26-63 Attachment C BCTRA General Conditions for Road_Bridges and Related Work.pdf

BRAZORIA COUNTY TOLL ROAD

AUTHORITY

GENERAL CONDITIONS

FOR

ROADS, BRIDGES AND RELATED WORK

GENERAL CONDITIONS – 1 – DEFINITION OF TERMS

TABLE OF CONTENTS

Page

TABLE OF CONTENTS

GENERAL CONDITIONS

1. DEFINITION OF TERMS

1.1 Defined Terms

1.2 Terminology

2. PRELIMINARY MATTERS

2.1 Delivery of Contract

2.2 Bonds

2.3 Evidence of Insurance

2.4 Contractor’s Failure to Perform

2.5 Preconstruction Conference; Designation of Authorized Representatives; Notice to Proceed; Project Communication

2.6 Pre-Activity Meeting

2.7 Authority of Engineer/Architect

2.8 Mobilization

2.9 BCTRA Daily Report

3. PAYMENTS

3.1 Calculating the Contract Price

3.2 Periodic Payments

3.3 Acceptance and Final Payment

3.4 Treasurer’s Certification of Funds

4. SCHEDULE AND COMPLETION

4.1 Prosecution of the Work

4.2 Project Schedule

4.3 Time for Completion and Liquidated Damages

4.4 Contractor’s Responsibility for Work

4.5 Partial Utilization

4.6 Substantial and Final Completion and Acceptance of Work

5. CHANGE ORDERS

5.1 Change Order Terms

6. DEFECTIVE WORK AND WARRANTIES

6.1 Repair of Defective Work Before Substantial Completion

6.2 Warranty and Guaranty of Work After Substantial Completion

7. CONTRACTOR’S EXAMINATION OF PROJECT REQUIREMENTS; INTENT

7.1 Contractor Warranties Concerning Investigation of the Project Requirements

7.2 Contractor Waiver of Claims

7.3 Intent of Contract

7.4 Reference Standards

7.5 Reporting and Resolving Discrepancies; Order of Precedence

7.6 Amending and Supplementing Contract

7.7 Reuse of Documents

8. INDEMNIFICATION; INSURANCE

8.1 Indemnification

8.2 Insurance

9. REGULATORY REQUIREMENTS; CONTRACTOR RESPONSIBILITIES

9.1 Self-Performance

9.2 Designation of Key Personnel

9.3 Permits and Licenses

9.4 Taxes

9.5 Public Convenience

9.6 Safety

9.7 Sanitary Provisions

GENERAL CONDITIONS – 2 – DEFINITION OF TERMS

9.8 Environmental Protection

9.9 Cultural Artifacts

9.10 Cooperation of Contractor; Contractor’s Field Superintendent

9.11 Character of Workmen and Equipment

9.12 Protection Against Claims of Subcontractors’ Laborers, Materialmen and Furnishers of Machinery, Equipment and Supplies

9.13 Labor

9.14 Subcontractors

9.15 Progress Meeting

9.16 Submittals

9.17 Shop Drawings and Sample Submittal Procedures

9.18 As-Built Drawings

9.19 Surveying and Reference Points; Layout of Work

9.20 Work Site

9.21 Utility Usage

9.22 Preservation and Restoration of Property

9.23 Conflicts of Interest

9.24 Emergencies

10. MATERIALS; INSPECTION

10.1 Access to Work

10.2 Materials and Workmanship

10.3 Patented Devices, Materials and Processes

10.4 Inspections

10.5 Material Testing

10.6 Materials Provided by BCTRA

10.7 Requests for Substitutions

11. SUBSURFACE AND PHYSICAL CONDITIONS; UTILITIES

11.1 Soils Investigations

11.2 Underground Facilities

11.3 Above Ground Facilities ……………………………………………………………………………..58

11.4 Trenches

12. TERMINATION

12.1 Suspension and Termination of the Work

13. DISPUTE RESOLUTION

13.1 Claims and Disputes

13.2 Subcontractor Pass-Through

13.3 Continuation of Work During Claim or Dispute

14. ADDITIONAL TERMS

14.1 Entire Agreement

14.2 Severability

14.3 No Waiver

14.4 Nondiscrimination

14.5 Notice

14.6 Limitations on BCTRA’s Responsibilities

14.7 Cumulative Remedies

14.8 Survival of Obligations

14.9 Controlling Law

14.10 No Third Party Beneficiaries

14.11 Headings

14.12 Right to Audit

14.13 Assignment

14.14 All Legal Provisions Included

14.15 Immunity

14.16 Change In Name and Nature of Contractor’s Legal Entity

GENERAL CONDITIONS – 3 – DEFINITION OF TERMS

GENERAL CONDITIONS

1. DEFINITION OF TERMS

1.1 Defined Terms.

Whenever used in the Contract and printed with initial capital letters, the terms listed below will have the meanings indicated that are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract include references to identified articles and paragraphs, and the titles of other documents or forms.

1.1.1 Act of God – A natural disaster such as a hurricane officially declared a disaster by any governmental authority.

1.1.2 Addenda – Written or graphic instruments issued prior to the submission of Bids that clarify, correct, or change the Contract.

