6-3A - SAMPLE CONTRACT - AVI BLDG CONSTRUCTION.pdf

THIS IS A SAMPLE CONTRACT FORM ONLY. THE ACTUAL CONTRACT MAY OR MAY NOT CONTAIN THE

PROVISIONS HEREIN, DEPENDING ON THE SCOPE OF SERVICES.

Company Name

Building Construction Services Contract – Department of Aviation

Rev. 2-1-17

Resolution No.

STATE OF TEXAS § BUILDING CONSTRUCTION

§ SERVICES CONTRACT

COUNTY OF DALLAS §

THIS BUILDING CONSTRUCTION SERVICES CONTRACT is made as of the day of , 20 by the following parties to this Contract:

The Owner: CITY OF DALLAS, a Texas municipal corporation, 1500 Marilla, Dallas, Texas 75201.

The Contractor: .

The Project is: .

The Architect is: .

1. CONTRACT DOCUMENTS

A. The Contract Documents consist of this Contract, the City of Dallas General

Conditions for Building Construction (6/25/07 Edition; Rev. 8-28-08; 09-01-09) (hereinafter called the “General Conditions”), other supplementary conditions included by special provisions or addenda, the Project Manual, the Drawings, the Specifications, addenda issued in the course of bidding and prior to execution of the Contract, Amendments (as defined in Article 1 of the

General Conditions) issued after execution of the Contract, the attached Performance and

Payment Bonds, the Contractor’s Bid Proposal, attached hereto as Exhibit A and other exhibits or documents listed in or incorporated by reference into this Contract, the General Conditions, or any special provisions.

B. The Contractor shall perform all of the Work (as defined in Article 1 of the

General Conditions) required by the Contract Documents for the Project. The Contractor further agrees to comply fully with the City of Dallas M/WBE Good Faith Effort Plan and Chapter 15B of the Dallas City Code, as amended (Equal Employment Opportunity Contract Compliance), as well as all applicable employment, non-discrimination, information, and reporting requirements contained in those provisions or as promulgated by the City Manager of the City of Dallas or a designee.

2. TERMS

Defined Terms used in this Contract that are defined in the General Conditions shall have the meanings designated in the General Conditions.

3. CONTRACT TIME; LIQUIDATED DAMAGES

The Contractor agrees to commence the Work under this Contract on a date to be specified in a written notice to proceed from the Director of , or the Director’s designee

(the “Director”). The Contractor shall, subject to Owner-authorized adjustments, achieve completion of all Work under this Contract not later than calendar days after the date of issuance of the written notice to proceed by the Director (the “Contract Time”). The Contractor further agrees to pay liquidated damages which are assessed by the Owner against the Contractor as a result of the Contractor’s failure to Substantially Complete the Work within the Contract

Time in accordance with the Contract Documents. The amount of liquidated damages which may be assessed against the Contractor, subject to the provisions of Paragraph 8.2 of the General

Conditions, is $ .00 per calendar day for each consecutive calendar day that the Work remains uncompleted after the Contract Time stipulated for completion.

4. PERFORMANCE AND PAYMENT BONDS

A. It is mutually agreed that should it appear to the Owner or to the Architect that, at any time during the existence of this Contract or the one-year general warranty given by the

Contractor under the Contract Documents, the surety on the Contractor's Performance or

Payment Bonds (the “Bonds”) has become insolvent, bankrupt, or otherwise financially unable to perform its obligations under the Bonds or under the terms of this Contract, the Owner may demand that the Contractor furnish additional or substitute surety through some approved surety company satisfactory to the Owner; the act of the Owner or the Architect with reference to demanding additional or substitute surety shall never be construed to relieve the original surety of its obligations under the Bonds or this Contract.

B. The Owner may temporarily suspend the Work under this Contract until the additional or substitute surety has been furnished by the Contractor, and the Owner shall in no case be liable to the Contractor for additional compensation or time on account of any temporary suspension of the Work for this reason. Further, addition or substitution of the surety or temporary suspension of the Work under the circumstances of this Section shall not serve as an extension of the Contract Time as set forth in Section 3 or as a waiver of the liquidated damages that may become due under Section 3. The Owner may exercise its right, as provided under the

Contract Documents, to terminate this Contract or take charge of the Work in the event of the refusal or failure of the Contractor to comply with the demands of the Owner with reference to furnishing additional or substitute surety, and the Owner’s decision shall be final.

