6. General Conditions - Construction Contracts (1).pdf

General Conditions III-A- 1 Rev. 8/15/21 18-1004-863

CITY OF EL PASO, TEXAS

CONSTRUCTION CONTRACT

GENERAL CONDITIONS

Table of Contents

1.0 TERMS OF CONTRACT AND DEFINITIONS

1.1 Contract and Contract Documents

1.2 Definitions

1.3 Abbreviations

1.4 Conflicting Conditions

1.5 Enumeration of Plans, Specifications & Addenda

2.0 SCOPE OF WORK

2.1 Intent of Contract

2.2 Changes and Alterations

2.3 Differing Site/Concealed Conditions

2.4 Quantities of Estimate

2.5 Change Orders and Claims for Extra Work

2.6 Maintenance and Protection of Traffic

2.7 Additional Instructions and Detail Drawings

2.8 Shop or Setting Drawings

2.9 Conformity with Plans and Specifications

2.10 Use of Premises and Removal of Debris

2.11 Clean Up

2.12 Surveys, Permits and Regulations

2.13 Land and Right-of-Way

3.0 CONTROL OF WORK

3.1 Engineering City Engineer’s Authority/

Owner's Designated Representative

3.2 Construction Management

3.3 Reports, Records and Data

3.4 Cooperation with Utilities

3.5 Cooperation between Contractors

3.6 Inspection

3.7 Acceptance of the Work

4.0 CONTROL OF MATERIALS

4.1 Source of Supply and Quality Requirement

4.2 Contractor's Title of Materials

4.3 "Or Equal" Clause

4.4 Inspection and Testing of Materials

4.5 Rights in and Use of Materials Found on the Work Site

4.6 Handling Materials

4.7 Disposal of Materials outside the Work Site

General Conditions III-A- 2 Rev. 8/15/21

4.8 Unacceptable Materials

5.0 CONTRACTOR'S RESPONSIBILITIES AND LEGAL OBLIGATIONS

5.1 Laws to be observed

5.2 Provisions Required by Law Deemed Inserted

5.3 Patented Devices, Materials and Processes

5.4 Public Convenience and Safety

5.5 Use of Explosives

5.6 Protection of Work and Property

5.7 Protection of Work and Property - Emergency

5.8 Protection of Work and Property - Monitor Wells

5.9 Mutual Responsibility of Contractor

5.10 Indemnification

5.11 Insurance

5.12 Texas Workers' Compensation Requirements

5.13 Contract Security

5.14 Additional or Substitute Bond

5.15 Contractor's Obligations

5.16 Correction of Work

5.17 Warranty of Construction

5.18 Use and Occupancy Prior to Acceptance by Owner

5.19 Contractor's Responsibilities for Utility Property and Services

5.20 Obligation for Temporary Electrical Power

5.21 Environmental Protection

5.22 Texas Pollutant Discharge Elimination System (TPDES) Requirements

5.23 Prevailing Wage Rates and Wage Rate Penalty

5.24 Apprentices

5.25 Apprenticeship Program

6.0 PROSECUTION AND PROGRESS

6.1 Subcontracting

6.2 Notice and Service Thereof

6.3 Progress Schedule

6.4 Limitation of Operations

6.5 Character of Workmen; Methods and Equipment

6.6 Progress Photographs

6.7 Suspension of Work

6.8 Time for Completion and Liquidated Damages

6.9 Right of Owner to Terminate Contract

6.10 Default of Contract

7.0 PAYMENTS

7.1 Construction Schedule and Periodic Estimate

7.2 Progress Payments

7.3 Assignments

7.4 Acceptance of Final Payment Constitutes Release

7.5 Payrolls and Basic Records

General Conditions III-A- 3 Rev. 8/15/21

8.0 DISPUTES AND REMEDIES

8.1 Dispute Resolution

8.2 Governing Law

8.3 Rights and Remedies

8.4 Illegality

9.0 RECORDS/AUDIT

General Conditions III-A- 4 Rev. 8/15/21

CONSTRUCTION CONTRACT

GENERAL CONDITIONS

1.0 TERMS OF CONTRACT AND DEFINITIONS

1.1 Contract and Contract Documents

1.1.1 The Plans, Specifications and Addenda, hereinafter enumerated in Paragraph 1.5 of the General Conditions, shall form part of this contract and the provisions thereof shall be as binding upon the parties hereto as if they were herein fully set forth. The table of contents, titles, headings, running headlines and marginal notes contained herein and in said documents are solely to facilitate reference to various provisions of the contract documents and in no way affect, limit or cast light on the interpretation of the provisions to which they refer.