1.1.3 Additional Work – New or unforeseeable Work, the responsibility for which has not been allocated in the Contract, provided that Engineer/Architect and BCTRA Authorized Representative determine in their sole discretion that such Work is not covered by or included in the Contract.

1.1.4 Applicable Laws – The laws, statutes, ordinances, rules, codes, regulations, permits, land use restrictions, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction over safety, the Project, the Site or Work (including utilities), to the extent they apply to the performance of the Work.

1.1.5 As-Built Drawings – Refers to the set of drawings detailed in Section 9.18.1.

1.1.6 BCTRA – Brazoria County Toll Road Authority.

1.1.7 BCTRA Authorized Representative – The individual authorized by BCTRA to act on behalf of BCTRA in connection with the Project or the individual’s authorized designee.

The BCTRA Authorized Representative shall be named in the BCTRA resolution awarding the Project.

1.1.8 BCTRA BOD – Brazoria County Toll Road Authority Board of Directors.

1.1.9 BCTRA Daily Report – The report referenced in Section 2.9.

1.1.10 BCTRA Indemnified Parties – BCTRA, members of the BCTRA BOD, Brazoria County, the Brazoria County Judge and Brazoria County Commissioners, and BCTRA and Brazoria County’s consultants, officers, managers, representatives, agents, and employees. A “BCTRA Indemnified Party” means any one or more of the BCTRA Indemnified Parties.

1.1.11 BCTRA Treasurer – The individual duly appointed by BCTRA to serve the office of Treasurer for BCTRA.

1.1.12 Bid – The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices and other specified terms for the Work to be performed.

GENERAL CONDITIONS – 4 – DEFINITION OF TERMS

1.1.13 Bid Guarantee – The Bid bond, cashier’s check, or certified check to be made by the Bidder, which is to accompany the Bid as a guaranty of good faith to enter into a written Contract, as permitted by the Bid Documents.

1.1.14 Bidder – The individual or entity who submits a Bid or Proposal directly to BCTRA.

1.1.15 Bid Documents – Documents such as the Invitation for Bids, Instructions to Bidders, Bid Forms and Addenda issued by BCTRA Authorized Representative to assist Bidders with Bid preparation.

1.1.16 Building Wage Rate – Refers to the term as defined in Section 9.13.2.

1.1.17 Certificate of Substantial Completion – A fully executed written notice from Engineer/Architect or BCTRA Authorized Representative to Contractor indicating that the Project and the Work have achieved Substantial Completion.

1.1.18 Change Order – A document that modifies the Contract, which authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Time, duly executed by a BCTRA Authorized Representative, issued on or after the Effective Date of the Contract, in accordance with the Contract and in the form contained in the Contract or provided by BCTRA Authorized Representative.

1.1.19 Claim – A written request directed to Engineer/Architect with a copy to BCTRA Authorized Representative for a determination on certain disagreements as provided in Article 13.

1.1.20 Contract – The entire integrated written agreement between BCTRA and Contractor defining and concerning the Work, which includes the General Conditions, Bid Documents, Bid, Addenda, Drawings, Specifications, Notice of Award, and any other document expressly incorporated in or attached to the Contract. The Contract supersedes all prior negotiations, representations, or agreements, whether written or oral. Some documents provided by BCTRA to the Bidders and Contractor including for example, without limitation, reports and drawings of subsurface and physical conditions, are not part of the Contract. Submittals required by the Contract, including without limitation Shop Drawings, are not part of the Contract.

1.1.21 Contract Price – Amount to be paid by BCTRA to Contractor as full compensation for the proper and timely performance of the Contract and completion of the Work, subject to any additions or deductions as provided in the Contract, and including all applicable taxes and costs.

1.1.22 Contract Time – The number of Days or the date stated in the Contract to achieve Substantial Completion, unless modified by any Change Order.

1.1.23 Contractor – The individual or entity with which BCTRA has contracted for performance of the Work as an independent contractor and not an agent or employee of BCTRA.

1.1.24 Contractor Cost Reimbursement – A method for calculating Change Order Work to be paid on the basis of Contractor’s actual cost of the Work calculated as described in the Contract or as determined in Engineer/Architect’s sole discretion and authorized by

BCTRA.

1.1.25 Contractor Party – Contractor, Subcontractor, Sub-subcontractors of any tier, materialmen and suppliers and each of their directors, members, managers, partners, shareholders, officers, agents, and employees or any one of them.

GENERAL CONDITIONS – 5 – DEFINITION OF TERMS

1.1.26 Day – A calendar day, including Saturdays, Sundays, and legal holidays.

1.1.27 Default – A failure by Contractor described in Section 12.1.2 to perform as required by the Contract, effective upon written notice by BCTRA to Contractor that Contractor is in Default.

1.1.28 Defective Work – Work that is unsatisfactory, faulty, or deficient; that does not meet the manufacturer’s specifications; that does not conform to the Contract; that does not conform to the Warranty in Section 6.2; that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract; or is rejected by Engineer/Architect.

1.1.29 Demobilization – The complete dismantling and removal by Contractor of all Contractor’s operations, Subcontractors, temporary facilities, materials, equipment, personnel and refuse from the Site.

