2-3202600039 Attachment 2 UGCs 12.3.2024 (1).docx

Texas Workforce Commission Uniform General Conditions (Version 12/3/2024)

2.1 Compliance with Laws

2.2 Environmental Regulations

2.3 Wage Rates

2.4 Antitrust Claims

2.5 Venue for Suits

2.6 Licensing of Trades

2.7 Royalties, Patents and Copyrights

2.8 State Sales and Use Taxes

2.9 Buy America Requirements for Iron and Steel Used in Construction

3.1 Drawings and Specifications

3.2 Requirement for Record Documents

3.3 Bonding Requiements

4.1 General Administration

4.2 Access to and Inspection of the Work

4.3 Separate Contracts

4.4 Suspension

4.5 Additional Contract Termination Conditions

5.1 TWC’s Responsibilities

5.2 TWC & Contractor Obligations

5.3 Contractor’s Responsibilities

5.4 Insurance

5.5 Construction Safety

5.6 Tests

5.7 Removal of Defective Work

5.8 Equal Materials

5.9 Submittals

5.10 Cleaning

6.1 Change Orders

6.2 Unit Prices

6.3 Claims for Additional Costs

6.4 Extension of Time

6.5 Minor Changes

6.6 Administration of Change Orders

6.7 Purchase Order Change Notice Log (POCN Log)

6.8 Pricing Change Order Work

6.9 Unilateral Change Order (ULCO)

6.10 Final Resolution of Changes

7.1 Schedule of Values

7.2 Progress Payments

7.3 Payments under Texas Government Code, Chapter 2251

7.4 Owner’s Duty to Pay

7.5 Off-Site Storage

7.6 Time for Payment by Contractor to Subcontractor

7.7 Claims for Unpaid Labor and Materials

8.1 Contract Time

8.2 Notice to Proceed

8.3 Multiple Phases

8.4 Project Completion Date

8.5 Work Progress Schedule

8.6 Ownership of Float

8.7 Completion of Work

8.8 Modification of Contract Time

8.9 No Damages for Delay

8.10 Concurrent Delay

8.11 Other Time Extension Requests

8.12 Failure to Complete Work Within the Contract Time

8.13 Liquidated Damages

8.14 Actual Damages

9.1 Closing Inspections

9.2 Owner’s Right of Occupancy

9.3 Acceptance and Payment

10.1 Contractor’s General Warranty and Guarantee

10.2 Warranty Period

10.3 Limits on Warranty

10.4 Events Not Affecting Warranty

10.5 Separate Warranties

10.6 Correction of Defects

10.7 Certification of No Asbestos Containing Materials or Work

11.1 Unresolved Contractor Disputes

11.2 Alternative Dispute Resolution Process

11.3 Owner’s Right to Seek Redress

11.4 State’s Sovereign Immunity

12.1 Supplementary General and Special Conditions

12.2 Federally Funded Projects

12.3 Internet-based Project Management Systems

12.4 Administrative Inspections and Audits

TWC TERMS AND CONDITIONS………………………..…………………

1. DEFINITIONS

Whenever the following terms are used in these Uniform General Conditions or in the other Contract Documents, the intent and meaning must be interpreted as follows:

Addenda/Addendum means the formally issued written description or graphic modification and/ interpretations or clarifications to the Contract Documents that may add to, delete from, clarify or correct the description and/or the scope of the Work. Addenda are issued during the bidding phase of the project.

Architect/Engineer (A/E) means a person registered as an architect pursuant to Chapter 1051, Subchapter N, Texas Occupations Code (T.O.C.), as a landscape architect pursuant to Chapter 1052, Subchapter D, T.O.C., and/or a person licensed as a professional engineer pursuant to Chapter 1001, Subchapter G, T.O.C., or firm employed to provide professional architectural or engineering services and having overall responsibility for the design of a project or a significant portion thereof, and to perform contract administration responsibilities set forth in the Contract.

Authority Having Jurisdiction means a federal, state, local, or other regional department, or an individual such as a fire marshal, building official, electrical inspector, utility provider or other individual having statutory authority.

Bidder means the individual, corporation, company, partnership, firm or other organization that has submitted a bid document in response to the Invitation for Bids (IFB) or Request for Proposals (RFP).

Certificate of Substantial Completion means the certificate executed by the A/E, Owner’s Designated Representative (ODR) and Contractor that documents to the best of A/E’s and ODR’s knowledge and understanding, Contractor’s sufficient completion of the work in accordance with the Contract, so as to be operational and fit for the use intended.

Change Order means a written modification to the Contract between TWC and the Contractor, signed by TWC, the Contractor and the A/E.

Change Order Request means a document used by Contractor to provide cost and time proposal for a Proposed Change Order.

Closeout Documents means all documents required to be submitted to TWC before final payment to the Contractor is made including, but not limited to the following: Consent of Surety for Final Payment, Final Punch List, Operation and Maintenance Manuals, Product Data Submittals, Product Source Data, Project Record Drawings, Warranties, Product brochures, Product/equipment maintenance and operation instructions.

