner and the Engineer, issued after execution of
this Contract, authorizing and directing a change in the Work or an
adjustment in the Contract Price or the Contract Time, or any
combination thereof. The Contract Price and the Contract Time may
be changed only by Change Order.
10.3 CHANGES IN THE CONTRACT PRICE
10.3.1 Any change in the Contract Price resulting from a Change
Order shall be determined as follows: (a) by mutual agreement
between the Owner and the Contractor as evidenced by (1) the chance
in the Contract Price being set forth in the Change Order, (2) such
change in the Contract Price, together with any conditions or
requirements related thereto, being initialed by both parties and
(3) the Contractor's execution of the Change Order, or (b) if no
mutual agreement occurs between the Owner and the Contractor, then,
as provided in Subparagraph 10.3.2 below. --
10.3.2 If no mutual agreement occurs between the Owner and the
Contractor as contemplated in Subnaraaraph 10.3.1 above, the
in the Contract Price, if any, shall then be determined by the
Engineer on the basis of the reasonable expenditures or savings of
those performine, deleting or revising the Work attributable to the
change, including, in the case of an increase or decrease in'the -
Contract Price, a reasonable allowance for direct job site overhead
and profit. In such case, the Contractor shall present, in such
form and with such content as the Owner or the Engineer requires,
an itemized accounting of such expenditures or savings, plus
appropriate supporting data for inclusion in a Change Order.
Reasonable expenditures or savings shall be limited to the
followings: reasonable costs of materials, supplies, or equipment
including delivery costs, reasonable costs of labor, including
social security, old age and unemployment insurance, fringe
benefits required by agreement or custom, and workers' compensation
insurance, reasonable rental,. costs of machinery and equipment
exclusive of hand tools whether rented from the Contractor or
others, reasonable costs of premiums for all bonds and insurance,
permit fees, and sales, use or other taxes related to the Work, and
reasonable cast of direct supervision and job site field office
overhead directly attributable to the change. In no event shall
any expenditure or savings associated with the Contractor's home.
10.4 MINOR CE:3NGES
office.or•other non - job -site overhead expense be included in any
change in the Contract Price. Pending final determination of
reasonable expenditures or savings to the Owner, payments on
account shall be made to the Contractor on the Engineer's
Certificate for Payment.
10.3.3 If unit prices are provided in the Contract, and if the
quantities contemplated are so changed in a proposed Chance Order
that application of such unit prices to the quantities of Work
proposed will cause substantial ineauity to the Owner or to the
Contractor , the applicable unit prices shall be equitably
adjusted. -
10.4.1 The Engineer shall have authority to order minor changes
in the Work not involving a change in the Contract Price or an
extension of the Contract Time and not inconsistent with the intent
of this Contract. Such minor chances . shall be made by written
Field Order, and shall be binding upo the Owner and the
_Contractor. The Contractor shall promptly carry out such written
Field Orders.
10.5 EFFECT OF EXECUTED CHANGE ORDER
10.5.1 The execution of a Chanae Order by the Contractor shall
constitute conclusive evidence of the Contractor's agreement to the
ordered changes in the Work, this Contract as thus amended, the
Contract Price and the Contract Time. The Contractor, by executing
the Change Order, waives and forever releases any claim against the
Owner for additional time or compensation for matters relating to
or arising out of or resulting from the Work included within or
affected by the executed Chance Order.
10.6 NOTICE TO SURETY: CONSENT
10.6.1 The Contractor shall notify and obtain the consent and
approval of the Contractor's surety with reference to all Change
Orders if such notice, consent or approval are required by the
Contractor's surety or by law. The Contractor's execution_ of the
Chance Order shall constitute the Contractor's warranty to the
Owner that the surety has been notified of and consents to such
Chance Order and the surety shall be conclusively deemed to have
been notified of such Chance Order and to have expressly consented
thereto.
