18-06. Attachment E - Uniform General Conditions for City of Amarillo Civil Construction Contracts.pdf

Uniform General Conditions for

City of Amarillo Civil Construction Contracts Revised 1/14/2020

Table of Contents

Article 1. Definitions………………………………………………………………… 2

Article 2. Laws Governing Construction…………………………………………… 5

Article 3. General Responsibilities of Owner & Contractor………………………… 8

Article 4. Bonds & Insurance……………………………………………………….. 22

Article 5. Contract Documents……………………………………………………… 30

Article 6. Construction Safety……………………………………………………… 38

Article 7. Quality Control……………………………………………………………40

Article 8. Project Scheduling Requirements…………………………………………46

Article 9. Payments…………………………………………………………………. 53

Article 10. Changes…………………………………………………………………. 57

Article 11. Project Completion and Acceptance……………………………………...63

Article 12. Warranty and Guarantee……………………………………….…………67

Article 13. Suspension and Termination……………………………………..……

Article 14. Claims and Dispute Resolution………………………………..………….73

Article 15. Miscellaneous……………………………………………………..……

Article 16. Business Ethics…………………………………………………………… 77

Uniform General Conditions for City of Amarillo Civil Construction Contracts

Article 1. Definitions

Unless the context clearly requires another meaning, the following terms have the meaning assigned herein.

1.1 Engineer or Owner’s Engineer means a person licensed as a professional engineer pursuant Tex. Occ. Code Ann., Chapter 1001 and/or a firm employed by Owner or Design-Build Contractor to provide professional engineering services and to exercise overall responsibility for the design of a Project or a significant portion thereof, and to perform the contract administration responsibilities set forth in the contract. Certain portions of the administration of the contract will be performed by the Engineer. The Engineer will be treated as the Owner’s Representative to the extent set out in the Contract Documents. The Engineer shall not have the authority to act on behalf of Owner unless such authority is expressly granted in the Contract Documents, not shall such authority be implied from any act or representation of the Engineer.

1.2 Change Order means a written modification of the contract between the Owner and Contractor, signed by the Owner, the Contractor and the Engineer.

1.3 Change Order Proposal means a document generated by the Contractor.

1.4 Change Order Request (COR) means a document, which informs the Contractor of a proposed change in the Work, and appropriately describes or otherwise documents such change.

1.5 Close-out Documents means the product brochures, product/equipment maintenance and operations instructions, manuals, and other documents/warranties, as-built record documents, affidavits of payment, releases of liens and claims, maintenance bonds (if required) and as may be further defined, identified, and required by the Contract Documents.

1.6 Contract means the entire and integrated agreement between the parties hereto and supersedes prior negations, representations or agreement, either written or oral. The Contract may be amended or modified only by a written modification.

The Contract Documents shall not be construed to create a contractual relationship:

1.6.1 between the Engineer and the Contractor

1.6.2 between the Owner and a Subcontractor or Subcontractors or

1.6.3 between any persons or entities other than the Owner and Contractor

The Engineer shall, however, be entitled to performance and enforcement of obligations of the Contractor under the Contract intended to facilitate performance of the Engineer’s duties.

1.7 Contract Date is the date when the agreement between the Owner and the

Contractor becomes effective.

1.8 Contract Documents means those documents identified as a component of the agreement (Contract) between the Owner and the Contractor. These may include, but are not limited to, Drawings, Specifications, uniform general, supplementary and Special Conditions, and all pre-bid and/or pre-proposal addenda. Special requirements (a modifier to standard City Specifications) and Bid Proposal as a component of the Contract Documents.

1.9 Contractor means the individual, corporation, company, partnership, firm or other entity contracted to perform the Work, regardless of the type of construction contract used, so that the term as used herein includes a Construction Manager-at-

Risk or a Design-Build firm as well as a General or Prime Contractor. The

Contract Documents refer to Contractor as if singular in number.

1.10 Contract Sum means the total compensation payable to the Contractor for completion of the Work in accordance with the terms of the Contract.

1.11 Contract Time means the period between the start date identified in the notice to proceed for construction and the estimated completion date or Working Days identified in the notice to proceed or as subsequently amended by change order.

1.12 Drawings mean the product of the Engineer which graphically depicts the Work.

1.13 Final Completion means the date determined and verified by the Engineer and the

Owner of which the Work is fully and satisfactorily complete in accordance with the Contract.

1.14 Owner means the City of Amarillo.

1.15 Owner’s Designated Representative (ODR) means the individual assigned by the

Owner to act on its behalf, and to undertake certain activities as specifically outlined in the Contract. The ODR is the only party authorized to interpret plans and make changes in the scope of Work that does not affect time or money.

1.16 Project the completed job as described in the attached plans and Specifications.

1.17 Project Site means the geographical area of the location of the Work.

1.18 Samples mean representative physical examples of materials, equipment or workmanship, used to confirm compliance with requirements and/or to establish standards for use in execution of the Work.

1.19 Bid Proposal means a reasonable balanced and detailed breakdown of the cost of the labor by category, cost of materials, and equipment, if any, necessary to accomplish the Work described in the Contract Documents and submitted by the

Contractor for approval by the Owner and/or the Engineer.