Contract means the entire agreement between TWC and the Contractor, including all of the Contract Documents.

Contractor/Awarded Vendor means the individual, corporation, company, partnership, firm or other organization that has been awarded the Contract and performs the Work under the Contract with TWC.

Contract Date means the date of the Contract award notice issued by TWC.

Contract Documents means the Contract Documents consisting of TWC-IFB, Attachments I, II, III, IV, V, VI, VII, VIII, IX, the Project Change Log and Allowance Report, the Drawings, the Specifications, and all Addenda issued prior to and any change orders issued after execution of the Contract. The Contract Documents form the CONTRACT, which represents the entire and integrated agreement between TWC and the Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. The Contract Documents are complementary, and what is required by any one document shall be as binding as if required by all. Special Conditions relate to a specific project and are peculiar to it. Closeout documents are the standard product brochures, product/equipment maintenance and operations instructions, manuals, etc., and as may be further defined or identified and required by the Contract Documents.

Contract Sum: The total compensation payable to the Contractor for performing the work as originally contracted for or as subsequently adjusted by change order.

Contract Time means the period between the start date identified in the Notice to Proceed with construction and the Substantial Completion date identified in the Notice to Proceed or as subsequently amended by Change Order plus an additional ninety (day) calendar days for closing.

Day means a calendar day, unless otherwise specifically stipulated.

Notice To Proceed means the written document informing the Contractor of the date for commencement of contract work and the date for completion of the contracted project or work.

Owner means the Texas Workforce Commission (TWC) and the Agency responsible for the execution of this Contract for the State of Texas.

Owner’s Designated Representative (ODR) means the individual assigned by Owner to act on its behalf and to undertake certain activities as specifically outlined in the Contract. ODR is the only party authorized to direct changes to the scope, cost, or time of the Contract.

Project means the work defined by the Contract Documents.

Proposed Change Order (PCO) means a document that informs and requests a Contractor to provide a proposal for a proposed change in the Work.

Purchase Order Change Notice (POCN) means a document that shows approved and fully executed Work changes that describes the Work changes and includes Contractor’s cost of proposal.

Purchase Order Change Notice Log is a document used by contractor to submit for approval, and track, any changes in work scope, cost or time.

Record Documents mean the drawing set, Specifications, and other materials maintained by Contractor that documents all addenda, Architect’s Supplemental Instructions, Change Orders and postings and markings that record the as-constructed conditions of the Work and all changes made during construction.

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

Shop Drawings means drawings, diagrams, illustrations, schedules, performance charts, brochures and other data provided by the Contractor and/or Subcontractor, manufacturer, supplier or distributor, that serve to detail and illustrate a portion of the work.

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

Subcontractor means a person or organization who contracts under, or for the performance of part or all, of the Contract between TWC and the Contractor. The subcontract may be direct with the Contractor or with another subcontractor.

Terms and Conditions means the TWC Terms and Conditions.

Work means all labor, parts, materials, equipment, facilities, services and all other things, which are required by the Contract Documents.

<<END OF SECTION>>

2. LAWS GOVERNING CONSTRUCTION

2.1 Compliance with Laws. In the execution of the Contract, the Contractor must comply with all applicable State and Federal laws, including but not limited to laws concerned with labor, environment, equal employment opportunity, safety and minimum wages. The Contractor shall make himself/herself familiar with and at all times shall observe and comply with all Federal, State and Local laws, ordinances and regulations which in any manner affect the conduct of the work, and shall indemnify and hold harmless the State and its official representatives against any claim arising from any violation of any such law, ordinance or regulation by himself/herself or by his/her subcontractors, or his/her employees.

The Contractor shall cooperate with applicable city or any other governmental officials at all times where their jurisdiction prevails. The Contractor shall make application for any permits and permanent utilities, which are required for the execution of the Contract.

TWC will comply with provisions of Texas Government Code, Chapter 2272 in the event that a claim for damages arises under any resulting contract to which that chapter applies.

2.2 Environmental Regulations. 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, Contractor is responsible for obtaining and maintaining permits related to stormwater run-off. Contractor shall conduct operations consistent with stormwater run-off permit conditions. Contractor is responsible for all items it brings to the 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 Contractor. Contractor shall not incorporate hazardous materials into the Work without prior approval of TWC and shall provide an affidavit attesting to such in association with request for final inspection.

2.3 Wage Rates. 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 TWC in the Solicitation. The specified wage rates are minimum rates only, and TWC will not consider any claims for additional compensation made by any Contractor because of payment by the Contractor of any wage rates in excess of the applicable minimum rate contained in the Contract. The Prevailing Wage Schedule is not a representation that qualified labor adequate to perform the Work is available locally at the prevailing wage rates.

2.3.1 Notification to Workers. The Contractor shall post the “Prevailing Wage Schedule” in a place conspicuous to all workers on the Project Site. When requested by TWC, Contractor shall furnish evidence of compliance with the Texas Prevailing Wage law and the addresses of all workers.