1.1.2 The specifications, the accompanying plans, special provisions and supplemental agreements are essential parts of this contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to describe and provide for a complete project. In the event that there are differences between the contract documents, the following rules shall govern:

1.1.2.1 Written figured dimensions shall govern over scaled dimensions;

1.1.2.2 General Conditions shall govern over specific provisions;

1.1.2.3 Performance specifications shall govern over design

specifications if they call for specific results;

1.1.2.4 Specifications shall govern over plans; and

1.1.2.5 Special provisions shall govern over both specifications and plans.

1.1.3 Where conflicts/differences exist, the Contractor has a duty to and shall consult with and obtain written clarification from the Design Engineer/Architect.

1.1.4 Any certificates required by a federal agency or other special funding source, and any conditions supplementing these general conditions shall be fully binding on the parties and shall supersede any contradicting provisions contained herein.

1.1.5 The Contractor shall take no advantage of any apparent error or omission in the plans or specifications. In the event the Contractor discovers such an error or omission, the City Engineer shall be promptly notified. The City Engineer will then make such corrections and interpretations as may be deemed necessary for fulfilling the intent of the plans and specifications.

1.2 Definitions

General Conditions III-A- 5 Rev. 8/15/21

1.2.1 The following terms, as used in this contract, are respectively defined as follows:

1.2.1.1 "Contractor" - The person, firm, partnership or corporation who undertakes to perform the work specified in this contract. The Contractor is an independent contractor, and shall be solely responsible for its acts or omissions arising from or relating to its performance of this Agreement. The Contractor is not an employee or agent of the City of El Paso by reason of this Agreement or otherwise.

1.2.1.2 “Contract Time” means the number of consecutive calendar days specified in the contract immediately after the date to commence work issued by Owner in the Notice to Proceed and includes both the time allowed for completion of the work required to achieve Substantial Completion and the time allowed to complete the Remaining Work.

1.2.1.3 “Remaining Work” means the work required by the Contract, but not required for Substantial Completion, that the City Engineer determines has not been satisfactorily completed at the time of Substantial Completion and all maintenance and operating instructions, schedules, guarantees, warranties, bonds, certificates of inspection, marked-up record documents, prevailing wage compliance reports and other documents as required by the Contract. “Remaining Work” may also be referred to as “Punch List” work.

1.2.1.4 "Subcontractor" - A person, firm, partnership or corporation supplying labor and materials, or only labor, for work at the site of the project for and under separate contract or agreement with the Contractor.

1.2.1.5 "Work on/at the Project" - Work to be performed at the location of the project, including the transportation of materials and supplies to or from the location of the project by employees of the Contractor and any Subcontractor.

1.2.1.6 "Substantially Complete" - A project is substantially complete on the date when the construction is sufficiently complete, in accordance with the contract documents, so that the Owner may occupy or utilize the work or designated portion thereof for the use for which it is intended as expressed in the contract documents.

1.3 Abbreviations

Wherever the following abbreviations are used in the contract documents, they are to be construed the same as the respective expressions represented:

A.A.S.H.T.O. American Association of State Highway and Transportation Officials

General Conditions III-A- 6 Rev. 8/15/21

A.C.I. American Concrete Institute A.I.A. American Institute of Architects A.I.S.C. American Institute of Steel Construction A.N.S.I. American National Standards Institute C.B.R. California Bearing Ratio C.R.S.I. Concrete Reinforcing Steel Institute C.Y. or Cu. Yd . Cubic Yard Dia. or Diam. Diameter E.P.A. Environmental Protection Agency F.A.A. Federal Aviation Administration Ft. Foot or Feet In. Inch or Inches Lb. Pound L.F. or Lin. Ft. Linear Foot (Feet) L.S. Lump Sum N.E.C. National Electrical Code N.R.M.C.A. National Ready Mixed Concrete Assoc.

O.S.H.A. Occupational Safety and Health Administration P.C.A. Portland Cement Association P.C.I. Prestressed Concrete Institute S.Y. or Sq. Yd. Square Yard T.D.O.T. Texas Department of Transportation

1.4 Conflicting Conditions

Any provisions in any of the contract documents which may be in conflict or inconsistent with any of the paragraphs in these General Conditions shall be void to the extent of such conflict or inconsistency, except as stated in Paragraph 1.1.