1.20 Shop Drawings means the Drawings, diagrams, illustrations, schedules, performance charts, brochures and other data prepared by the Contractor or its agents, which detail a portion of the Work.

1.21 Special Conditions means the documents containing terms and conditions, which may be unique to the Project. Special Conditions are a part of the Contract

Documents and have precedence over the Uniform General Conditions.

1.22 Specifications mean the written product of the Engineer that establishes the manufacturer, quality and/or performance of products utilized in the Work and processes to be used, including testing and verification for producing the Work.

1.23 Subcontractor means a person or entity that enters into an agreement with the

Contractor to perform part of the Work or to provide services, materials or equipment for use in the Work.

1.24 Substantial Completion means that the structure or Project has been made suitable for use or occupancy and is in conditions to serve its intended purpose, but might require minor Work and adjustment, which the Contractor agrees to perform expeditiously.

1.25 Supplementary General Conditions means procedures and requirements that modify the Uniform General Conditions. Supplementary General Conditions, when used, have precedence over the Uniform General Conditions.

1.26 Timely Manner means any goods delivered or services performed promptly and in a time frame that causes no delay to the Project.

1.27 ULCD means a unilateral change directive issued by the Owner without the agreement of the Contractor.

1.28 Unit Price Work means Work or a portion of the Work paid for based on incremental units of measurement.

1.29 Weekend/Holiday Work means any Work outside of the normal and customary

Work hours of 8:00 am to 4:30 pm Monday through Friday or Work done on any city or legal holiday. This Work must be approved in writing in advance by the

ODR. This Work may incur an additional cost for security or observation if necessary.

Note: This Work may incur an additional cost for security or observation if necessary.

1.30 Work means the administration, procurement, labor, materials, equipment, construction services and all other terms customarily incidental to the main items of Work necessary for the Contractor, and/or its agents, to fulfill all of the

Contractor’s obligations under the Contract. The Work includes all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and things necessary, proper or incidental to the carrying out and completion of the terms of the Contract Documents and all other items of cost or value needed to produce, construct and fully complete the Work identified by the Contract Documents.

1.31 “Working Day/Work Day” a calendar day, not including Saturdays, Sundays or legal holidays observed by the Owner, between 8:00 a.m. and 4:30 p.m. Legal holidays are those holidays for which City Hall is closed.

No Saturday, Sunday, legal holiday or Work outside of the designated Work hours will be permitted without the ODR’S prior written authorization on any

Project except to protect Work already done or to address an emergency.

Article 2. Laws Governing Construction

2.1 Environmental Regulations. The Contractor shall conduct activities in compliance with applicable laws and regulations and other requirements of the

Contract relating to the environment, and its protection at all times. Unless otherwise specifically determined, the Owner is responsible for obtaining and maintaining permits related to storm water run-off. The Contractor is responsible for all items it brings to site, including hazardous materials, and all such items brought to the site by its Subcontractors and suppliers, or by other entities subject to direction of the Contractor. The Contractor shall not incorporate hazardous materials into the Work without prior approval of Owner and shall provide an affidavit attesting to such in association with request for Substantial Completion

Inspection. In the event that an item containing hazardous material is specified in the Contract, the Contractor, upon discovery will immediately provide written notice to the Owner and ODR and seek specific written approval from the Owner to incorporate said item into the Work.

2.2 Wage Rates. The Contractor and those performing b y, through or under the

Contractor shall not pay less than the wage scale of the various classes of labor as shown on the “Prevailing Wage Schedule” provided by the Owner. The specified wage rates are minimum rates only. Any Contractor who does Work for the

Owner must comply with the ordinance that outlines the Owner’s standard wage scale. In the cases where federal funding is being used for the Project, or if

Owner fails to provide a “Prevailing Wage Schedule”, the most current wages and the other terms and conditions of the Davis-Bacon Act apply.

2.2.1 Notification to Workers. The Contractor shall notify each worker, in writing, of the following as they commence Work on the Contract: the worker’s job classification, the established minimum wage rate requirement for that classification, as well as the worker’s actual wage.

The notice must be delivered to and signed in acknowledgement of receipt by the employee and must list both the wages and fringe benefits to be paid or furnished for each classification in which the worker is assigned duties. When requested by the Owner, the Contractor shall furnish evidence of compliance with the Texas Prevailing Wage Law.

2.2.1.1. Upon the Owner’s request the Contractor will provide a copy of each worker’s wage rate notification during which the worker was engaged in activities on behalf of the

Project. After the first wage rate notification, the

Contractor shall only resubmit prior to any changes in the standard rate.

2.2.1.2 The “Prevailing Wage Schedule” is determined by the

Owner in Compliance with Tex. Gov’t Code, Chapter

2258.