5. OFFSET

The Owner may, at its option, offset any amounts due and payable under this Contract against any debt (including taxes) lawfully due to the Owner from the Contractor, regardless of whether the amount due arises pursuant to the terms of this Contract or otherwise and regardless of whether or not the debt due to the Owner has been reduced to judgment by a court.

6. CONTRACT SUM

The Contract Sum under this Contract consists of the following:

(i) A lump sum base bid of $

(ii) Alternates $

Total Contract Sum $

7. PROGRESS PAYMENTS

Progress payments of the Contract Sum shall be made in accordance with and subject to the provisions of Paragraphs 9.3 through 9.6 of the General Conditions. Final payment of the remaining balance of the Contract Sum, including any retainage held by the Owner, shall be made in accordance with the provisions of Paragraph 9.9 of the General Conditions and only when the Work has been fully completed and inspected and a final Certificate for Payment has been issued by the Architect and approved by the Owner. Final payment is also subject to other applicable provisions of the Contract Documents. Any portion of the Work to be performed under allowances shall be performed only by duly authorized Change Order or Supplemental

Contract. For purposes of any Change Order or Supplemental Contract, the unit prices contained in the Contractor’s Bid Proposal, attached to and made a part of this Contract, shall be used where applicable.

8. CONFLICT OF INTEREST

A. Contractor and its employees, agents or associates are required to make regular, timely, continual and full disclosures to the Director of all significant outside interests and responsibilities that may give rise to a direct or indirect conflict of interest, including, but not limited to, any and all significant outside interests and responsibilities that could reasonably be expected to impair independence of judgment in Contractor’s performance of all of the services under this Contract. Such disclosures must be made no later than ten (10) days following the event giving rise to the potential or actual conflict of interest for the duration of the Contract term. A potential or actual conflict of interest exists when commitments and obligations to the

City or widely recognized professional norms are likely to be compromised in Contractor’s performance of its duties under this Contract by the existence of Contractor’s other professional relationships, contracts, obligations, or commitments. Failure to disclose such a conflict of interest may result in the City’s immediate termination of this Contract by the City Manager.

B. The following section of the Charter of the City of Dallas shall be one of the conditions, and a part of, the consideration of this Contract, to wit:

“CHAPTER XXII. Sec. 11. FINANCIAL INTEREST OF EMPLOYEE OR OFFICER

PROHIBITED.

(a) No city official or employee shall have any financial interest, direct or indirect, in any contract with the city, or be financially interested, directly or indirectly, in the sale to the city of any land, materials, supplies or services, except on behalf of the city as a city official or employee. Any violation of this section shall constitute malfeasance in office, and any city official or employee guilty thereof shall thereby forfeit the city official’s or employee’s office or position with the city. Any violation of this section, with knowledge, express or implied, of the person or corporation contracting with the city shall render the contract involved voidable by the city manager or the city council.

(b) The alleged violations of this section shall be matters to be determined either by the trial board in the case of employees who have the right to appeal to the trial board, and by the city council in the case of other employees.

(c) The prohibitions of this section shall not apply to the participation by city employees in federally-funded housing programs, to the extent permitted by applicable federal or state law.

(d) This section does not apply to an ownership interest in a mutual or common investment fund that holds securities or other assets unless the person owns more than 10 percent of the value of the fund.

(e) This section does not apply to non-negotiated, form contracts for general city services or benefits if the city services or benefits are made available to the city official or employee on the same terms that they are made available to the general public.

(f) This section does not apply to a nominee or member of a city board or commission, including a city appointee to the Dallas Area Rapid Transit Board. A nominee or member of a city board or commission, including a city appointee to the Dallas Area Rapid

Transit Board, must comply with any applicable conflict of interest or ethics provisions in the state law and the Dallas City Code. (Amend. of 8-12-89, Prop. No. 1; Amend. of 8-12-89, Prop.

No. 15; Amend. of 11-4-14, Prop. Nos. 2 and 9)”

9. GIFT TO PUBLIC SERVANT

City may terminate this Contract immediately if Contractor has offered, or agreed to confer any benefit upon a City employee or official that the City employee or official is prohibited by law from accepting.