1.5 Enumeration of Plans, Specifications, and Addenda (Revised 12/3/04)

The plans, specifications and addenda which form a part of this contract, as set forth in Paragraph 1.1 of the General Conditions, "Contract and Contract Documents", are attached hereto and incorporated herein by reference.

2.0 SCOPE OF WORK

2.1 Intent of Contract

It is the intent of the contract documents to describe a functionally complete project to be constructed to its completion in every detail of the work described. The Contractor shall furnish all labor, materials, equipment, transportation, and supplies required to complete the work in accordance with the plans, specifications, and terms and conditions of the contract.

2.2 Changes and Alterations

2.2.1 The Contractor further agrees that the Owner may make such changes and alterations as the Owner may see fit, in the line, grade, form, dimensions, plans or materials for the work herein contemplated, or any part thereof, either before or after the beginning of construction without affecting the validity of this contract and the accompanying bond.

General Conditions III-A- 7 Rev. 8/15/21

2.2.2 If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for a claim for damages, or anticipated profits on the work that may be dispensed with. If they increase the amount of work, and the increased work can fairly be classified under the specifications, such increase shall be paid according to the quantity actually done and at the unit price established for such work under this contract;

otherwise, such additional work shall be paid for as provided under Paragraph 2.5, as it relates to extra work.

2.2.3.1 In case the Owner shall make such changes or alterations as shall make useless any work already done or material already furnished or used in said work, then the Owner shall recompense the Contractor for any material or labor so used and for any actual loss occasioned by such change, due to actual expenses incurred in preparation for the work, as originally planned.

2.3 Differing Site/Concealed Conditions

Should the Contractor encounter subsurface or latent conditions at the site or concealed or unknown conditions in an existing structure materially differing from those shown on the plans or indicated in the specifications, the Contractor shall immediately give notice to the Owner's designated representative of such conditions before they are disturbed. The Owner's designated representative will thereupon promptly investigate the conditions, and if he/she finds that they materially differ from those shown on the plans or indicated in the specifications, he/she will at once make such changes in the plans or specifications as he/she may find necessary, any increase or decrease of cost resulting from such changes shall be adjusted in the manner provided in Paragraph 2.5 herein.

2.4 Quantities of Estimate

Wherever the estimated quantities of work to be done and materials to be furnished under this contract are shown in any of the documents, including the proposal, they are given for use in comparing bids and the right is expressly reserved, except as herein otherwise specifically limited, to increase or diminish them as may be deemed reasonably necessary or desirable by the Owner to complete the work contemplated by this contract, and such increase or diminution shall in no way violate this contract, nor shall any such increase or diminution give cause for claims of liability for damages.

2.5 Change Orders and Claims for Extra Work

2.5.1 Without invalidating the contract or the accompanying Payment or Performance Bond and without obtaining the consent of the Surety or Sureties, the Owner may, in accordance with applicable state law, order extra work or make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly. Any changes in the work ordered and approved by the Owner shall become a part of the contract work and shall be covered by the accompanying Payment and Performance Bonds. All the work of the kind bid upon shall be paid for at the price stipulated in the proposal and no claims for any extra work or materials shall be allowed unless the work is ordered in writing by the Owner or Owner's designated representative, acting officially for the

General Conditions III-A- 8 Rev. 8/15/21

Owner, in accordance with applicable state law, and the price is stated in such order. Additional time for change orders or utilities delays, which affect the contractor, shall be considered estimates upon their granting.

The Owner reserves the right to review the actual time utilized by the contractor in the completion of the additional work of the change order at the termination of the project. Owner shall then adjust time granted per change order to reflect the actual time required by the contractor for the completion of each change order.