Should the Contractor at any time become aware that a particular skill or trade not reflected on the Owner’s

“Prevailing Wage Schedule” will be or is being employed in the Work, whether by the Contractor or by a

Subcontractor, the Contractor shall promptly inform the

ODR of the proposed wage to be paid for the skill along with a justification for same. The Contractor is responsible for determining the most appropriate wage for a particular skill in relation to similar skills or trades identified on the

“Prevailing Wage Schedule”. In no case shall any worker be paid less than the wage indicated for laborers.

2.2.1.3 Penalty for Violation. The Contractor and any

Subcontractor will pay to the Owner a penalty of sixty dollars ($60) for each worker employed for each calendar day, or portion thereof, that the worker is paid less than the wage rates stipulated in the “Prevailing Wage Schedule”.

2.2.1.4 Complaints of Violations.

2.2.1.4.1 Owner’s Determination of Good Cause.

Upon receipt of information concerning a violation of Texas Government Code, Chapter 2258, the Owner will, within 31 days, make an initial determination as to whether good cause exists that a violation occurred. The Owner will send documentation of the initial determination to the Contractor against whom the violation was alleged, and to the worker involved.

Upon making a good cause finding, the

Owner will retain the full amounts claimed by the claimant or claimants as the difference between wages paid and wages due under the “Prevailing Wage Schedule” and any supplements thereto, together with the applicable penalties, such amounts being subtracted from successive progress payments pending a final decision on the violation.

2.2.1.4.2 If the Contractor and claimant worker reach

an agreement concerning the claim, the

Contractor shall promptly notify the Owner in a written document countersigned by the worker.

2.2.1.4.3 Arbitration Required. If the violation is

not resolved within fourteen (14) days following initial determination by the

Owner, the Contractor and the claimant worker must participate in binding arbitration in accordance with the Texas

General Arbitration Act, Tex. Civ. Prac.

& Rev. Code, Chapter 171. For a period not to exceed ten (10) days, after which, if no agreement is reached, a district court may be petitioned by any of the parties to the arbitration to appoint an arbitrator whose decision will be binding on all parties.

2.2.1.4.4 Arbitration Award. If an arbitrator

assesses an award against the Contractor, the Contractor shall promptly furnish a copy of said award to the Owner. The

Owner may use any amounts retained under Article 2.2.1.4.1 to pay the worker the amount as designated in the arbitration award. If the retained funds are insufficient to pay the worker in accordance with the arbitration award, the worker has a right of action against the Contractor, and/or its surety to receive the amount owed, plus attorneys’ fees and court costs. The Owner has no duty to release any funds to either the claimant or the Contractor until it has received the notices of agreement or the arbitration award.

2.2.1.4.5 No Extension of Time. If the Owner’s

determination proves valid that good cause existed to believe a violation had occurred, the Contractor is not entitled to an extension of time for any delay arising directly or indirectly from the arbitration procedures set forth herein.

2.3 Venue for Suits. The exclusive venue for any suit arising from this Contract will be in a court of competent jurisdiction in Potter County, Texas, unless otherwise specifically designated in the Supplementary General Conditions.

2.3 Licensing of Trades. The Contractor shall comply with all applicable provisions of state law related to license requirements for skilled tradesmen, contractors, suppliers and or laborers, as necessary to accomplish the Work.

2.4 In the event the Contractor, or one of its Subcontractors, loses its license during the term of performance of the Contract, the Contractor shall promptly hire or contract with a licensed provider of the service at no additional cost to the Owner.

2.5 Royalties, Patents & Copyrights. The Contractor shall pay all royalties and license fees, defend all suits or claims for infringement of any intellectual property rights and shall save the Owner and the Engineer harmless from loss of any kind on account thereof.

2.6 State Sales and Use Taxes. The Owner qualifies for exemption from certain state and local sales and use taxes pursuant to the provisions of Tex. Tax Code, Chapter

151. The Contractor may claim exemption from payment of applicable state taxes by complying with such procedures as prescribed by the State Comptroller of

Public Accounts. Owner is not required to reimburse Contractor for taxes paid on items that qualify for tax exemption.

2.7 Antitrust Claims. As required in state contracts, “Vendor hereby assigns to purchaser any and all claims for overcharges associated with this Contract which arise under the antitrust laws of the United States, 15 U.S. C.A. Sec.1, et seq.

(1973).”

2.8 Parties in Interest. The Contract does not bestow any rights upon any third party but binds and benefits the parties hereto only. Any third-party beneficiary interests are specifically denied and disclaimed, unless otherwise specifically set forth in this Contract.

Article 3. General Responsibilities of Owner & Contractor

3.1 Owner’s General Responsibilities. The Owner is the entity identified as such in the Contract and referred to throughout the Contract Documents as if singular in number.

3.1.1 Mandatory Preconstruction Conference. Prior to, or concurrent with, the issuance of notice to proceed with construction, a conference will be convened for attendance by the Owner, Contractor, Engineer, ODR, and appropriate Subcontractors including those whose Work comprises approximately 8% or more of the total Contract Sum. The purpose of the conference is to establish a working understanding among the parties as to the Work, the operational conditions at the Project Site, and general administration of the Project. Topics include communications, schedules, procedures for handling Shop Drawings and other submittals, processing applications for payment, maintaining required records and all other matters of importance to the administration of the Project and effective communications between the Project team members.