11.1.1
ARTICLE XI
UNCOVERING'AND CORRECTING WORK
UNCOVERING WORK
If any of the Work is covered contrary to the Engineer's
19
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
reauest or to any provision of this Contract, it shall, if
required by the Engineer or the Owner, be uncovered for the
Engineer's inspection and shall be properly replaced at the
Contractor's expense without change in the Contract Time.
11.1.2 If any of the Work is covered in a manner not
inconsistent with Subparagraph 11.1.1 above, it shall, if required
by the Engineer or Owner, be uncovered for the Engineer's
inspection. If such Work conforms strictly with this Contract,
costs of uncovering and proper replacement shall by Change Order be
charged to the owner. If such Work does not strictly conform with
this Contract, the Contractor'shall pay the costs of uncovering and
proper replacement.
11.2 CORRECTING WORK
11.2.1 The Contractor shall immediately proceed to correct Work
rejected by the Engineer as defective or failing to conform to
this Contract. The Contractor shall pay all costs and expenses
associated with correcting such rejected Work, including any
additional testing and inspections, and reimbursement to the Owner
for the Contractor'-s services and expenses made necessary thereby.
11.2.2 If within one (1) year after Substantial Completion of
the Work any of the Work is found to be defective or not in
accordance with this Contract, the Contractor shall correct it
promptly upon receipt of written notice from the Owner. This
obligation shall survive final payment by the Owner and termination
of this contract. With respect to Work first performed and
completed after Substantial Completion, this one year obligation to
specifically correct defective and nonconforming Work shall be
extended by the period of time which elapses between Substantial
Completion and completion of the subject Work.
11.2.3 Nothinc contained in this Paragraph 11.2 shall establish
any period of limitation with respect to ocher oblications which
the Contractor has under this Contract. Establishment of the one
year time period in Subparagraph 11.2.2 relates only to the duty of
the Contractor to specifically correct the Work.
11.3 OWNER MAY ACCEPT DEFECTIVE OR NONCONFORMING WORK
11.3.1 If the Owner chooses to accept defective or nonconformina
Work, the Owner may do so. In such event, the Contract Price shall
be reduced by the greater of (a) the reasonable cost of removing
and correcting the defective or nonconforming Work, and (b) the
difference between the fair-Market value of the Project as
constructed and the fair market value of the Project had it not
been constructed in such a manner as to include defective or
nonconforming Work. If the remaining portion of the unpaid
Contract Price, if any, is insufficient to compensate the Owner for
its acceptance of defective or nonconforming Work, the Contractor
20
ARTICLE XII
CONTRACT TERMINATION
12.1 TERMINATION BY 2'1t CONTRACTOR
12.1.1 If the Work is stomped for a period of ninety (90) days
by an order of any court or other.public authority, or as a result
of an act of the Government, through no fault of the Contractor or
any person or entity working directly or indirectly for the
Contractor, the Contractor may, upon ten (10) days' written notice
to the Owner and the Engineer, terminate performance under this
Contract and recover from the Owner payment for the actual
reasonable expenditures of the Contractor (as limited in
Subparagraph 10.3.2 above) for all Work executed and for materials,
equipment, tools, construction ecuipmEht and machinery actually
purchased or rented solely for the Work, less any salvage value of
'env such items. "
12.1.2 If the Owner shall persistently or repeatedly fail to
Perform any material obligation to the Contractor for a period of
fifteen (15) days after receiving written notice from the
Contractor of its intent to terminate hereunder, the Contractor may
terminate performance under this Contract by written notice to the
Engineer and the Owner. In such event, the Contractor shall be
entitled to recover from the Owner as though the Owner had
terminated the Contractor's performance under this Contract for
convenience pursuant to Subparagraph 12.2.1- hereunder.
12.2 . TERMINATION BY TEE OWNER
12.2.1 FOR CONVENIENCE
74'
shall, upon written demand from the Owner, pay the Owner such
remaining compensation for accepting defective or nonconforming
Work.
12.2.1.1 The Owner may for any reason whatsoever terminate
performance under this Contract by the Contractor for convenience.
The Owner shall give written notice of such termination to the
Contractor specifying when termination becomes effective.