2.3.1.1 Pursuant to Texas Government Code § 2258.024, the Contractor and each Subcontractor shall keep, or cause to be kept, true and accurate records showing the names and occupations of all laborers, workers and mechanics employed in connection with the Work, and showing also the actual per diem wages paid to such workers, which records shall be open to inspection by TWC at all reasonable hours for the duration of the Contract.

2.3.1.2 Certain Public Works require the Prevailing Wage Schedule to list not only “Building Construction” wage rates but also “Incidental Paving and Utilities” wage rates. The Contractor’s attention is called to the fact that all classes of work within the area of the building shall be paid “Building Construction” wage rates.

2.3.1.3 With each application for progress payment, Contractor shall make available upon request certified payroll records, including from subcontractors of any tier level, on Form WH-347 as promulgated by the U.S. Department of Labor, as may be revised from time to time and in unlocked and unprotected Excel format, along with copies of any and all Contract Documents between Contractor and any Subcontractors. Pursuant to Tex. Penal Code §§ 37.02 and 37.10, Employees of Contractor and subcontractors, including all tier levels, shall be subject to prosecution for submitting certified payroll records that contain materially false information.

2.3.1.4 The prevailing wage schedule is determined by TWC in compliance with Tex. Gov’t Code, Ch. 2258. Should Contractor at any time become aware that a particular skill or trade not reflected on TWC’s Prevailing Wage Schedule will be or is being employed in the Work, whether by Contractor or by Subcontractor, Contractor shall promptly inform TWC of the proposed wage to be paid for the skill along with a justification for same and TWC shall promptly concur with or reject the proposed wage and classification.

2.3.1.5 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.

2.3.1.6 Misclassification of Workers: Penalty. The Contractor and all Subcontractors are required to properly classify individuals as Employees or Independent Contractors pursuant to Texas Labor Code § 214.008.

2.3.2 Penalty for Violation. Pursuant to the provisions of Chapter 2258, Texas Government Code, the Contractor shall forfeit as a penalty to the State sixty dollars ($60.00) for each laborer, worker or mechanic employed for each calendar day, or portion thereof, such laborer, worker or mechanic is paid less than the wage rates stipulated in the Prevailing Wage Schedule for any work done under said Contract, by Contractor, or by any Subcontractor under the Contractor.

2.3.3 Complaints of Violations.

2.3.3.1 TWC’s Determination of Good Cause. Upon receipt of

information concerning a violation, TWC will conduct an investigation in accordance with Tex. Gov’t Code, Ch. 2258 and make an initial determination as to whether good cause exists that a violation occurred. Upon making a good cause finding, TWC 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 in accordance with Tex. Gov’t Code § 2258.023, such amounts being subtracted from successive progress payments pending a final decision on the violation.

2.3.3.2 No Extension of Time. If TWC’s determination proves valid that good cause existed to believe a violation had occurred, Contractor is not entitled to an extension of time for any delay arising directly or indirectly from the arbitration procedures.

2.3.3.3 Cooperation with TWC’s Investigation. Contractor shall cooperate with TWC during any investigations hereunder. Such cooperation shall include, but not necessarily be limited to, timely providing the information and/or documentation requested by TWC, which may include certified payroll records on Form WH-347 as promulgated by the U.S. Department of Labor, as may be revised from time to time and in unlocked and unprotected Excel format; and copies of any and all Contract Documents between Contractor and any Subcontractors.

2.3.3.4 Notification to TWC. In the event Contractor or Subcontractor elect to appeal an initial determination made pursuant to Paragraph 2.3.3.1, the Contractor and/or Subcontractor, as applicable, shall deliver notice thereof to TWC.

2.4 Antitrust Claims. The Contractor shall assign to TWC 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. §§ 1 et seq.

2.5 Venue for Suits. The venue for any suit arising from the Contract will be in a court of competent jurisdiction in Travis County, Texas, or as may otherwise be designated in the Supplementary General Conditions.

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

2.7 Royalties, Patents and Copyrights. Refer to the TWC Terms and Conditions which shall control and are incorporated herein by reference.

2.8 State Sales and Use Taxes. Owner qualifies for exemption from certain State and local sales and use taxes pursuant to the provisions of Tex. Tax Code, Ch. 151. Upon request from Contractor, Owner shall furnish evidence of tax exempt status. Contractor may claim exemption from payment of certain applicable State taxes by complying with such procedures as prescribed by the State Comptroller of Public Accounts. Owner acknowledges not all items qualify for exemption. Owner is not obligated to reimburse Contractor for taxes paid on items that qualify for tax exemption.

2.9 Buy America Requirements for Iron and Steel Used in Construction. In accordance with Texas Government Code § 2252.202, all iron or steel products (i.e., rolled structural shapes including wide flange beams and columns, angles, bars, plates, sheets, hollow structural sections, pipe, etc.) shall be produced, manufactured and fabricated in the United States.

3. CONTRACT DOCUMENTS AND BONDS

3.1 Drawings and Specifications.

3.1.1 Copies Furnished. Contractor will be furnished, free of charge, the number of complete sets of the Drawings, Specifications, and Addenda as provided in the Supplementary General Conditions or Special Conditions. Additional complete sets of Drawings and Specifications, if requested, will be furnished at reproduction cost to the entity requesting such additional sets. Electronic copies of such documents will be provided to Contractor without charge.