1.1.30 Dispute – Has the meaning set forth under Section 13.1.8.

1.1.31 Drawings – That part of the Contract prepared by or on behalf of the BCTRA that graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor Submittals are not Drawings or part of the Contract.

1.1.32 Effective Date of the Contract – The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two Parties to sign and deliver.

1.1.33 Engineer/Architect – (i) An engineer or architect of record, or (ii) the third party engineer or architect retained by BCTRA and duly and authorized by the BCTRA BOD to act for and on behalf of BCTRA as provided in the Contract. Engineer/Architect shall be named in the Notice to Proceed. Engineer/Architect shall act either directly or through his or her designees.

1.1.34 Field Superintendent – Contractor’s designated on-Site Field Superintendent identified by Contractor, who, once designated, shall not be changed, or assigned materially different job duties, without prior written consent of Engineer/Architect and BCTRA Authorized Representative.

1.1.35 Force Majeure Event – An unforeseeable event that materially affects a party’s performance required by the Contract and is one or more of the following events: (i) Acts of God occurring at the Site; (ii) terrorism, sabotage or other acts of a public enemy; (iii) orders of governmental authorities (including, without limitation, unreasonable or unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work, provided that delay caused by the need to obtain approval from the BCTRA BOD or Brazoria County shall not be construed as unreasonable or unforeseeable); (iv) pandemics and epidemics with mandatory quarantine restrictions issued by orders of governmental authorities applicable to Brazoria County and shown to adversely affect the Work; and (v) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its Subcontractors of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers; provided that the event (a) delays or renders impossible the affected party’s performance of its obligations under the Contract; (b) is beyond the reasonable control of the affected party, not due to its fault or negligence, and was not reasonably foreseeable; and (c) could not have been

GENERAL CONDITIONS – 6 – DEFINITION OF TERMS

prevented or avoided by the affected party through the exercise of commercially reasonable diligence. For purposes of this Section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and other actions of Brazoria County, State or federal authorities in their roles as regulatory agencies.

1.1.36 General Conditions – Refers to all terms and conditions set forth within Brazoria County Toll Road Authority General Conditions for Roads, Bridges and Related Work.

1.1.37 Good Industry Practices – The generally accepted practices, methods, skill, care, techniques, and standards employed by experienced and skilled contractors with respect to the construction of work like the Work and Project described in the Contract.

1.1.38 Hazardous Waste – The term “Hazardous Waste” shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time, or any substance or material identified as hazardous under any state or federal statute governing handling, disposal and/or cleanup of any such substance or material, whichever is more restrictive.

1.1.39 Major Item - An item of work included in the Contract that has a total cost equal to or greater than 5% of the original Contract Price or $100,000, whichever is less. A Major Item at the time of bid will remain a Major Item. An item not originally a Major Item does not become one through the course of the Contract.

1.1.40 Notice of Award – The written notice by BCTRA to the Bidder to whom BCTRA awards the Project stating that upon timely compliance by such Bidder with the conditions precedent listed therein, BCTRA will sign and deliver the Contract.

1.1.41 Notice of Default – A written notice by BCTRA to Contractor that BCTRA determined that Contractor is in Default under Article 12.

1.1.42 Notice of Completion – A written notice from Contractor indicating its contention that it has achieved Substantial Completion; provided, however, that Substantial Completion shall be established solely by a fully executed Certificate of Substantial Completion.

1.1.43 Notice of Suspension – A written notice by BCTRA to Contractor that BCTRA is suspending some or all of the Work as provided in Article 12.

1.1.44 Notice of Termination for Convenience – A written notice from BCTRA to Contractor under Article 12 that BCTRA is terminating the Contract, in whole or in part, or some or all the Work for BCTRA’s convenience and without cause, regardless of whether Contractor may also be in Default.

1.1.45 Notice to Proceed – A written notice given by BCTRA Authorized Representative to Contractor fixing the date on which Contractor shall proceed with the Work and when the Contract Time shall commence to run. The Engineer/Architect shall be named in the Notice to Proceed.

1.1.46 Parties – Means BCTRA and Contractor.

1.1.47 Payment Bond – A surety bond in the amount of the Contract Price, for the protection of all claimants supplying labor, material or equipment in the prosecution of the Work required by the Contract. The form of such bond shall be provided by BCTRA or approved by BCTRA.

GENERAL CONDITIONS – 7 – DEFINITION OF TERMS

1.1.48 Performance Bond – A surety bond in the amount of the Contract Price, as modified by the Contract conditioned upon the faithful performance of the Work in accordance with the Contract. The Performance Bond is solely for the protection of BCTRA. The form of such bond shall be provided by BCTRA or approved by BCTRA.

1.1.49 Prevailing Wage Laws – Refers to the term as defined in Section 9.13.2.

1.1.50 Project – The improvements Contractor is required to complete pursuant to the Contract.

1.1.51 Project Schedule – A schedule pursuant to Section 4.2.

1.1.52 Punch List – A list of minor Work items on the Project, prepared by Engineer/Architect, or prepared by Contractor and approved by Engineer/Architect, that remain to be modified, replaced or completed in accordance with the requirements of the Contract for completion of all the Work.