For purposes of this section, “benefit” means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law.

Notwithstanding any other legal remedies, City may require Contractor to remove any employee of Contractor from the Services who has violated the restrictions of this section or any similar state or federal law, and obtain reimbursement for any expenditures made as a result of the improper offer, Contract to confer, or conferring of a benefit to a City employee or official.

10. NOTICE OF CONTRACT CLAIM

This Contract is subject to the provisions of Section 2-86 of the Dallas City Code, as amended, relating to requirements for filing a notice of a breach of contract claim against City.

Section 2-86 of the Dallas City Code, as amended, is expressly incorporated by reference and made a part of this Contract as if written word for word in this Contract. Contractor shall comply with the requirements of this ordinance as a precondition of any claim relating to this Contract, in addition to all other requirements in this Contract related to claims and notice of claims.

11. NOTICES

Except as otherwise provided in Section 10, any notice, payment, statement, or demand required or permitted to be given under this Contract by either party to the other may be effected by personal delivery in writing or by mail, postage prepaid. Mailed notices shall be addressed to the parties at the addresses appearing below, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three

(3) days after mailing.

If intended for City, to:

___________, Director

City of Dallas

Department of Aviation

8008 Herb Kelleher Way, LB16

Dallas, Texas 75235

If intended for Contractor, to:

12. EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION

A. Contractor shall not discriminate against any employee or applicant for employment because of race, age, color, ancestry, national origin, place of birth, religion, sex, sexual orientation, gender identity and expression, military or veteran status, genetic characteristics, or disability unrelated to job performance. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during their employment without regard to their race, age, color, ancestry, national origin, place of birth, religion, sex, sexual orientation, gender identity and expression, military or veteran status, genetic characteristics, or disability unrelated to job performance. This action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training, including apprenticeship. Contractor shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213, as amended.

Contractor agrees to post in conspicuous places a notice, available to employees and applicants, setting forth the provisions of this non-discrimination clause.

B. Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, age, color, ancestry, national origin, place of birth, religion, sex, sexual orientation, gender identity and expression, military or veteran status, genetic characteristics, or disability unrelated to job performance.

C. Contractor shall furnish all information and reports required by the City Manager or his designee and shall permit the City Manager or his designee to investigate its payrolls and personnel records which pertain to current professional services contracts with City for purposes of ascertaining compliance with this equal employment opportunity clause.

D. Contractor shall file compliance reports with City as may be required by the City

Manager or his designee. Compliance reports must be filed within the time, must contain information as to the employment practices, policies, programs, and statistics of Contractor, and must be in the form that the City Manager or his designee prescribes.

E. If Contractor fails to comply with the equal employment opportunity provisions of this Contract, it is agreed that City at its option may do either or both of the following:

(1) Cancel, terminate or suspend this Contract in whole or in part;

(2) Declare Contractor ineligible for further City contracts until it is determined to be in compliance.

13. TITLE VI CONTRACT COMPLIANCE (REQUIRED BY THE TEXAS

DEPARTMENT OF TRANSPORTATION)

During the performance of this contract, the Contractor, for itself, its assignees and successors in interest agrees as follows (where applicable):

(1) Compliance with Regulations: The Contractor shall comply with the Regulations relative to nondiscrimination in Federally-Assisted programs of the United States Department of

Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract.

(2) Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment.

The Contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations.

(3) Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.

(4) Information and Reports: The Contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the

Recipient or the Texas Department of Transportation to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information the Contractor shall so certify to the Recipient, or the Texas Department of Transportation as appropriate, and shall set forth what efforts it has made to obtain the information.

(5) Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the Recipient (as defined in the Regulations) shall impose such contract sanctions as it or the Texas Department of Transportation may determine to be appropriate, including, but not limited to: (a) withholding of payments to the Contractor under the contract until the Contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part.

(6) Incorporation of Provisions: The Contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Contractor shall take such action with respect to any subcontract or procurement as the Recipient or the Texas

Department of Transportation may direct as a means of enforcing such provisions including sanctions for non-compliance. Provided, however, that, in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the Contractor may request the Recipient to enter into such litigation to protect the interests of the Recipient, and, in addition, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

14. GENERAL CIVIL RIGHTS PROVISIONS (REQUIRED BY THE FAA)

The Contractor agrees to comply with pertinent statutes, Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision binds the contractor and subtier contractors from the bid solicitation period through the completion of the contract. This provision is in addition to that required of Title VI of the Civil Rights Act of 1964.