3.1.2 Owner’s Designated Representative. Prior to the start of construction, Owner will identify the ODR, who has the express authority to act and bind the Owner to the extent and for the purposes described in the various articles of the Contract, including responsibilities for general administration of the Contract.

3.1.2.1 Unless otherwise specifically defined elsewhere in the

Contract Documents, the ODR is the single point of contact between the Owner and Contractor.

Notice to the ODR, unless otherwise noted, constitutes notice to the Owner under the Contract.

3.1.2.2 All directives on behalf of the Owner will be conveyed to the Contractor by the ODR in writing.

3.1.3 Owner Supplied Materials and Information.

3.1.3.1 The Owner may furnish to the Contractor those surveys describing the physical characteristics, legal description, limitations of the Project Site, site utility locations, and other information used in the preparation of the Contract

Documents. The Owner makes no warranty as to the accuracy, sufficiency or completeness of any supplied information.

3.1.3.2 The Owner will provide information, equipment, or

services under the Owner’s control to the Contractor with reasonable promptness.

3.1.4 Availability of Lands. The Owner will furnish, as indicated in the

Contract, all required rights to use the lands upon which the Work occurs.

This includes rights-of-way and easements for access and such other lands that are designated for use by the Contractor. The Contractor shall comply with all Owner identified encumbrances or restrictions specifically related to use of lands so furnished. The Owner will obtain and pay for easements for permanent structures or permanent changes in existing facilities, unless otherwise required in the Contract Documents.

3.1.4.1 The Contractor and any entity for which the Contractor is responsible shall not erect any sign on the Project Site without the prior written consent of the Owner.

3.1.4.2 In the event Owner permits the erection of signs, the ODR will designate an area where signs may be placed. In no event shall Contractor or its Subcontractor erect a sign that impairs visibility, safety or security at the Project Site.

3.1.4.3 The Contractor shall use the minimum area practicable for construction of the facilities, regardless of the type of lands, and shall be governed by the specific requirements for each type of lands.

All access to the Owner’s property shall be along routes designated.

3.1.5 Limitations on Owner’s Duties

3.1.5.1 The Owner will not supervise, direct, control or have authority over or be responsible for Contractor’s means, methods, technologies, or procedures of construction or the safety precautions and programs incidental thereto.

The Owner is not responsible for any failure of Contractor to comply with laws and regulations applicable to the

Work. The Owner is not responsible for the failure of

Contractor to perform or furnish the Work in accordance with the Contract Documents. Owner is not responsible for the acts or omissions of Contractor, or any of its

Subcontractors, suppliers or of any other person or organization performing or furnishing any of the Work on behalf of the Contractor.

3.1.5.2 The Owner will not be obligated to take any action in contravention of a design decision made by the Engineer in preparation of the Contract Documents, except, when such actions are in conflict with statutes under which the

Engineer is licensed for the protection of the public health and safety.

3.1.5.3 It is understood and agreed that the relationship of

Contractor to Owner shall be that of an independent

Contractor. Nothing contained herein or inferable herefrom shall be deemed or construed to (1) make Contractor the agent, servant or employee of the Owner, or (2) to create any partnership, joint venture, or other association between

Owner and Contractor. Any direction or instruction by

Owner or any of its authorized representatives in respect of the Work shall relate to the results the Owner desires to obtain from the Work and shall in no way affect

Contractor’s independent Contractor status described herein.

3.2 Role of Engineer. Unless specified otherwise in the Contract between the Owner and the Contractor, the Engineer shall provide general administration services for the Owner during the construction phase of the Project. Written correspondence, requests for information, and Shop Drawings/submittals shall be directed to the

Engineer for action. The Engineer has the authority to act on behalf of the Owner to the extent provided in the Contract Documents, unless otherwise modified by written instrument, which will be furnished to the Contractor by the ODR, upon request.

3.2.1 Site Visits

3.2.1.1 The Engineer will make visits to the Project Site at

intervals as provided in the Engineer’s contract agreement with the Owner, to observe the progress and the quality of the various aspects of Contractor’s executed Work and report findings to the Owner.

3.2.2.2 The Engineer has the authority to interpret Contract

Documents and inspect the Work for compliance and conformance with the Contract.

Except as referenced in Article 3.1.5.1, the Owner retains the sole authority to accept or reject Work, “stop Work orders” and issue direction for correction, removal, or replacement of Work.

3.2.2 Clarifications and Interpretations. It may be determined that clarifications or interpretations of the Contract Documents are necessary.

Upon request by the ODR such clarifications or interpretations will be provided by the Engineer consistent with the intent of the Contract

Documents. The Engineer will issue these clarifications with reasonable promptness to the Contractor as either an Engineer’s Supplemental

Instruction (ESI), or similar instrument. If Contractor believes that such clarification or interpretation justifies an adjustment in the Contract Sum or the Contract Time, the Contractor shall so notify the Owner in accordance with the provisions of Article 10.