1.1.53 Purchasing Agent – The Purchasing Agent of Brazoria County, Texas.

1.1.54 Request for Information or RFI – A request made in writing by Contractor when additional information, clarification or interpretation of the Contract is needed. A response to a RFI will be addressed in writing by Engineer/Architect. If Contractor believes that the RFI requires additional Contract Time and/or an adjustment to the Contract Price, Contractor shall follow the Change Order provisions of the Contract including, without limitation, Article 5. The RFI form shall be provided by BCTRA.

1.1.55 Sample – A physical example furnished by Contractor to illustrate and confirm materials, equipment or workmanship to be incorporated into the Work.

1.1.56 Schedule of Submittals – A schedule prepared, maintained and updated at least monthly by Contractor, of required Submittals and the time requirements to facilitate the approved Project Schedule and approvals required by the Contract.

1.1.57 Shop Drawings – Drawings, diagrams, illustrations, schedules, and other data or information required by the Contract, that are specifically prepared or assembled by or for Contractor and reviewed, approved and submitted by Contractor to illustrate the Work, in whole or in part.

1.1.58 Site – The real property indicated in the Contract on which the Work is to be performed and completed including, without limitation, boundaries, rights-of-way and easements, restrictions and such other real property furnished by BCTRA for the use of Contractor in the performance of the Work.

1.1.59 Specifications – That part of the Contract consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto.

1.1.60 Subcontractor – An individual or entity (including vendors, Suppliers, and Subcontractors) who performs or supplies any portion of the Work and has a contract with Contractor or a subcontractor of any tier.

1.1.61 Submittal(s) – Written or graphic information, physical samples prepared and other such materials including, without limitation, Shop Drawings, required by the Contract to be submitted to Engineer/Architect and BCTRA Authorized Representative, that are specifically prepared or assembled by or for Contractor, and reviewed, approved and

GENERAL CONDITIONS – 8 – DEFINITION OF TERMS

submitted by Contractor, to reflect, demonstrate and confirm the materials, equipment and other items Contractor intends to incorporate into the Work.

1.1.62 Substantial Completion – Refers to the term as defined in Section 4.6.2.

1.1.63 Supplier – A manufacturer, fabricator, supplier, distributor, materialmen, or vendor having a direct contract with Contractor or with any Subcontractor of any tier to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.

1.1.64 Termination Costs – Costs that Contractor substantiates, and Engineer/Architect confirms, as being directly caused by and attributable to ceasing the portion of the Work terminated in the Notice of Termination for Convenience and demobilizing from the Site, as applicable, incurred as a result of a Termination for Convenience under Article 12, including without limitation, subcontract cancelation costs, and/or restocking fees but not profit on unperformed Work or subcontractor work.

1.1.65 Underground Facilities – All underground pipelines, sewers, water mains, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, boulders, Hazardous Waste, oilfield equipment, concrete blocks, or other such manmade obstructions, facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone, video or other communication cables, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. Underground Facilities excludes underground soil or other naturally occurring conditions such as sand, silt, clay, and water.

1.1.66 Warranty – The warranties and guarantees from Contractor to BCTRA as required in Article 6 and elsewhere in the Contract.

1.1.67 Warranty Period – Refers to the term as defined in Section 6.2.4 or as extended by Section 6.2.6.

1.1.68 Work – All obligations, duties and responsibilities required, or reasonably inferable as being required, of Contractor pursuant to the Contract including, without limitation, all work, labor, construction, materials, equipment incorporated into the Work, construction equipment, procurement, management, controls, scheduling, coordination, supervision, fabrication, erection, installation, manufacture, delivery, transportation, storage, construction, inspection, and any other services, work or things furnished or used or required to be furnished or used, by Contractor in the successful performance of the Work.

1.2 Terminology.

1.2.1 The following words and terms are not defined but, when used in the Contract, have the indicated meaning.

1.2.1.1 The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition.

1.2.1.2 The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.

GENERAL CONDITIONS – 9 – PRELIMINARY MATTERS

1.2.1.3 The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.

1.2.1.4 Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Contractor is implied.

1.2.2 Unless stated otherwise in the Contract, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract in accordance with such recognized meaning.

2. PRELIMINARY MATTERS

2.1 Delivery of Contract.

Within ten Days after receipt of the Notice of Award and before BCTRA will execute the Contract, Contractor shall furnish and file with BCTRA a signed Contract and the necessary Performance Bond, Payment Bond, Warranty or Maintenance Bond (as required) and Certificates of Insurance and Endorsements, as well as any other documents specified in the Contract.

2.2 Bonds.

The Performance Bond and Payment Bond shall be on the forms prescribed by BCTRA in the Contract, duly executed by a responsible corporate surety listed in the United States Department of the Treasury circular entitled “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,” authorized to do business in the State of Texas and acceptable to BCTRA conditioned upon the faithful performance by Contractor of all requirements of the Contract. Each of the bonds shall be in a sum no less than 100% of the Contract Price. The Performance Bond and the Payment Bond must be accompanied by a valid power of attorney providing evidence that the person signing on behalf of the surety is authorized to so act. Performance and Payment Bonds shall be maintained throughout the Warranty Period. The surety for any bond provided by Contractor waives notice of Change Orders.

No act permitted by BCTRA under the Contract will impair BCTRA’s rights under any bond provided by Contractor.