12.2.1.2 The Contractor shall incur no further obligations in
connection with the Work and the Contractor shall stop Work when
such termination becomes effective. The Contractor shall also
terminate outstanding orders and subcontracts. The Contractor
shall settle the liabilitie'b and claims 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 terminated orders or subcontract to the Owner or its
designee.
21
1
: 1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
�1
1
1
1
1
1
1
1
1
1
1
1
II 12.2.1.3 The Contractor shall transfer title and deliver to the
Owner such completed or partially completed Work and materials,
equipment, parts, fixtures, information and Contract rights as the
Contractor has.
12.2.1.4 (a) The Contractor shall submit a termination
claim to the Owner and the Engineer
specifying the amounts due because of the
termination for convenience together with
costs, pricing or other data required by the
Engineer. If the Contractor fails to file a
termination claim within one (1) year from the
effective date of termination, the Owner shall
pay the Contractor an amount derived in
accordance with subparagraph (c) below.
(b) The Owner and the Contractor may agree to the
compensation,if any, due to the Contractor
hereunder. .
(c) Absent agreement to the amount due to the
Contractor, the Owner shall pay the Contractor
the following amounts:
(i) Contract prices for labor,
materials, equipment and other
service accepted under this
Contract;
(ii) Reasonable costs incurred in
preparing to perform and in
performing the terminated portion of
the Work, and in terminating the
Contractor's performance, plus a
fair and reasonable allowance for
overhead and profit thereon' (such
profit shall not include anticipated
profit or consequential damages);
provided, however, that if it
appears that the Contractor would
have not profited or would have
sustained a loss if the entire
Contract would have been completed,
no profit shall be allowed or
included and the amount of
compensation shall be reduced to
ef1.ect the antici_ated rate of
loss, it any;
(iii) Reasonable costs of settling and
paying claims arising out of the
termination of subcontracts or
22
orders pursuant to Subparagraph
12.2.1.2 of this Paragraph. These
costs shall not include amounts paid
in accordance with other provision
hereof.
The total sum to be paid the Contractor under this
Subparagraph 12.1.1. shall not exceed the total Contract Price, as
properly adjusted, reduced by the amount of, payments otherwise
'lade, and shall in no event include duplication of payment.
12.2.2 FOR CSUSE
12.2.2.1 If the Contractor persistently or repeatedly refuses or
fails to prosecute the Work in a timely manner, supply enough
properly skilled workers, supervisory personnel or proper equipment
or materials, or if it fails to make prompt payment to
Subcontractors or for materials or labor, or persistently
disregards laws, ordinances, rules, regulations or orders of any
public authority having jurisdiction, or otherwise is guilty of a
substantial violation_ of a material provision of this Contract,
then the Owner may by written notice to the Contractor, "without"
prejudice to any other right or remedy, terminate the employment of
the Contractor and take possession of the site and of all
materials, ecu.ipment, tools, construction equipment and machinery
thereon owned by the Contractor and may finish the Work by whatever
methods it may deem expedient. In such case, the Contractor shall
not he entitled to receive any further payment until the Work is
finished.
12.2.2.2 If the unpaid balance of the Contract Price exceeds the
cost of finishing the Work, including compensation for the
Engineer's additional services and expenses made necessary thereby,
such excess shall be paid to the Contractor. If such cost exceeds
the unpaid balance, the Contractor shall pay the difference to the
Owner. This obligation for payment'shall survive the termination
of the Contract.
12.2.2.3 In the event the employment of the Contractor is
t =rm =d by the Owner for cause pursuant to Subparagraph 12.2.2
and it is subseauently determined by a Court of competent
jurisdiction that such termination was without cause, such
termination shall thereupon be deemed a Termination for Convenience
under Subparagraph 12.2.1 and the provisions of Subparagraph 12.2.1
shall apply.
23
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
ARTICLE XIII
INSURANCE
1 13.1 CONTRACTOR'S LIABILITY INSURANCE
13.1.1 The Contractor shall purchase and maintain insurance for
I protection from the claims set forth below which may arise out of
or result from the Contractor's operations under the Contract,
whether such operations be by the Contractor or by any
Subcontractor, or by anyone directly or indirectly emm toyed by any
of the, or by anyone for whose acts any of them may be liable.