3.2.3 Interpretation of Phrases. Whenever the words, directed, required, permitted, designated, considered necessary, prescribed or words of like import are used, it shall be understood that the direction, requirement, permission, order, designation or prescription of the Engineer and ODR is intended; and, similarly, the words approval, acceptable, satisfactory or words of like import shall mean acceptable or satisfactory to the Engineer and ODR.

3.2.4 Interpretation of Specifications. Whenever in the Specifications or

Drawings accompanying this Contract, the terms or description of various qualities relative to finish, workmanship or other qualities of similar kind which cannot from their nature be specifically and clearly described and specified, but are necessarily described in general terms, the fulfillment of which must depend on individual judgment, then, in all such cases, any question of the fulfillment of said Specifications shall be decided by the

Engineer, and said Work shall be done in accordance with his interpretations of the meaning of the words, terms or clauses defining the character of the Work.

3.2.5 Limitations on Engineer Authority. The Engineer is not responsible for:

3.2.5.1 The Contractor’s construction means, methods, techniques, sequences, procedures, safety, or programs incidental to the

Project nor will the Engineer supervise, direct, control or have authority over the same.

3.2.5.2 The failure of Contractor to comply with laws and

regulations applicable to the furnishing or performing the

Work.

3.2.5.3 The Engineer shall not have the authority to make

changes to the Owner’s standard terms and conditions.

The Engineer shall not be required to seal those terms and conditions used to bid the job.

3.2.5.4 The Engineer shall have the authority to recommend and to reasonably reject Subcontractors hired by the Contractor to perform Work on or off the Project Site.

The request for rejection for cause must be evaluated and accepted by the Owner, prior to taking effect.

3.3 Contractor’s General Responsibilities. Contractor shall execute the Work in workmanlike manner, continuously and diligently in accordance with generally accepted standards of construction management and practice for construction of

Projects similar to the Project, using qualified, careful and efficient workers and in conformity with the provisions of this Contract and the other Contract Documents.

The Contractor is solely responsible for implementing the Work in full compliance with all applicable laws, codes and regulations and the Contract Documents and shall supervise and direct the Work using the best skill and attention to assure that each element of the Work conforms to the Contract requirements. The Contractor is solely responsible for all construction means, methods, techniques, safety, sequences, coordination and procedures. Prior to submitting a bid for the project, the Contractor is responsible for visiting the site and being familiar with local conditions such as the location, accessibility, and general character of the Project Site and/or building.

3.3.1 Project Administration. The Contractor shall provide Project administration for all Subcontractors, vendors, suppliers, and others involved in implementing the Work and shall coordinate administration efforts with those of the Engineer and ODR in accordance with these general conditions as outlined in the pre-construction conference.

3.3.2 Contractor’s Superintendent. Employ a competent resident superintendent who is fluent in English and competent in the use of construction schedules, who will be present at the Project Site during the progress of the Work. The superintendent is subject to the approval of the ODR. The superintendent may not be changed during the course of the Project without the written approval of the ODR or Owner’s Engineer.

3.3.3 Labor. Provide competent, suitably qualified personnel to survey, layout, and construct the Work as required by the Contract Documents. Maintain good discipline and order at the Project Site at all times.

3.3.4 Services, Materials, and Equipment. Unless otherwise specified, provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities, incidentals, and services necessary for the construction, performance, testing, start-up, inspection and completion of the Work.

3.3.4.1 Sanitation. Sanitary facilities for the use of laborers on the

Project Site, properly secluded from public observation, and sufficient in number shall be provided by and maintained by the Contractor.

3.3.5 Non-Compliant Work. Should the Engineer and/or the ODR identify

Work as non-compliant with the Contract Documents, the ODR will communicate the finding to the Contractor and the Contractor will correct such Work at its sole expense. The acceptance of Work by either the

Engineer or ODR does not relieve the Contractor from the obligation to comply with all requirements of the Contract Documents.

3.3.6 Subcontractors. A subcontract does not relieve any responsibility under the Contract and bonds. The Contractor shall ensure that all subcontracted

Work complies with all labor provisions. The Contractor must perform at least 30% of the total original contract cost within his own organization.

The Contractor will not employ any Subcontractor, supplier or other person or organization, whether initially or as a substitute, against whom the Owner may have reasonable objection. The Owner will communicate such objections in writing. The Contractor is not required to employ any

Subcontractor, supplier or other person or organization to furnish any of the Work to whom the Contractor has reasonable objection. The

Contractor will not substitute Subcontractors without the approval of the

Owner. The Contractor may not employ a Subcontractor that is on the

Owner’s disqualified bidders list without the Owner’s prior written permission or in the case of a federally funded job any Subcontractor that is on the federal excluded parties list.

3.3.6.1 All subcontracts and supply contracts shall be consistent with and bound to the terms and conditions of the Contract

Documents including provisions of this Contract.

3.3.6.2 The Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with the

Contractor.

Require all Subcontractors, suppliers and such other persons and organizations performing or furnishing any of the Work to communicate to the Owner only through the

Contractor. Furnish to the Owner a copy of each first-tier subcontract promptly after its execution.