2.3 Evidence of Insurance.

Prior to commencing any Work but no later than ten Days after receipt of the Notice of Award, Contractor shall submit or cause to be submitted any and all Certificates of Insurance and Endorsements, showing that Contractor has all of the insurance required by the Contract, to the attention of Purchasing Agent or as otherwise required by BCTRA Authorized Representative.

Such insurance shall be provided at the sole cost and expense of Contractor. No Work shall be performed until all evidence of required insurance has been received and approved by the Purchasing Agent.

2.4 Contractor’s Failure to Perform.

If the Bidder to whom BCTRA awards the Project fails to furnish a required Performance Bond, Payment Bond, or Certificates of Insurance and Endorsements as herein provided, or other prerequisites to contracting, BCTRA may rescind its award and acceptance of Contractor’s Bid and make an award to the next lowest responsive and responsible Bidder who shall fulfill every stipulation embraced herein as if the first award were made to it. If this should occur, the Bidder to whom the award was first made shall at the option of BCTRA, be required to pay to BCTRA the difference between its Bid and that of the next lowest responsive and responsible Bidder up to the maximum amount provided in the Bid Guarantee for the Project.

GENERAL CONDITIONS – 10 – PRELIMINARY MATTERS

2.5 Preconstruction Conference; Designation of Authorized Representatives; Notice to Proceed;

Project Communication.

2.5.1 Upon award of Contract and before any Work at the Site is started, a preconstruction conference attended by BCTRA Authorized Representative, Contractor, Engineer/Architect, and others as appropriate will be held to establish a working understanding among the Parties as to the Work and to discuss the schedules referred to herein, procedures for handling Submittals and Shop Drawings, processing applications for payment, and maintaining required records. At this conference, Contractor shall provide: (i) a list of Subcontractors including designated contact names, addresses, email addresses, and phone numbers; (ii) a list including addresses, email addresses and phone numbers of its personnel to contact in the event of an emergency; (iii) a list including addresses, email addresses and phone numbers of its key personnel; (iv) a preliminary schedule in accordance with Article 4;

and (v) any other information that Engineer/Architect or BCTRA Authorized Representative shall reasonably request in relation to the Work or the Project.

2.5.2 At this conference, Contractor shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individual shall have the authority to act on behalf of Contractor.

Further, at this conference, Contractor shall designate, in writing, the Field Superintendent.

2.5.3 Contractor is required to use an administrative electronic record keeping tool as BCTRA may designate, in accordance with procedures provided by BCTRA for all communications with and documentation to BCTRA. BCTRA will provide system login account(s) and may provide training for Contractor personnel. Contractor shall, in addition to any other necessary communications or documentation, update the electronic record with any new or changed information concerning the Project within 24 hours of that information becoming known to Contractor. Contractor must have access to a computer with internet access and a scanner to use the electronic tool.

BCTRA grants Contractor and Contractor personnel access to this electronic tool solely for use in relation to the Work and the Project. Any other use is unauthorized.

2.6 Pre-Activity Meeting.

Prior to the start of Major Item, Contractor, the involved Subcontractor, Engineer/Architect, and BCTRA Authorized Representative shall attend a pre-activity meeting coordinated and organized by Engineer/Architect to discuss the Work to be performed and its scope, schedule, coordination, procedures, submittals, and other administrative issues. Contractor shall provide a work plan for discussion at the pre-activity meeting. The work plan must include an equipment list, staging area information, detailed schedule, and other critical information for the Major Item.

2.7 Authority of Engineer/Architect.

Engineer/Architect shall have authority to determine the acceptable fulfillment of the Contract by Contractor. The written decisions of Engineer/Architect concerning any aspect of the Work, its performance and enforcement of the Contract as provided herein shall be final and binding upon Contractor subject to Section 13.1.1. Such authority includes, without limitation, all questions concerning the quality or acceptability of materials furnished and Work performed, the schedule and rate of progress of the Work and such other questions and determinations as provided in the Contract. Contractor shall promptly comply with instructions from Engineer/Architect; provided, however, that Engineer/Architect’s instructions concern only the results of the Work, and Contractor shall determine and remain solely responsible for all means and methods utilized to perform the Work. Compliance with instructions from and decisions of Engineer/Architect shall be a condition precedent to any payment under the Contract. Notwithstanding Engineer/Architect’s authority, only

GENERAL CONDITIONS – 11 – PAYMENTS

a BCTRA Authorized Representative may approve or execute a Change Order or other amendment to the terms of the Contract.

2.8 Mobilization.

2.8.1 Contractor shall mobilize to the Site and commence Work on the date required in Section 4.3.1. Should Contractor fail to comply with the timeline for mobilization and commencement of Work under the Contract, BCTRA reserves the right to terminate the Contract for Contractor’s failure to perform, and Contractor shall not be entitled to any compensation.

2.8.2 When the Contract basis for compensation is a lump sum or unit prices, no separate or additional compensation will be paid to Contractor for any mobilization activities.

2.9 BCTRA Daily Report.

Contractor shall agree to BCTRA Daily Reports generated by Engineer/Architect in the administrative electronic recordkeeping tool described in Section 2.5.3 concerning Contractor’s Work for each day the Work is in progress. Each BCTRA Daily Report must describe labor and equipment in detail and quantify Contract items of all Work performed that day for which Contractor will be compensated.