3.1.2 Ownership of Drawings and Specifications. All Drawings, Specifications and copies thereof furnished by the A/E are and shall remain the property of the A/E They are not to be used on any other project and, with the exception of one (1) contract set for each party to the Contract and electronic versions needed for warranty operations, hard and electronic copies are to be provided to TWC by the A/E following completion of the work.

3.1.3 Interrelation of Documents. The Contract Documents as referenced in the Contract between TWC and the Contractor are complimentary, and what is required by one shall be as binding as if required by all. The interrelation of the specifications, the drawings and the schedules is as follows: The specifications determine the nature and setting of the several materials; the drawings establish the quantities, dimensions and details; and the schedules give the locations. Anything mentioned in the specifications and not shown on the drawings or schedules, or shown on the drawings or schedules and not mentioned in the specifications, must be of like effect as if shown or mentioned in both.

3.1.4 Resolution of Conflicts in Documents. Where conflicts may exist within the Contract Documents, the documents shall govern in the following order: (a) Change Orders, addenda, and written amendments to the Contract; (b) the Contract; (c) Drawings; (d) Specifications (but Specifications shall control over Drawings as to quality of materials and workmanship); and (e) other Contract Documents. Among categories of documents having the same order of precedence, the term or provision that includes the latest date shall control and more specific requirements shall govern over general requirements. Contractor shall notify A/E and ODR for resolution of the issue prior to executing the Work in question.

3.1.5 Contractor’s Duty to Review Contract Documents. In order to facilitate its responsibilities for completion of the Work in accordance with and as reasonably inferable from the Contract Documents, prior to commencing the Work, Contractor shall examine and compare the Contract Documents, information furnished by Owner, relevant field measurements made by Contractor and any visible or reasonably anticipated conditions at the Site affecting the Work. This duty extends throughout the construction phase prior to commencing each particular work activity and/or system installation.

3.1.6 Resolution of Conflicts in Drawings. Should the drawings disagree one with another, or with the specifications, the better quality or greater quantity of work or materials must be performed or furnished. Figures given on drawings govern small-scale drawings.

The “Scope of the Work,” placed in the front part of each Section of the Specifications, is intended to designate the scope and locations of all items of the work included therein, either generally or specifically. It is not intended to limit the Scope of Work should plans, schedules or notes indicate an increased scope. Inadvertent omission of an item from its proper section of the specifications and its inclusion in another section shall not relieve the Contractor of responsibilities for the item specified.

3.1.7 Discrepancies and Omissions in Drawings and Specifications.

3.1.7.1 Promptly report to ODR and to A/E the discovery of any apparent error, omission or inconsistency in the Contract Documents prior to execution of the Work.

3.1.7.2 It is recognized that Contractor is not acting in the capacity of a licensed design professional, unless it is performing as a Design- Build firm.

3.1.7.3 It is further recognized that Contractor’s examination of Contract Documents is to facilitate construction and does not create an affirmative responsibility to detect errors, omissions or inconsistencies or to ascertain compliance with applicable laws, building codes or regulations, unless it is performing as a Design- Build firm or a Construction Manager-at-Risk.

3.1.7.4 When performing as a Design-Build firm, Contractor has sole responsibility for discrepancies, errors, and omissions in the Drawings and Specifications.

3.1.7.5 When performing as a Construction Manager-at-Risk, Contractor has a shared responsibility with A/E for discovery and resolution of discrepancies, errors, and omissions in the Contract Documents. In such case, Contractor’s responsibility pertains to review, coordination, and recommendation of resolution strategies within budget constraints.

3.1.7.6 Contractor has no liability for errors, omissions, or inconsistencies unless Contractor knowingly failed to report a recognized problem to Owner or the Work is executed under a Design-Build or Construction Manager-at-Risk Contract as outlined above. Should Contractor fail to perform the examination and reporting obligations of these provisions, Contractor is responsible for avoidable costs and direct and/or consequential damages.

3.2 Requirement for Record Documents. Contractor shall:

3.2.1 Maintain at the Site one (1) copy of all Drawings, Specifications, Addenda, approved Shop Drawings and Contract Modifications and all Project correspondence. The Contractor must keep current and maintain Drawings and Specifications in good order with postings and markings to record actual conditions of Work and show and reference all changes made during construction. The Contractor must allow TWC and A/E access to these documents.

3.2.2 Maintain the Record Documents including Drawings, Specifications and other materials which reflect the actual field conditions and representations of the Work performed, whether it be directed by addendum, Change Order or otherwise. Make available all records prescribed herein for reference and examination by Owner and its representatives and agents.

3.2.3 Update the Record Documents at least monthly prior to submission of periodic partial pay estimates. Failure to maintain current Record Documents constitutes cause for denial of a progress payment otherwise due.