The Contractor agrees that the Owner has no obligation to review or approve the content of such contracts and that providing the Owner such copies in any way relieves the

Contractor of any of the terms and conditions of this

Contract, including, without limitation, any provisions of this Contract which require the subcontractor to be bound to the Contractor in the same manner in which the

Contractor is bound to the Owner.

3.3.6.3 Assignment and Subletting. The Contractor will retain personal control and will give his personal attention to the fulfillment of this Contract and will not assign or sublet said Contract without the written consent of the Owner.

No part of the Work will be sublet to anyone objectionable to the Engineer or the Owner. The Contractor further agrees that the subletting of any portion or feature of the Work, or materials required in the performance of this Contract, shall not relieve the Contractor from his full obligation to the

Owner under this Contract.

3.3.6.4 The Contractor shall be as fully responsible to the Owner for the acts and omissions of his Subcontractors and of persons either directly or indirectly employed by them as he is for the acts and omissions of persons directly employed by him. Should any Subcontractor fail to perform the Work undertaken by him in a satisfactory manner, the Contractor shall take corrective action.

3.3.6.5 Nothing contained in this Contract shall create any

contractual relation between any Subcontractor and the

Owner.

3.3.6.6 If the Contractor assigns any of the compensation to be paid under this Contract, the instrument of assignment shall agree that the right of the assignee in and to any compensation to be paid to the Contractor shall be subject to all prior liens of all persons, firms, and corporations for services rendered or materials supplied for the performance of the Work called for in this Contract.

3.3.6.7 The Contractor shall pay his Subcontractors in a Timely

Manner as required per Chapter 2251 of the Texas

Government Code.

3.3.7 Continuing the Work. Carry on the Work and adhere to the progress schedule during all disputes, disagreements or alternative resolution processes with the Owner. Do not delay or postpone any Work because of the pending resolution of any disputes, disagreements or processes, except as the Owner and the Contractor may agree in writing.

3.3.8 Cleaning. At all times, keep the Project Site and the Work clean and free from accumulation of waste materials or rubbish caused by the construction activities under the Contract. The Contractor shall ensure that the entire Project is thoroughly cleaned prior to requesting Substantial

Completion inspection and, again, upon completion of the Project prior to the final inspection.

3.3.9 Acts and Omissions of Contractor, its Subcontractors and Employees. The

Contractor is responsible for acts and omissions of its employees and all its Subcontractors, their agents and employees. The Owner may, in writing, require the Contractor to remove from the Project any of the

Contractor’s or its Subcontractor’s employees that the ODR finds to be careless, incompetent, or otherwise objectionable.

3.3.10 Indemnification of Owner. The Contractor covenants and agrees to

FULLY INDEMNIFY, DEFEND, and HOLD HARMLESS, the

Owner and the elected officials, employees, officers, directors, volunteers, and representatives of the Owner, individually or collectively, from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal or bodily injury, death and property damage, made upon the Owner directly or indirectly arising out of, resulting from or related to Contractor’s activities under this

Contract, including any acts or omissions of Contractor, and agent, officer, director, representative, employee, consultant or the

Subcontractor of Contractor, and their respective officers, agents, employees, directors and representatives while in the exercise of performance of the rights or duties under this Contract. The indemnity provided for in this paragraph does not apply to any liability resulting from the negligence of the Owner, officers or employees, separate Contractors or assigned contractors, in instances where such negligence causes personal injury, death or property damage. IN THE EVENT CONTRACTOR AND OWNER ARE

FOUND JOINTLY LIABLE BY A COURT OF COMPETENT

JURISDICTION, LIABILITY WILL BE APPORTIONED

COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF

THE STATE OF TEXAS, WITHOUT WAIVING ANY

GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER

UNDER TEXAS LAW AND WITHOUT WAIVING ANY

DEFENSES OF THE PARTIES UNDER TEXAS LAW.

3.3.10.1 The provisions of this indemnification are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.

3.3.10.2 Contractor shall promptly advise the Owner in writing of any claim or demand against the Owner or the Contractor known to the Contractor related to or arising out of the

Contractor’s activities under this Contract.

3.3.10.3 This indemnity shall survive termination, completion and abandonment of this Contract.

3.3.11 Ancillary Areas. Contractor shall promptly advise and maintain operations and associated storage areas at the site of the Work in accordance with the following:

3.3.11.1 Confine all Contractor operations, including storage of materials and employee parking upon the Project Site, to areas designated on the plans or as designated by the

3.3.11.2 The Contractor may erect, at its own expense, temporary buildings that will remain its property. Remove such buildings and associated utility service lines upon completion of the Work, unless the Contractor requests and the Owner provides written consent that it may abandon such buildings and utilities in place.

3.3.11.3 Contractor shall use only established roadways or construct and use such temporary roadways as may be authorized by the Owner. Contractor shall not allow load limits of vehicles to exceed the limits prescribed by appropriate regulations or law. Contractor shall, as its sole expense, provide protection to road surfaces, curbs, sidewalks, trees, shrubbery, sprinkler systems, drainage structures and other like existing improvements to prevent damage and repair any damage thereto.