3. PAYMENTS

3.1 Calculating the Contract Price.

3.1.1 Where the Contract provides that all or part of the Work is lump sum, the lump sum is fixed and firm and will not be adjusted except through Change Orders as provided in Article 5. For Work paid by lump sum, before the first partial payment Contractor shall submit to BCTRA Authorized Representative a schedule of values allocated to the various portions of the Work, prepared in such form and supported by data to substantiate its accuracy as BCTRA Authorized Representative may require. The schedule must be prepared in such a manner that each Major Item and each subcontracted item of Work is shown as a single line item. This schedule of values, unless objected to by BCTRA Authorized Representative, shall be used as the basis for reviewing Contractor’s applications for payment. The schedule of values may contain separate pay items for bonding and insurance. The schedule of values shall be divided into labor and material for each line item of Work.

3.1.2 Where the Contract provides that all or part of the Work is to be performed based on unit prices, initially the Contract Price will be deemed to include for all unit prices an amount equal to the sum of the unit price for each separately identified unit multiplied by the estimated quantity of each unit as indicated in the Contract. The estimated quantities of units are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of unit price performed by Contractor will be made by BCTRA Authorized Representative. Each unit price includes all of Contractor’s overhead, profit and other costs. A Change Order is required and shall be issued to increase the Contract Price where the estimated units will be exceeded and to decrease the Contract Price where the units were overestimated.

3.1.3 All Work completed and materials furnished under the Contract shall be measured by BCTRA Authorized Representative according to United States standard measures, unless otherwise agreed upon in writing. Where applicable, Contractor shall furnish BCTRA Authorized Representative with tickets evidencing each load of materials. At

GENERAL CONDITIONS – 12 – PAYMENTS

a minimum, the tickets shall indicate gross, tare and net weights for each load, and the location of delivery.

3.1.4 No payment will be made for materials wasted or disposed of in a manner not called for under the Contract. This includes rejected material not unloaded from vehicles, material rejected after it has been placed, and material placed outside of the construction limits. No compensation will be allowed for disposing of rejected or excess material.

3.1.5 BCTRA Authorized Representative may designate any duties or obligations under Section 3.1 to Engineer/Architect.

3.2 Periodic Payments.

3.2.1 Promptly after the first day of each calendar month, BCTRA Authorized Representative will make a current estimate in writing of the materials in-place and complete and the amount of Work properly performed during the preceding calendar month or period, and the value thereof based on the Contract Price contracted for as shown in the Contract. BCTRA Authorized Representative shall include in such estimate a summary of the number of elapsed Calendar Days. If the time consumed is such as to entitle BCTRA to the payment of any liquidated damages, at the BCTRA Authorized Representative’s sole discretion, the sums due Contractor shall be adjusted accordingly by subtracting the amount owed BCTRA. From the total of the amounts so ascertained shall be deducted five percent (5%) to be retained until after the completion of the entire Work to the satisfaction of BCTRA Authorized Representative, and 95% of the amount so ascertained shall be paid to Contractor when audited and approved by BCTRA Treasurer. BCTRA will make payments to Contractor in a timely manner pursuant to Texas Government Code § 2251.021. The BCTRA Authorized Representative’s decision to not subtract liquidated damages from periodic payments shall not bar BCTRA from assessing liquidated damages at the completion of the Project.

3.2.2 Contractor may be required to furnish BCTRA Authorized Representative copies of invoices for all materials purchased for the Project, regardless of the method of compensation.

3.2.3 If Contractor intends to submit requests for payment for stored materials, then BCTRA, at its sole discretion, may pay for actual cost of material stored (less retainage) under the following conditions:

3.2.3.1 Contractor shall apply for and receive advanced written approval from BCTRA Authorized Representative before submitting its request for payment;

3.2.3.2 the intended location must be judged suitable and secure by BCTRA Authorized Representative;

3.2.3.3 the stored material shall be in a bonded warehouse, fully insured as approved by BCTRA;

3.2.3.4 Contractor shall pay all costs related to the storage including loading, unloading, transportation, warehouse rent, and insurance;

3.2.3.5 the quantity and quality of material is inspected by Engineer/Architect or BCTRA Authorized Representative and ascertained to be in compliance with the Contract, paid invoices, and materials list;

GENERAL CONDITIONS – 13 – PAYMENTS

3.2.3.6 Contractor submits in writing to Engineer/Architect and BCTRA Authorized Representative indicating each item requested;

3.2.3.7 BCTRA may pay this sum as a percentage of the corresponding bid item;

3.2.3.8 the requested cost for each listed item is greater than $10,000 or 5% of the overall project cost, whichever is greater; and

3.2.3.9 Contractor submits to BCTRA Authorized Representative an invoice for the materials, issued from the vendor/supplier.

For lump sum contracts with an accepted schedule of values delineating the separate costs associated with labor and materials, then BCTRA, at its discretion, may pay for the listed materials cost up to the percentage held onsite and meeting the above conditions, as verified by Engineer/Architect or BCTRA Authorized Representative.