3.2.4 Prior to requesting final inspection, Contractor shall furnish a copy of its marked-up Record Documents and a preliminary copy of each instructional manual, maintenance and operating manual, parts catalog, wiring diagrams, spare parts, specified written warranties and like publications, or parts for all installed equipment, systems, and like items and as described in the Contract Documents. (Unexecuted samples of the aforementioned documentation may be reviewed by ODR when the absence of substantial completion transactions preclude execution; however, Contractor remains obligated to provide fully executed copies of such materials prior to final payment.)

3.2.5 Once determined acceptable by ODR with input from A/E, provide one (1) reproducible copy and one (1) electronic media copy of all Record Documents, unless otherwise required by the Supplementary General Conditions or Special Conditions.

3.2.6 Contractor shall be responsible for updating the Record Documents for all Contractor initiated documents and changes to the Contract Documents due to coordination and actual field conditions, including RFIs.

3.2.7 A/E shall be responsible for updating the Record Documents for any addenda, Change Orders, A/E supplemental instructions and any other alterations to the Contract Documents generated by A/E or Owner.

3.3 Bonding Requirements.

3.3.1 Construction Bonds. A Bid Bond must be submitted for each and all bids over $25,000.00 in the amount of 5% of the total amount of the Contract being bid, including alternates. In addition, Contractor must tender to TWC, before a Purchase Order is issued, Payment and Performance Bonds in accordance with Texas Government Code, Chapter 2253 as required below, in form and substance satisfactory to TWC.

3.3.2 Bond Requirements. Each bond must be executed by a solvent corporate surety or corporate sureties duly authorized to do business in the State of Texas, acceptable to TWC, and on forms approved by the Attorney General of Texas. Such surety must be in compliance with Texas Government Code, Chapter 2253, and the relevant provisions of the Texas Insurance Code including Texas Insurance Code § 3503.00. If any bond is for more than ten (10) percent of the surety’s capital and surplus, TWC may require certification that the company has reinsured the excess portion with one or more reinsurers authorized to do business in the State. A reinsurer may not reinsure for more than ten (10) percent of its capital and surplus. If a surety upon a bond loses its authority to do business in the State, Contractor shall, within thirty (30) days after such loss, furnish a replacement bond at no added cost to TWC.

3.3.2.1 A Payment Bond is required for a contract in excess of $25,000.00, including any selected alternates. Except for Construction Manager-at-Risk Contracts, where in TWC’s sole discretion and determination, a Payment Bond is acceptable in the amount of the guaranteed maximum price (GMP), the Payment Bond shall be executed in the amount of the Contract Sum and is payable to TWC solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with Contractor or Subcontractors of all claimants supplying labor and material. The form of the bond shall be approved by the Office of the Attorney General.

3.3.2.2 A Performance Bond is required if the Contract Sum reaches or exceeds $100,000 (Both a Performance Bond and a Payment Bond will be required on contracts of $100,000.00 and over). The Performance Bond is for the protection of TWC. Except for Construction Manager-at-Risk Contracts, where in TWC’s sole discretion and determination, a Performance Bond is acceptable in the amount of the guaranteed maximum price (GMP), the Performance Bond must be in the amount of the Contract Sum (total awarded contract), including any selected alternate pricing amounts, to guarantee the faithful performance of the Work in accordance with the Contract Documents. The form of the bond shall be approved by the Office of the Attorney General of Texas. The Performance Bond shall be effective through the Contractor’s warranty period.

3.3.3 Security Bond. The security bond provides protection to Owner if Contractor presents an acceptable guaranteed maximum price (“GMP”) to Owner and 1) fails to execute the GMP; or 2) fails to deliver the required payment and performance bonds within the time period stated below.

3.3.4 When Bonds Are Due.

3.3.4.1 Security bonds are due within fifteen (15) days of signing a Design-Build Contract.

3.3.4.2 Payment and performance bonds are due within fifteen (15) days of Contractor’s receipt of a fully executed GMP on the Contract Sum for a Design-Build project, or within ten (10) days of Contractor’s receipt of a fully executed Contract on competitively bid or competitive sealed proposal projects.

3.3.5 Power of Attorney. Each bond must be accompanied by a valid Power-of-Attorney (issued by the Surety company and attached, signed and sealed, with the corporate embossed seal, to the bond) authorizing the attorney-in-fact who signs the bond to commit the company to the terms of the bond, and stating (on the face of the Power-of-Attorney) the limit, if any, in the total amount for which the attorney is empowered to issue a single bond.

3.3.6 Bond Indemnification. The process of requiring and accepting bonds and making claims thereunder shall be conducted in compliance with Texas Government Code, Chapter 2253. IF FOR ANY REASON A STATUTORY PAYMENT OR PERFORMANCE BOND IS NOT HONORED BY THE SURETY, CONTRACTOR SHALL FULLY INDEMNIFY AND HOLD TWC HARMLESS OF AND FROM ANY COSTS. LOSSES, OBLIGATIONS OR LIABILITIES IT INCURS AS A RESULT.

3.3.7 Furnishing Bond Information. TWC shall furnish certified copies of the Payment Bond and the related Contract to any qualified person seeking copies who complies with Texas Government Code § 2253.026, to the extent this chapter may be applicable to TWC.