3.3.11.4 The Owner may restrict the Contractor’s entry to the site to specifically assigned entrances and routes.

3.3.11.5 Without prior approval of the ODR, the Contractor shall not permit any Workers to use any existing facilities at the

Project Site, including, without limitation, lavatories, toilets, entrance and parking areas other than those designated by the ODR.

Without limitation of any other provision of the Contract

Documents, the Contractor shall use its best efforts to comply with all rules and regulations promulgated by the

ODR in connection with the use and occupancy of the

Project Site, as amended from time to time.

3.3.12 Separate Contracts. Additional Contractor responsibilities when the

Owner awards separate contracts;

3.3.12.1 The Owner reserves the right to award other contracts in connection with other portions of the Project.

3.3.12.2 The Owner reserves the right to perform operations related to the Project with the Owner’s own forces.

3.3.12.3 Under a system of separate contracts, the conditions described herein continue to apply except as may be amended by Change Order.

3.3.12.4 The Contractor shall coordinate with other contractors employed on the Project by the Owner, including providing access to the Project Site and Project information as requested.

3.4 Cost Reduction Incentive. After the execution of Contracts, the Contractor may submit to the Engineer written proposals for modifying the plans, Specifications or other requirements of the Contract for the sole purpose of reducing the cost of construction. The cost reduction proposal shall not impair the essential functions or characteristics of the Project, including but not limited to service life, economy of operation, ease of maintenance, desired appearance, design and safety standards. This provision shall not apply unless the proposal submitted is specifically identified by the Contractor as being presented for consideration as a value engineering proposal and provide a cost reduction to the Owner.

3.4.1 Changes in the basic design of a pavement type, hydraulic capacity of drainage facilities, or changes in grade or alignment that reduce the geometric standards of the Project are eligible for a cost reduction incentive consideration.

The following information shall be submitted by the Contractor with each proposal:

3.4.1.1 Descriptions of existing Contract requirements and the proposed changes with a discussion of the comparative advantages and disadvantages of each, including any effects on the expected life cycle and ongoing maintenance costs;

3.4.1.2 The Contract requirements that must be changed if the proposal is adopted;

3.4.1.3 Detailed construction cost estimates performing the Work under the existing Contract and under the proposed changes;

3.4.1.4 The latest date by which a Change Order adopting the

proposal must be issued;

3.4.1.5 A statement of the effect the proposal will have on the

Contract completion time; and

3.4.1.6 The Contract items of Work affected by the proposed

changes, including any quantity variation attributable to them.

3.4.2 The Contractor may withdraw, in whole or in part, any cost reduction proposal not accepted by the Engineer, within the first two weeks of construction.

This time period provision shall not be construed to require the Engineer to consider any cost reduction proposal which may be submitted.

3.4.3 The Contractor shall continue to perform the Work in accordance with the

Contract requirements until a Change Order incorporating the cost reduction proposal has been issued. If a Change Order has not been issued by the date upon which the Contractor’s cost reduction proposal specifies that a decision should be made, or such other date as the Contractor may subsequently have requested in writing, such cost reduction proposal shall be deemed rejected.

3.4.4 The Engineer with confirmation from the City Manager shall be the sole judge of the acceptability of a cost reduction proposal and of the estimated net savings from the adoption of all or any part of such proposal.

In determining the estimated net savings, the Engineer may disregard the

Contract bid prices if, in the Engineer’s judgment such prices do not represent a fair measure of the value of the Work to be performed or deleted.

3.4.5 The Contractor may share in the Owner’s costs of investigating a cost reduction proposal submitted by the Contractor as a condition of considering such proposal.

3.4.6 The Owner may deduct the cost of investigating a cost reduction proposal from amounts payable to the Contractor under the Contract.

3.4.7 If the Contractor’s cost reduction proposal is accepted in whole or in part, a Change Order shall be executed. The Change Order shall incorporate the changes in the plans and Specifications caused by the cost reduction proposal and shall include any conditions upon which the Engineer’s approval is based. The Change Order shall also set forth the estimated net savings attributable to the cost reduction proposal.

The net savings shall be determined as the difference in costs between the original Contract costs for the involved Work items and the costs occurring as a result of the proposed change. The Change Order shall also establish the net saving and shall provide for adjustment in the Contract

Sum that will divide the net savings equally between the Contractor and the Owner.

3.4.8 The Contractor’s fifty percent (50%) share of the net savings shall constitute full compensation to the Contractor for the cost reduction proposal and the performance of the Work.

3.4.9 Acceptance of the cost-reduction proposal and performance of the cost-reduction Work shall not extend the time of completion of the Contract unless specifically provided for in the Contract Change Order.

3.5 Protection and Restoration of Adjoining Property; The Contractor shall take proper measures to protect the adjacent or adjoining property which might be injured by any process of construction, and, in case of any injury or damage, he shall restore at his own expense the damaged property to a condition equal to or better than that existing before such injury or damage was done, or he shall make good such injury or damage in an acceptable manner.