(1) Claims under workers' or workmen's compensation,
disability benefit and other similar employee
benefit acts;
1
1
1
1
1
1
1
1
24
(2) Claims for damages because of bodily injury,
occupational sickness or disease, or death of the
Contractor's employees?'
(3) Claims for damaces because of bodily injury,
si c3c or disease, or death of any person other
than the Contractor's employees;
(4) Claims for damaces insured by usual personal injury
liability coverace which are sustained (1) by any
person as a result of an offense directly or
indirectly related to the employment of such person
by the Contractor, or (2) by any other person;
(5) Claims for damages, other than to the Work itself,
because of injury to or destruction of tancible
property, including loss of use resulting
therefrom; and
(6) Claims for damaces because of bodily injury or
death of any person or property damage arising out
of the ownership, maintenance or use of any motor
vehicle.
(7) Claims involving contractual liability applicable
to the Contractor's obligations under Paragraph
7.12.
1 Such insurance shall be purchased from a company or
companies lawfully authorized do business in the State of Texas.
This insurance shall remain in force during the term of the
Project • The City of Round Rock shall be named as an additional Hi urc�
13.1.2 The insurance reouired by Subparagraph 13.1.1 shall be
'
written for:
Refer to Exhibit "B"
General Aggregate
Prod /Comp -Op Aggregate
Pers /Advert Injury
Each Occurrence
Fire Damage
Medical Expense
• (1) WORKERS' COMPENSATION AND EMPLOYERS LIABILITY
Workers' Compensation - Statutory
Texas
(2) COMMERCIAL GENERAL LIABILITY
Coverage shall include
Premises - Operations
Independent Contractors
Products - Completed Operations
Contractual Liability
Explosion, Collapse,
E. underground Hazards
Bread Form Property Damage
(3) COMPREF NSIVE AUTOMOBILE LIABILITY
$ 1,000,000
1,000,000
500,000
500,000
50,000
5,000
Owned, Non- Owned, and Hired
Combined Single Limit $ 1,000,000
(4) EXCESS LIABILITY (UMBRELLA FORM)
Project Cost
UP to $2,
$2,500,000 - 54,999,999
$5,000,000 - $7,499,999
$7,500,000 and over
3.1.3 Duplicate certifizat=s of insurance acceptable to the
owner shall be submitted to the Owner prior to commencement of the
rork. These certificates shall contain a provision that coverages
•.f forded under the policies will not be cancelled until at least
shirty days' prior written notice has been given to the Owner.
25
Coverage
Reauired
$1,000,000
$2,000,000
$3,000,000
$4,000,000
1
1
: 1
1
26
13.2 PROPERTY INSURANCE
1 13.2.1 Until the Work is completed and accented by the Owner,
the Contractor shall purchase and maintain "builder's risk"
I Property insurance upon the entire work at the site to the full
insurable value thereof. If not covered under the all risk
insurance or otherwise provided in the Contract Documents, the
Contractor shall effect and maintain similar property insurance on
I
portions of the Work stored off the site or in transit when such
portions of the work are to be included in an Application for
I Payment. This insurance shall include the interest of the Owner,
the Contractor, subcontractors -and sub - subcontractors in the Work
and shall insure against the perils of fire and extended coverage
and shall. include "all- risk" insurance for physical loss or damage,
1
II including, without duplication of coverage, theft, vandalism and
malicious mischief, and shall contain an installation floater.
This all -risk policy shall be written incorporating Texas Form a21
I (Actual Completed Value Form) and Form #77 (General Change
Endorsement Incorporating the Following Language: "Permission is
given for the project insured hereunder- to become occupied, the
insurance remaining in full force'and effect until such time as the
I
work has been accepted by the Owner. "). Such insurance shall be
evidenced by the kind or policy which does not have to be adjusted
or reported upon periodically, but provides constant i nsurance at
1 full 100°- of all insurable values as they are created during
construction by perf ormance of the General contract. The
certificate of insurance must include the names of the insured
Contractor and the Owner.