3.3.8 Claims on Payment Bonds. Claims on Payment Bonds shall be sent directly to Contractor and its surety in accordance with Texas Government Code § 2253.041, to the extent this chapter may be applicable to TWC. All Payment Bond claimants are cautioned that no lien exists on the funds unpaid to Contractor on such Contract, and that reliance on notices sent to TWC may result in loss of their rights against Contractor and/or its surety. TWC is not responsible in any manner to a claimant for collection of unpaid bills, and accepts no such responsibility because of any representation by any agent or employee.

3.3.9 Payment Claims When Payment Bond Not Required. The rights of Subcontractors regarding payment are governed by Tex. Prop. Code §§ 53.231 – 53.239 when the value of the Contract between TWC and Contractor is less than $25,000.00. These provisions set out the requirements for filing a valid lien on funds unpaid to Contractor as of the time of filing the claim, actions necessary to release the lien and satisfaction of such claim.

3.3.10 Sureties. Sureties must be listed on the United States Treasury’s Listing of Approved Sureties maintained by the Bureau of Financial Management Service (FMS) (http://fiscal.treasury.gov/surety-bonds/list-certified-companies.html), listing companies holding Certificates of Authority as acceptable sureties on Federal Bonds and acceptable reinsurance companies (FMS Circular 570).

4. CONTRACT ADMINISTRATION

4.1 General Administration. Unless otherwise provided for in the Contract Documents, the A/E will provide general administration of the Contract and will be TWC’s representative during construction until final payment. TWC assumes no responsibility for an understanding given or representation made orally by its agents prior to the execution of this Contract, unless such understanding(s) or representation(s) are expressly stated in the Contract. TWC assumes no responsibility for any conclusions or interpretations made by the Contractor. Any failure by the Contractor to become acquainted with available information will not relieve Contractor from responsibility for properly estimating the difficulty or cost of successfully performing the work or mutually agreed changes thereto.

4.1.1 Role of the A/E. The A/E has the authority to act on behalf of TWC to the extent provided for in the Contract Documents, unless otherwise modified by written instrument, which will be provided to the Contractor. The A/E will advise and consult with TWC. TWC’s instructions to the Contractor will generally be issued through the A/E, except that TWC reserves the right to issue instructions directly to the Contractor.

4.1.1.1 Site Visits.

4.1.1.1.1 A/E will make visits to the Site at intervals as provided in the A/E’s Contract with Owner, to observe the progress and the quality of the various aspects of Contractor’s executed Work and report findings to Owner.

4.1.1.1.2 A/E has the authority to interpret Contract Documents and inspect the Work for compliance and conformance with the Contract. Owner retains the sole authority to accept or reject Work and issue direction for correction, removal, or replacement of Work.

4.1.1.2 Clarifications and Interpretations. It may be determined that clarifications or interpretations of the Contract Documents are necessary. Upon direction by the ODR, such clarifications or interpretations will be provided by the A/E consistent with the intent of the Contract Documents. A/E will issue these clarifications with reasonable promptness to Contractor as A/E’s supplemental instruction (“ASI) or similar instrument. If Contractor believes that such clarification or interpretation justifies an adjustment in the Contract Sum or the Contract Time, Contractor shall so notify Owner in accordance with the provisions of Section 6.

4.1.1.3 Limitations on Architect/Engineer Authority. A/E is not responsible for:

4.1.1.3.1 Contractor’s means, methods, techniques, sequences, procedures, safety, or programs incident to the Project, nor will A/E supervise, direct, control or have authority over same;

4.1.1.3.2 The failure of Contractor to comply with laws and regulations applicable to the furnishing or performing the Work;

4.1.1.3.3 Contractor’s failure to perform or furnish the Work in accordance with the Contract Documents; or

4.1.1.3.4 Acts or omissions of Contractor, or any other person or organization performing or furnishing any of the Work.

4.1.2 All instructions affecting the Contract Sum, Contract Time or contract interpretation, must be confirmed expeditiously in writing with copies furnished to the A/E, TWC’s designated representatives, and the Contractor by the party issuing the instruction. No instruction affecting the A/E’s design liability shall be issued without his/her prior written consent.

4.1.3 The A/E shall have the authority to reject work performed by the Contractor which, in the opinion of the A/E, does not meet the requirements of the Contract and to order such work removed and replaced.

4.1.4 Should work be identified by either the A/E and/or TWC’s designated representative as not being in compliance with the Contract Document requirements, such work shall be corrected by the Contractor at his/her expense. The approval of work by either the A/E and/or TWC’s designated representative does not relieve the Contractor from compliance with all requirements of the Contract Documents where such requirements are not judged at the time of observation of the work due to work sequences by the Contractor or the lack of time to judge the performance characteristics of the particular work item.

4.2 Access to and Inspection of the Work.

4.

4.2.1 The Contractor must provide sufficient, safe and proper facilities, including equipment as necessary for safe access, at all reasonable times for observation and/or inspection of the work by the authorized representatives of TWC and the A/E. “Reasonable times” of inspection allow for sufficient monitoring of the quality of materials and installation without substantially impeding the progress of the Work. The A/E and TWC will make periodic visits to the Site to monitor the progress and quality of the Work and the materials and to determine if the Work is proceeding in accordance with the Contract Documents.