2.5.2 NO CHANGES IN THE WORK COVERED BY THE APPROVED

CONTRACT SHALL BE MADE WITHOUT HAVING PRIOR WRITTEN

APPROVAL OF THE OWNER OR OWNER'S DESIGNATED

REPRESENTATIVE AS AFORESAID. Charges or credits for the work covered by the approved change shall be determined by one or more, or a combination of the following methods:

2.5.2.1 Unit Bid prices previously approved.

2.5.2.2 An agreed lump sum.

2.5.2.3 The actual cost of:

2.5.2.3.1 Labor, including foreman;

2.5.2.3.2 Materials and supplies, entering permanently into the work;

2.5.2.3.3 Ownership or rental cost of construction plant and

equipment during the time of use on the extra work;

2.5.2.3.4 Power and consumable supplies for the operation of

power equipment;

2.5.2.3.5 Public Liability and Property Damage, Worker’s

Compensation and all other insurances as may be required by law or ordinances, or directed by the Owner or the Owner’s Representative, or by them agreed to, and;

2.5.2.3.6 Social Security, Old Age, Unemployment Contributions and Maintenance Bonds

2.5.2.4 To the cost under subparagraph 2.5.2.3 above, there shall be added a fixed fee to be agreed upon but not to exceed fifteen percent (15%) of the actual cost of the work. The fee shall be compensation to cover the cost of supervision, overhead, bond, profit and any other general expenses.

2.5.3 No claim for extra work or cost shall be allowed unless the same was done in pursuance of a written order of the Owner's designated representative, approved by the Owner, as aforesaid. Upon receipt of a change order cost proposal from the contractor, the owner shall have fourteen (14) calendar days in which to respond to the proposal. When

General Conditions III-A- 9 Rev. 8/15/21 work is performed under the terms of subparagraph 2.5.2.3 above, the Contractor shall furnish satisfactory bills, payrolls and vouchers covering all items of cost and, when requested by the Owner, access to accounts relating thereto.

2.6 Maintenance and Protection of Traffic

2.6.1 The Contractor shall make all necessary precautions to guard against damages to property and injury to persons. The Contractor shall prepare a traffic control plan acceptable to and approved by the Traffic Engineer or his/her representative.

2.6.2 Guidelines for Traffic Control Plans. A plan, drawn to scale and with the following information, is required for any activity which requires the use of the roadway or adjacent pedestrian walkway in conjunction with any street cut permit, building permit, site development permit, drainage development permit, special privilege permit, or any roadway construction.

2.6.2.1 Activity location, right-of-way, and curb lines of the street or pedestrian walkway sought to be closed or blocked.

2.6.2.2 Area of street or pedestrian walkway to be closed

2.6.2.3 Proposed detour routes.

2.6.2.4 Location and type of all barricades, signals, signs, cones, and other warning devices

2.6.2.5 The times of the day, and the total number of days, the applicant seeks to block the streets or Pedestrian walkway.

2.6.2.6 The construction zone traffic control design and plans shall conform to the specifications and principles of the "Texas Manual of Traffic Control Devices", Part VI 1980 Edition, latest revision, issued by the Texas Department of Transportation.

2.6.3 Traffic control plans will be submitted to the Engineering Department Traffic

Division for approval. Any work performed on streets or pedestrian walkways, without an approved traffic control plan, will be stopped and may be subject to any penalties as per the El Paso Municipal Codes.

2.6.4 The Contractor shall put up and maintain in good condition, sufficient warning lights at night and suitable barricades and other devices necessary to protect the public. In case the Contractor fails or neglects to take such precautions, the Owner shall notify and allow the contractor four hours in which to install or restore to working order all devices necessary to protect the public. If the Contractor does not comply, the Owner shall install lights and barricades and the cost of the work shall be charged to the Contractor.

Such action by the Owner does not relieve the Contractor of any liability incurred under these specifications or the contract.

2.6.5 The Contractor will be held responsible for all damage to the work due to

General Conditions III-A- 10 Rev. 8/15/21 failure of barricades, signs and lights to protect it, and when damage is incurred, the damaged portion shall be immediately removed and replaced by Contractor at his own cost and expense. The Contractor's responsibility for maintenance of barricades, signs and lights shall not cease until the date of issuance to Contractor of City's certificate of substantial completion of the project.

2.6.6 Description: These specifications shall govern for the handling of traffic around and through the area during all phases of construction and the furnishing of all barricades, flags, flagmen and other essentials necessary to complete this work as required on the plans and in this specification.

2.6.7 Barricades, Flags, Warning Signs, etc.: Barricades, flags, warning signs, etc., shall conform to specifications given in the latest edition of the Texas Manual on Uniform Traffic Control Devices, Part VI, issued by the Texas State Department of Highways and Public Transportation, hereinafter called the manual, a copy of which is on file in the office of the Traffic Engineer, Engineering Department, City of El Paso.