1
13.2.2 The Owner and the Contractor waive all ricr_ts against (i)
each cther and the Subcontractors, Sub - subcontractors, acents and
1
employees of each other, and (2) the Engineer and Separate
contractors, if any and their subcontractors, sub- subcontractors,
agents and employees, for damage caused by fire or other perils to
I the extent covered by insurance obtained pursuant to this Paragraph
13 .2 or any other property insurance applicable to the Wcrk, except
such rights as they may have to the proceeds of such insurance held
0 by the Owner as trustee. The foregoing waiver afforded the
Engineer, its agents and employees shall not extend to the
liability imposed by Paragraph 7.12. The Owner or the Contractor,
as appropriate, shall require of the Engineer, separate
I
contractors, Subcontractors and Sub - subcontractors by appropriate
agreements, written where legally required for validity, similar
waivers each in favor of all other parties enumerated in this
1 Subparagraph 13.2.2.
13.2.3 Loss under such.builder's risk all -risk insurance shall
I be made payable jointly to the Owner and to the General Contractor
by name. The Contractor shall pay each Subcontractor a just share
of any insurance monies received by the Contractor, and by
appropriate agreement, written where legally required for validity,
shall require each Subcontractor to make payments to their Sub
cont=aotors in similar manner.
13.2.4 In the case of loss under the risk covered, and of
collection by the insured, the Owner shall act as trustees for the
Contractor as his interests may appear.' The original builder's
'risk all -risk insurance policy certificate shall be delivered to
and left in the safekeeping of the Owner, a copy being retained by
the General Contractor (and certificates or copies being furnished
the separate subcontractors, if any)
13.3. If for any reason the Contractor fails to maintain any
Insurance coverage required of - him under this Article 13, the
Owner, at the Owner's option, may purchase and maintain comparable
insurance to that required by this Article 13, and charge the cost
thereof against the Contractor by offsetting such cost against anv
sum due the Contractor under this agreement, and such charge shall
be made without the need for the execution of a change order.
,13.4 WAGE RATES
14.1
14.1.1
where the
14.2
Refer to Exhibit "A"
GOVERNING LAW
SUCCESSORS AND ASSIGNS
ARTICLE XIV
MTSCELLANECUS
The Contract shall be governed by the law of the place
Project is located
14.2.1 The Owner and Contractor bind themselves, their
successors, assigns and legal. representatives, to the ocher party
hereto and to successors, assigns and legal representatives of such
ocher party, in respect to covenants, agreements and obligations
contained in this Contractor. The Contractor shall not assign this
Contract without written consent of the Owner.
27
14.3 SURETY BONDS
OWNER
e /T� aF /outJD
(Typ d Name)
2,�t "/
(Sicnazu
Roca,
e w-PePPc ei /) yo
(Printed Name, Title
and address)
(Zi . mil-/n)sreT
/I24411/ ow
(Date of Ex
26
'14.3.1 The Contractor shall furnish separate performance and
Payment bonds to the Owner. Each bond shall set forth a penal sum
in an amount not less than the Contract Price. Each bond furnished
by the Contractor shall incorporate by reference the terms of this
Contract as fully as though they were set forth verbatim in such
bands. In the event the Contract Price is adjusted by Chance Order
executed by the Contractor, the penal sum of both the performance
bond and the payment bond shall be deemed increased by like amount.
The perf ormance and payment bonds furnished by the Contractor shall
be in a form reeuired by Article 5160, V.A.T.S., and shall be
executed by a .surety, sureties or reinsurers authorized and
licensed to do business in Texas.
CONTRACTOR
Amtech Lighting Services
Paul Moore, Branch Manager
15241 Tradesman San Antonio, TX 78249
(Printed Name, Title
and Address)
/- 2-L- ? 0 ,
(Date of Execution)
-a c a WIRA,0,_
Seal & Signature of
Wg racretary
(If Corporation)