4.2.2 The Contractor shall not cover up any Work with finishing materials or other building components prior to an inspection of the Work by the A/E or TWC for approval of the installation.

4.2.2.1 Should corrections of the Work be required for approval, cover up shall be delayed by the Contractor until another inspection can be made and approval of the Work is indicated.

4.2.2.2 Verbal approval to proceed with subsequent operations shall be confirmed to the Contractor in writing by the inspecting party.

4.2.2.3 The Contractor shall be responsible for providing notification of at least five (5) business days to both A/E and TWC of the anticipated need for cover up inspection. Should both A/E and TWC fail to make the necessary inspection within an additional five (5) business day period, the Contractor may proceed with cover up Work, unless TWC makes a written arrangement with the Contractor for additional time in which to complete desired inspections. Contractor is not relieved of responsibility for Work to comply with requirements of the Contract Documents.

4.3 Separate Contracts.

4.3.1 TWC reserves the right to award other contracts in connection with any portion of this Project under these same or substantially similar conditions of the Contract, including those portions related to insurance and waiver of subrogation. TWC reserves the right to perform operations related to the Project with TWC’s own forces.

4.3.2 When separate contracts are awarded for different portions of the Project, “the Contractor” in the Contract Documents in each case shall be the Contractor who signs each separate Contract. This Contractor shall properly connect and coordinate his/her work with the work of other separate Contractors and the General Contractor. If any part of this Contractor’s work depends for proper execution or proper results on the work of any other separate contractor, this Contractor and the General Contractor must inspect and promptly report in writing to the A/E and TWC any discrepancies or defects he/she may find in such other work that render it unsuitable for such proper execution and results. Failure of this Contractor to so inspect and report shall constitute an acceptance of the other Contractor’s work as fit and proper to receive his/her work, except as to defects which may develop in the other separate Contractor’s work after the execution of this Contractor’s work.

4.3.3 Owner shall be reimbursed by Contractor for costs incurred by Owner which are payable to a separate contractor because of delays, improperly timed activities, or defective construction by Contractor. Owner will equitably adjust the Contract by Change Order for costs incurred by Contractor because of delays, improperly timed activities, damage to the Work or defective construction by a separate contractor.

4.3.4 Should any Contractor cause damage to the work or property of any other separate Contractor or the General Contractor on the Project, the Contractor must, upon due notice, endeavor to settle with such other Contractor by agreement. If such separate contractor sues TWC on account of any damage alleged to have been so sustained, TWC shall notify the Contractor who must defend such proceedings and pay all costs in connection therewith, and if any judgment against TWC arises therefrom, the Contractor must pay or satisfy it. The Contractor must afford TWC and/or A/E reasonable opportunity for the introduction and storage of their materials and equipment and the execution of their work and shall properly connect and coordinate his/her work with their work.

4.4 Suspension

4.4.1 Suspension of Work for Cause. TWC may, at any time without prior notice, suspend all or any part of the Work, if after reasonable observation and/or investigation, TWC determines it is necessary to do so to prevent or correct any condition of the Work, which constitutes an immediate safety hazard, or which may reasonably be expected to impair the integrity, usefulness or longevity of the Work when completed.

4.4.1.1 TWC will give Contractor a written notice of suspension for cause, setting forth the reason for the suspension and identifying the Work suspended. Upon receipt of such notice, Contractor shall immediately stop the Work so identified. As soon as practicable following the issuance of such a notice, TWC will initiate and complete a further investigation of the circumstances giving rise to the suspension, and issue a written determination of the findings.

4.4.1.2 If it is confirmed that the cause was within the control of Contractor, Contractor will not be entitled to an extension of time or any compensation for delay resulting from the suspension. If the cause is determined not to have been within the control of Contractor, and the suspension has prevented Contractor from completing the Work within the Contract Time, the suspension is an excusable delay and a time extension will be granted through a Change Order.

4.4.1.3 Suspension of Work under this provision will be no longer than is reasonably necessary to remedy the conditions giving rise to the suspension.

4.4.2 Suspension of Work for TWC’s Convenience. Upon seven (7) days written notice to Contractor, TWC may at any time without breach of the Contract suspend all or any portion of the Work for a period of up to thirty (30) days for its own convenience. TWC will give Contractor a written notice of suspension for convenience, which sets forth the number of suspension days for which the Work, or any portion of it, and the date on which the suspension of Work will cease. When such a suspension prevents Contractor from completing the Work within the Contract Time, it is an excusable delay. A notice of suspension for convenience may be modified by TWC at any time on seven (7) days written notice to Contractor. If TWC suspends the Work for its convenience for more than sixty (60) consecutive days, Contractor may elect to terminate the Contract pursuant to the provisions of the Contract.