2.6.8 Sequence of Operations: Sequence of operations shall be called for on the approved plans by the Traffic Engineer.

2.6.9 Before removal of barricades and other traffic control signs, the Contractor shall notify the Traffic Engineer of the Contractor's intent. Advance warning shall be given in sufficient time to permit the Director to install traffic control devices (striping, signs, etc.) before any street is reopened to traffic.

2.6.10 Payment: Payment for the furnishings of barricades, flags, flares, warning signs, flagmen and other incidentals and inconveniences necessary for the accomplishment of the work and objectives stated herein will not be made directly. The cost of such devices, if any, should be included in the amount bid, but not as a separate line item.

2.7 Additional Instructions and Detail Drawings

2.7.1 The Contractor will be furnished additional instructions and detail drawings as necessary to carry out the work included in the contract. The additional drawings and instructions thus supplied to the Contractor will coordinate with the contract documents and will be so prepared that they can be reasonably interpreted as part thereof. The Contractor shall carry out the work in accordance with the additional detail drawings and instructions.

The Contractor and the Owner's designated representative will prepare jointly:

2.7.2 A schedule fixing the dates at which special detail drawings will be required, such drawings, if any to be furnished by the Owner's designated representative in accordance with said schedule; and A schedule fixing the respective dates for the submission of shop drawings, the beginning of manufacture, testing and installation of materials, supplies and equipment, and the completion of the various parts of the work; each sum schedule to be subject to change from time to time in accordance with the progress of the work.

General Conditions III-A- 11 Rev. 8/15/21

2.8 Shop or Setting Drawings

2.8.1 The Contractor shall submit promptly to the Owner's designated representative five (5) copies of each shop or setting drawings prepared in accordance with the schedule predetermined in accordance with Paragraph

2.7 herein. After examination of such drawings by the Owner's designated representative and the return thereof, the Contractor shall make such corrections to the drawings as have been indicated and shall furnish the Owner's designated representative a minimum of four (4) sets.

2.8.2 The Contractor shall, nevertheless, be responsible for the accuracy of such drawings and for their conformity to the plans and specifications, unless he/she notifies the Owner's designated representative in writing of any deviations at the time he/she furnishes such drawings.

2.9 Conformity with Plans and Specifications

2.9.1 All work performed and all materials furnished shall conform to the lines, grades, cross sections, dimensions, and material requirements, including tolerances, shown on the plans or indicated in the specifications.

2.9.2 Plan dimensions and contract specification values are to be considered as the target values to be strived for and complied with as the design values from which any deviations are allowed. It is the intent of the specifications that the materials and workmanship shall be uniform in character and shall conform as nearly as possible to the prescribed target value or the middle portion of the tolerance range. The purpose of the tolerance range is to accommodate occasional minor variations from the median zone that are unavoidable for practical reasons. When either a maximum and minimum value or both are specified, the production and processing of the material and the performance of the work shall be so controlled that material or work will not be preponderantly of borderline quality or dimension.

2.9.3 In the event the City Engineer finds the materials furnished, work performed, or the finished product not in conformance with the plans and specifications but that acceptable work has been produced, the City Engineer shall then make a determination as to whether the work shall be accepted and remain in place. In this event, the City Engineer will document the basis of acceptance by contract modification which will provide for an appropriate adjustment in the contract price for such work or materials necessary to conform to his determination.

2.9.4 In the event the City Engineer finds the materials or the finished product in which the materials are used are not in conformance with the plans and specifications, and have resulted in an unsatisfactory or unacceptable product, the work or materials shall be removed and replaced or otherwise corrected by and at the expense of the Contractor in a manner satisfactory to the City Engineer.

2.10 Use of Premises and Removal of Debris

General Conditions III-A- 12 Rev. 8/15/21

2.10.1 The Contractor expressly undertakes at his/her own expense:

2.10.1.1 To take every precaution against injuries to persons or damage to property;

2.10.1.2 To store his/her apparatus, materials, supplies and equipment in such orderly fashion at the site of the work as will not unduly interfere with the progress of his/her work or the work of any other contractors;

2.10.1.3 To place upon the work or any part thereof only such loads as are consistent with the safety of that portion of the work;

2.10.1.4 To clean up frequently all refuse, rubbish, scrap materials and debris caused by his/her operations, to the end that at all times the site of the work shall present a neat, orderly and workmanlike appearance;

2.10.1.5 Before final payment to remove all surplus material, false-work temporary structures, including foundations thereof, plant of any description and debris of every nature resulting from his/her operations, and to put the site in a neat, orderly condition;

2.10.1.6 To affect all cutting, fitting or patching of his/her work required to make the same to conform to the plans and specifications and except with the consent of the Owner's designated representative, not to cut or otherwise alter the work of any other contractor.