3.5.1 The Contractor shall exercise all reasonable precautions necessary to avoid restriction of access to adjoining property and shall indemnify, defend and hold harmless the Owner from claims, damages and expenses based on allegations of restriction of access, undue delay or negligent performance of the Work.

3.5.2 The Contractor shall use every precaution necessary to prevent damage to all trees, driveways, sidewalks, water, sewer, gas or electric lines or appurtenances thereof, and to all other public or private property along or adjacent to the Work. The Contractor shall notify the proper representative of any public utility, any company, or any individual not less than twenty-four (24) hours in advance of any Work, which might damage or interfere with the operation of its property adjacent to the

The Contractor shall be responsible for all damage or injury to property of any character resulting from any act, omission, neglect, or misconduct in the manner or method of executing the Work or due to his non-execution of the Work or at any time due to defective Work or materials, and said responsibility shall not be released until the Work shall have been completed and accepted.

3.5.3 Care of Existing Facilities.

3.5.3.1 Contractor shall be responsible for repair or replacement of existing facilities including any landscaping, paving, roads, sidewalks and gutters damaged as a result of the performance of this Work.

Any facilities or finishes damaged shall be repaired or replaced by Contractor at no additional cost to Owner, with materials and Workmanship equivalent to that employed in executing the original Work and to the ODR’S satisfaction.

3.5.3.2 Contractor shall take care not to overload the existing structure by storing material, erecting shoring, placing equipment, or any other similar activities.

3.5.4 Noise and Dust Control;

3.5.4.1 Contractor shall note that in cases where the building and adjacent facilities will remain in operation during the entire construction period and shall take all reasonable precautions to eliminate dust and minimize noise.

3.5.4.2 If required, Contractor shall erect temporary partitions to confine noise and dust.

3.5.4.3 Radios, Jam-boxes, CD players, or personal sound

equipment of any kind will not be permitted anywhere on the construction site.

3.6 Time and Order of Completion; It is the intent of this Contract, except where otherwise herein specifically provided, that the Contractor shall be allowed to prosecute his Work at such times and order of precedence, and in such manner as shall be most conductive to economy of construction; provided, however, that the

Contractor shall not remove more existing structure than he needs for normal progress. If, in the opinion of the Engineer, an excessive amount of structure is removed without immediate plans for replacement that will unduly cause hardship on the Owner, all Work will be halted immediately. Work will not again proceed without written instructions from the Engineer.

Any Work accomplished after halting of construction and before written instructions from the Engineer to renew construction will not be compensated. The order and time of prosecution of Work shall be such that the Work shall be substantially completed in accordance with this Contract within the time of completion herein authorized. No Work will be performed between 6:00 p.m. and

7:00 a.m. without written approval from the Owner.

3.6.1 The Contractor will commence Work within ten (10) calendar days after written notice to proceed has been given to the Contractor. Written notice to commence Work shall not be given until the Contract has been properly executed by the Contractor and the Owner and the Contractor has provided the Owner with the necessary bonds, certificates of insurance, and any special items required, and a preconstruction conference has been held. If the cut sheets have not been approved and/or utility relocations have not been completed, Working Days will not be charged until the

ODR determines Work can begin. This determination is at the discretion of the ODR who may instruct the Contractor to begin Work on the other portions of the Project.

3.6.1.1 Working Days shall commence on the highest valued

Project in a multiple Project agreement either when the

Contractor begins Work or ten (10) calendar days after written notice to proceed has been given to the Contractor at the preconstruction conference. If other circumstances, such as utility relocation, prevent construction beginning on the highest valued Project, the owner shall determine which

Project shall start first.

3.6.1.2 Working Days shall commence on the next highest valued

Project in a multiple Project agreement when one of the following first occurs;

3.6.1.2.1 The Contractor begins Work;

3.6.1.2.2 Ten (10) calendar days have elapsed after the previous

Project was determined to be substantially complete by the ODR.

3.6.1.2.3 Ten (10) calendar days have elapsed from the last

allowable Working Day on the previous Project.

The Contractor may request to begin Work on a lesser-valued Project, but the ODR manager must concur with the selection. Each Project in a multiple Project agreement shall be independent in terms of either Working Days established by the Project manager or proposed by the

Contractor.

3.6.2 A “Work Day” is a calendar day, not including Saturdays, Sundays or legal holidays observed by the Owner, between 8:00 a.m. and 4:30 p.m.

Legal holidays are those holidays for which City Hall is closed. No

Saturday, Sunday, legal holiday or Work outside of the designated Work hours will be permitted without the ODR’S prior written authorization on any Project except to protect Work already done or to address an emergency.

3.6.2.1 Should Contractor desire special permission to Work on a

Saturday, it shall make request of such on the preceding

Friday before 12:00 noon and shall provide an explanation of why it desires such. The ODR and/or Engineer shall make a ruling on the Contractor’s request by 4:30 p.m. of the preceding Friday.

3.6.2.2 All requests made after 12:00 noon on the preceding Friday shall not be considered.

3.6.2.3 Any Work performed at a time or on a day outside of the declared “Working Day” without permission is…