15. TITLE VI CLAUSES FOR COMPLIANCE WITH NONDISCRIMINATION

REQUIREMENTS (REQUIRED BY THE FAA)

During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows:

1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts And Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.

2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment.

The contractor will not participate directly or indirectly in the discrimination prohibited by the

Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.

3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Nondiscrimination Acts And Authorities on the grounds of race, color, or national origin.

4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the sponsor or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.

5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non-discrimination provisions of this contract, the sponsor will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:

a. Withholding payments to the contractor under the contract until the contractor complies;

and/or

b. Cancelling, terminating, or suspending a contract, in whole or in part.

6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the sponsor or the Federal

Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the

United States.

Title VI List of Pertinent Nondiscrimination Authorities

During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:

Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin);

49 CFR part 21 (Non-discrimination In Federally-Assisted Programs of The Department of Transportation-Effectuation of Title VI of The Civil Rights Act of 1964);

The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);

Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR part 27;

The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);

Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);

The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the

Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);

Titles II and Ill of the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 - 12189) as implemented by Department of Transportation regulations at 49 CFR parts 37 and 38;

The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123)

(prohibits discrimination on the basis of race, color, national origin, and sex);

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority

Populations and Low-Income Populations, which ensures non-discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;

Executive Order 13166, Improving Access to Services for Persons with Limited English

Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with

Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 7 4087 to 7 4100);

Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).

7. Federal Fair Labor Standards Act (Federal Minimum Wage)

a. All contracts and subcontracts that result from this solicitation incorporate by reference the provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA). with the same force and effect as if given in full text. The FLSA sets minimum wage. overtime pay, recordkeeping, and child labor standards for full and part time workers.

b. The contractor has full responsibility to monitor compliance to the referenced statute or regulation. The contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor - Wage and Hour Division.

8. Occupational Safety and Health Act of 1970

All contracts and subcontracts that result from this solicitation incorporate by reference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text.

Contractor must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. The Contractor retains full responsibility to monitor its compliance and their subcontractor's compliance with the applicable requirements of the Occupational Safety and Health Act of 1970 (20 CFR Part 1910). Contractor must address any claims or disputes that pertain to a referenced requirement directly with the U.S. Department of Labor - Occupational Safety and Health Administration.

16. TERMINATION

Contractor and City acknowledge and agree that the termination provisions set forth in this Contract and the General Conditions shall survive the termination or expiration of the term of this Contract.

17. COUNTERPARTS

This Contract may be executed, including electronically, in one or more counterparts, each of which when so executed shall be deemed to be an original and constitute one and the same instrument. If this Contract is executed in counterparts, then it shall become fully executed only as of the execution of the last such counterpart called for by the terms of this Contract to be executed.

18. CERTIFICATION OF EXECUTION

The person or persons signing and executing this Contract on behalf of Contractor, or representing themselves as signing and executing this Contract on behalf of Contractor, do hereby warrant and certify that he, she or they have been duly authorized by Contractor to execute this Contract on behalf of Contractor and to validly and legally bind Contractor to all terms, performances and provisions herein set forth.

[Remainder of this page left intentionally blank. Signatures appear on the following page.]

19. ENTIRE AGREEMENT

This Contract (with all referenced Contract Documents, exhibits, attachments, and other provisions incorporated by reference) embodies the entire Contract of both parties, superseding all oral or written previous and contemporary agreements between the parties relating to matters set forth in this Contract. This Contract can only be amended by an Amendment as provided in the General Conditions.

EXECUTED as of the day of , 20 , by the Owner, signing by and through its

City Manager, duly authorized to execute same by Resolution No. , adopted by the City

Council on , 20 , and approved as to form by its City Attorney; and by the

Contractor, acting through its duly authorized officials.

OWNER:

APPROVED AS TO FORM: CITY OF DALLAS

LARRY E. CASTO T. C. BROADNAX

City Attorney City Manager

BY___________________________ BY__________________________

Assistant City Attorney Assistant City Manager

CONTRACTOR:

a

BY___________________________

PRINTED

NAME________________________

TITLE ________________________