4.5 Additional Contract Termination Conditions.

4.5.1 Termination by Contractor. If the Work is stopped for a period of ninety (90) days or more under an order of any court or other public authority having jurisdiction, or as a result of an act of government, such as a declaration of a national emergency making materials unavailable, through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing any of the Work under a contract with the Contractor, then the Contractor shall, upon thirty (30) additional days, provide written notice to TWC and the A/E, terminate the Contractor and recover from TWC payment for all Work executed, but not lost profits on other work or lost business opportunities. If the cause of the Work stoppage is removed prior to the end of the thirty (30) day notice period, the Contractor may not terminate the Contract.

4.5.2 Termination for Cause by TWC.

4.5.2.1 Upon written notice to Contractor and its surety, TWC may, without prejudice to any right or remedy, terminate the Contract and take possession of the Site and of all materials, equipment, tools, construction equipment, and machinery thereon owned by the Contractor under any of the following circumstances:

4.5.2.1.1 Persistent or repeated refusal or failure, except in cases for which extension of time is provided, to supply enough properly skilled workers or proper materials;

4.5.2.1.2 Persistent disregard of laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, including the A/E or TWC’s representatives;

4.5.2.1.3 Persistent failure to so prosecute the Work in accordance with the Contract, and to insure its completion, within the time, or any extension thereof, specified in the Contract;

4.5.2.1.4 Failure to remedy defective work condemned by the A/E or TWC’s representatives;

4.5.2.1.5 Failure to pay Subcontractors, laborers, and material suppliers pursuant to Texas Government Code, Chapter 2251;

4.5.2.1.6 Persistent endangerment to the safety of labor or of the Work;

4.5.2.1.7 Failure to supply or maintain statutory bonds or to maintain required insurance, pursuant to the Contract;

4.5.2.1.8 Any material breach of the Contract; or

4.5.2.1.9 Contractor’s insolvency, bankruptcy, or demonstrated financial inability to perform the Work.

4.5.2.2 Failure of TWC to exercise the right to terminate in any instance is not a waiver of the right to do so in any other instance.

4.5.2.3 Should TWC decide to terminate the Contract under the provisions of Section 4.5.2, it will provide to Contractor and its surety thirty (30) days prior written notice.

4.5.2.4 Should Contractor or its surety, after having received notice of termination, demonstrate to the satisfaction of TWC that Contractor or its surety are proceeding to correct such default with diligence and promptness, upon which the notice of termination was based, the notice of termination may be rescinded in writing by TWC. If so, rescinded, the Work may continue without an extension of time.

4.5.2.5 Should the Contractor or its surety fails, after written notice from TWC to commence and continue correction of such default with diligence and promptness to the satisfaction of TWC within thirty (30) days following receipt of such notice, TWC may arrange for completion of the Work and deduct the cost thereof from the unpaid Contract Sum.

4.5.2.5.1 This amount includes the cost of additional TWC costs such as A/E services, other consultants and contract administration made necessary by such default or neglect.

4.5.2.5.2 TWC will make no further payment to Contractor or its surety unless the costs to complete the Work are less that the Contract balance, then the difference shall be paid to the Contractor or its surety. If such costs exceed the unpaid balance, the Contractor or its surety shall pay the difference to TWC.

4.5.2.5.3 This obligation for payment shall survive the termination of the Contract.

4.5.2.5.4 TWC reserves the right in termination for cause to take assignment of all the Contracts between Contractor and its Subcontractors, vendors, and suppliers. TWC will promptly notify Contractor of the contracts TWC elects to assume. Upon receipt of such notice, Contractor shall promptly take all steps necessary to effect such assignment.

4.5.3 Conversion to Termination for Convenience. In the event that any termination of Contractor for cause under Section 4.5.2 is later determined to have been improper, the termination shall automatically convert to a termination for convenience under Section 4.5.4 and Contractor’s recovery for termination shall be strictly limited to the payments allowable under Section 4.5.4.

4.5.4 Termination for Convenience of TWC. Prior to, or during the performance of the Work, TWC reserves the right, without breach, to terminate the Contract for any reason. Upon such an occurrence, the following procedures will be adhered to:

4.5.4.1 TWC will immediately notify the A/E and the Contractor in writing, specifying the reason for and the effective termination date of the Contract. Such notice may also contain instructions necessary for the protection, storage, or decommissioning of incomplete work or systems, and for safety.

4.5.4.2 Upon receipt of the notice of termination, the Contractor must immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due at that point in the Contract.

4.5.4.2.1 Stop all work.

4.5.4.2.2 Place no further subcontracts or orders for materials or services.

4.5.4.2.3 Terminate all subcontracts for convenience.

4.5.4.2.4 Cancel all material and equipment orders as applicable.

4.5.4.2.5 Take action that is necessary to protect and preserve all property related to the Contract which is in the possession of the Contractor.

4.5.4.3 When the Contract is terminated for TWC’s convenience, Contractor may recover from TWC payment for all Work executed. Contractor may not claim lost profits on other work or lost business.

4.5.5 Settlement on Termination. When the Contract is terminated for any reason, at any time prior to one hundred and eighty (180) days after the effective date of termination, the Contractor must submit a final termination…