3.2.4 BCTRA may withhold a sufficient amount or amounts of any payment or payments otherwise due to Contractor, as in the judgment of BCTRA Authorized Representative may be necessary to cover any of the following conditions: (i) payments that may be past due and payable for claims against Contractor or any Subcontractors for labor or materials furnished in connection with the Work on the Project under the Contract; (ii) Defective Work not remedied; (iii) failure of Contractor to make proper payments to Subcontractors or for material or labor; (iv) Contractor has indicated it is unwilling to finish the Work for the Contract Price or BCTRA has a reasonable concern Contractor is unwilling to finish the Work for the Contract Price; (v) damage to the Site, the Work, or another contractor or a third party to the extent caused by Contractor or those under its control; (vi) amounts that may be due BCTRA for claims against Contractor; (vii) failure of Contractor to provide updates on the Project Schedule as required herein;

(viii) payment of site cleanup costs should Contractor fail to respond to written notice regarding cleanup of site; (ix) failure of Contractor to comply with material provisions of the Contract; and (x) liquidated damages.

3.2.5 BCTRA Authorized Representative may designate any duties or obligations under Section 3.2 to Engineer/Architect.

3.3 Acceptance and Final Payment.

BCTRA Authorized Representative shall, as soon as practicable after Contractor’s completion of the Work under the Contract, as verified by BCTRA Authorized Representative, make a final estimate of the amount due Contractor under the provisions of the Contract for final payment and submit same to the BCTRA BOD and Contractor. Upon receipt of the estimate, Contractor shall have 30 Days to review and resolve any disputes it may have regarding the estimated amount of final payment determined by BCTRA Authorized Representative. If Contractor does not dispute the amount for the final payment or fails to provide adequate substantiation for an increased amount within such 30-Day period, or such longer period of time to which the Parties agree in writing, the amount estimated by BCTRA Authorized Representative shall become the binding amount of final payment. Within 30 days after approval of the final payment amount by the BCTRA BOD and BCTRA Treasurer, BCTRA shall pay Contractor the final payment. Approval of the final payment amount by the BCTRA BOD and BCTRA Treasurer is a condition precedent to BCTRA’s obligation to make final payment. All prior partial estimates and payments shall be subject to correction in such final estimate and payment. No payment, whether periodic or final, or approval or acceptance or issuance of a Certificate of Substantial Completion by BCTRA shall be construed to be an approval or acceptance of any Defective Work or improper materials, or a release of Contractor from any contractual obligation or claim for damages by BCTRA. As a condition to final payment, Contractor shall certify under oath that it has paid all labor, materials, equipment and supplies furnished for the Project to Contractor by all persons and firms in the performance of the Contract, GENERAL CONDITIONS – 14 – SCHEDULE AND COMPLETION or will pay identified charges from the proceeds of final payment. Final Payment shall include payment of retainage subject to the BCTRA’s rights to withhold payment under this Contract and the law. BCTRA Authorized Representative may designate any duties or obligations under Section

3.3 to Engineer/Architect.

3.4 Treasurer’s Certification of Funds.

The laws governing the award of contracts by BCTRA require the approval of BCTRA Treasurer and that BCTRA Treasurer certify that funds are, or will be, available for the payment of the obligations created thereunder before such contracts become effective. Despite any provisions in the Contract to the contrary, no change or addition of any character in the Contract that will increase the obligations of BCTRA, or the amount to be paid by BCTRA, shall ever be binding on BCTRA unless and until such changes or additions have been submitted to BCTRA Treasurer and BCTRA Treasurer certifies that funds are, or will be, available for the payment of such obligation.

4. SCHEDULE AND COMPLETION

4.1 Prosecution of the Work.

Contractor shall notify BCTRA Authorized Representative at least 48 hours before beginning or restarting the Work. Contractor shall start the Work at any part of the Project designated by BCTRA Authorized Representative and shall prosecute the Work at as many different points as BCTRA Authorized Representative shall direct. Contractor is solely responsible for the means and methods utilized to perform the Work. In no case shall Contractor’s means and methods deviate from Good Industry Practices or the Contract.

4.2 Project Schedule.

4.2.1 Project Schedule Types.

Baseline Schedule. For all projects, the first approved schedule shall be labeled as the Baseline Schedule. The Baseline Schedule shall demonstrate the sequence of Work and Contract milestone dates for the Project necessary to timely completion of the Work in the Contract Time. BCTRA Authorized Representative shall be provided at least fourteen (14) days to review and approve the Baseline Schedule.

Bar Schedule: Projects $50,000 to $1,000,000. For projects where the Contract Price is greater than $50,000 but does not exceed $1,000,000, the Project Schedule shall be a bar-type schedule and shall be of sufficient detail as determined by BCTRA Authorized Representative to show construction sequence for different items of Work and completion of the Work in the Contract Time. Contractor shall deliver the Project Schedule and all updates to BCTRA in both paper and native electronic form. BCTRA Authorized Representative shall be provided at least fourteen (14) days to review and approve the Baseline Schedule.

Critical Path Method (“CPM”) Schedule: Projects over $1,000,000. For projects where the Contract Price is greater than $1,000,000, the Project Schedule shall be prepared in a Critical Path Method (“CPM”) format and in an electronic scheduling program acceptable to BCTRA Authorized Representative. Contractor shall deliver the Project Schedule and all updates to BCTRA in both paper and native electronic form. The electronic versions of the schedule shall include all information used to prepare the schedule along with all information requested by BCTRA Authorized Representative.

BCTRA Authorized Representative shall be provided at least fourteen (14) days to review and approve the Baseline Schedule.

GENERAL CONDITIONS – 15 – SCHEDULE AND COMPLETION

4.2.2 Schedule. The receipt or approval of any schedules by BCTRA Authorized Representative shall not in any way relieve Contractor of its obligations under the Contract including, without limitation, complying with the Contract Time. Contractor is fully responsible for providing any and all staffing and resources at levels that assure good quality and timely completion of the Work in full accordance with the Contract.

Contractor’s failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the Project Schedule shall not excuse Contractor from performing all Work required for a completed Project within the Contract Time.

The Project Schedule must be received, reviewed, and approved by BCTRA before Contractor may begin Work.

4.2.3 CPM Project Schedule Contents. The CPM schedule provided by Contractor shall comply with the following requirements:

4.2.3.1 The Project Schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities;

and “float time” for all “slack” or “gaps” in the non-critical activities. In the event of a delay in the Project Schedule, any available float time at the time of the delay may be allocated to the party experiencing the delay as needed to mitigate the delay, at BCTRA Authorized Representative’s sole discretion. To the extent Contractor intends to use float, Contractor shall notify BCTRA Authorized Representative of the delay and the need to use float time within 72 hours of the delay. In the absence of a notification by Contractor, BCTRA owns the float.

4.2.3.2 The Project Schedule shall show a breakdown of Work into activities and relationships to the extent required to effectively manage the Work. The Project Schedule shall show the division of the Work into activities and specify the progression from the Notice to Proceed to the end of the Contract Time. Each activity shall include a clear, concise description of the Work, including the phase and location of the Work. The Project Schedule shall clearly identify all staffing and other resources that in Contractor’s reasonable judgment are needed to complete the Work within the Contract Time. The Project Schedule shall clearly state the number of staff to be used on each daily segment of the Work. The Project Schedule shall include sufficient information to review the Work being performed.

4.2.3.3 The Project Schedule shall include appropriate time allowances and constraints for material procurements, including preparation of shop drawings, submittals, fabrication and delivery, known utility relocations, permits, tolling contractor activities, items of interference with Work performance by others, and other activities that may affect the completion of the Contract.

4.2.3.4 Project Schedules indicating early or late completion shall not modify or have any effect on the Contract Time, regardless of whether the Project Schedules are reviewed and/or accepted by Engineer/Architect or BCTRA Authorized Representative.

For purposes of determining liquidated damages, the Contract Time shall control and may only be altered by a duly authorized Change Order.

4.2.4 Project Schedule Updates. Contractor shall continuously update its Project Schedule.

Contractor shall submit an updated and accurate Project Schedule to BCTRA at the time of each monthly progress payment. BCTRA may withhold progress payments or other amounts due under the Contract if Contractor fails to submit an updated and accurate Project Schedule. Upon Engineer/Architect’s or BCTRA Authorized Representative’s request, Contractor shall submit any Project Schedule or updates to Engineer/Architect and BCTRA Authorized Representative in the native electronic format of the software used to create the Project Schedule. Contractor shall also

GENERAL CONDITIONS – 16 – SCHEDULE AND COMPLETION

submit schedules showing a two week detailed look-ahead at weekly (or bi-weekly, as the case may be) meetings conducted with BCTRA.

4.2.5 Acceptance. Acceptance of the schedules by BCTRA or Engineer/Architect will not impose any responsibility on BCTRA or Engineer/Architect for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract.

Acceptance will not interfere with or relieve Contractor from Contractor’s full responsibility for the Project Schedule and Contract Time.

4.2.6 Recovery Schedule.

4.2.6.1 Should any of the following conditions exist, BCTRA may, but is not obligated to, require Contractor to prepare a plan of action and a recovery schedule for completing the Work and achieving all contractual milestones within the Contract Time, which shall be carried out at no additional cost to BCTRA:

a. Contractor’s progress report indicates delays that are, in the opinion of BCTRA, of sufficient magnitude that Contractor is unlikely to complete the Work within the Contract Time; or

b. The Project Schedule shows Contractor to be fifteen Days or more behind the planned critical path for any activities on the critical path at any time during construction of the Work.

4.2.6.2 The recovery schedule shall include proposed revisions to the Project Schedule, demonstrating how Contractor intends to achieve all contractual milestones including Contract completion within the Contract Time. The submission shall also include a narrative describing the actions planned by Contractor to recover the schedule to complete the Work in the Contract Time. Contractor shall submit the recovery schedule within seven Days of BCTRA Authorized Representative’s request. If the recovery schedule is not timely received, in BCTRA’s discretion, Contractor shall not be paid until the recovery schedule is received, reviewed, and accepted by BCTRA.

4.2.6.3 Contractor is responsible for all costs associated with the preparation and execution of the recovery schedule, including any necessary recovery actions, which may include, but are not limited to, providing additional labor, and/or equipment, shift or overtime work, expediting of submittals or deliveries, overlapping of activities or sequencing changes to increase activity concurrence.