2.11 Clean Up

The Contractor shall throughout the life of the contract keep his work and storage areas free of accumulations of waste materials, rubbish, trash, and debris. Before final inspection of the work, all waste and surplus material, trash, rubbish, debris, and equipment shall be removed from the project site, material site, and other areas occupied by him in connection with the work. All areas shall be left in a neat and presentable condition.

2.12 Surveys, Permits and Regulations

2.12.1 The Owner will establish horizontal and vertical control only. The

Contractor must furnish all additional stakes for the layout and construction of the project.

2.12.2 The work to be done shall be staked out by the Contractor from line and grade control stakes furnished by the Owner or Owner's designated representative. Only the minimum number of control stakes will be furnished by the Owner or Owner's designated representative to define the lines and grades to be used by the Contractor in laying out the work.

2.12.3 The Contractor shall give the Owner at least thirty six (36) hours notice in writing before requiring that control stakes be set out.

General Conditions III-A- 13 Rev. 8/15/21

2.12.4 The Contractor must satisfy himself before commencing work as to the meaning or correctness of all control stakes or marks, and no claims will be considered by the Owner for or on account of any alleged inaccuracies, unless the Contractor notifies the Owner thereof in writing before commencing the work thereon.

2.12.5 The Contractor will be held responsible for the preservation of all such control stakes and marks in their position, and in case any of them are lost or destroyed, all expenses incurred by the Owner in replacing same shall be charged against the Contractor and paid for by him/her before the completion and final acceptance of the work.

2.12.6 The Contractor shall procure and pay for all applicable permits, licenses, and approvals necessary for the execution of the contract. Fees for permits issued by the City's Department of Building Services will be waived for work done at facilities owned or managed by the Owner. Fees, licenses, and permits pertaining to the collection, transport, and disposal of waste materials from the project shall be paid by the Contractor.

2.12.7 The Contractor shall comply with all laws, ordinances, rules, orders and regulations relating to performance of the work, the protection of adjacent property and the maintenance of passage-ways, guard fences, lateral supports or other protective facilities.

2.13 Land and Right-of-Way

2.13.1 Prior to the start of construction, the Owner shall obtain all land and right-of-way necessary for the carrying out of and completion of work to be performed under this contract.

2.13.2 The Owner's designated representative must be notified twenty-four (24) hours in advance of any work involving the placement of curbs, pavement or storm sewers on City right-of-way.

3.0 CONTROL OF WORK

3.1 City Engineer's Authority/Owner's Designated Representative

3.1.1 The City Engineer shall give all orders and directions contemplated under this contract and specifications relative to the execution of the work. The City Engineer shall determine the amount, quality, acceptability and fitness of the several kinds of work and materials which may arise in relation to said work and the construction thereof. The City Engineer’s estimates and decisions shall be final and conclusive except as herein otherwise expressly provided. In case any questions shall arise between the parties hereto relative to this contract or specifications, the determination or decision of the City Engineer shall be a condition precedent to the right of the Contractor to receive any money or payment for work under this contract affected in any manner or to any extent by such question. The City Engineer shall decide the meaning and intent of any portion of the specifications and of any plans or drawings where the same may be found obscure or be in dispute. Any differences or conflicts in regard to their work which may arise between the

General Conditions III-A- 14 Rev. 8/15/21

Contractor under this contract and other contractors performing the work for the Owner shall be adjusted and determined by the City Engineer.

3.1.2 The City Engineer may designate, in writing, an Architect/Engineer or another competent agent to act as his/her representative in the exercise of the authority of the City Engineer as set forth in this clause.

3.2 Construction Management

3.2.1 Authority and Duties of the Construction Engineer:

As the direct representative of the City Engineer, the Construction Engineer has immediate charge of the engineering details of each construction project and is responsible for the administration and satisfactory completion of the project.

3.2.2 Duties of the Inspector:

Inspectors employed by the City of El Paso Engineering Department will be authorized to inspect all work done and materials furnished. Such inspection may extend to all or any part of the work and to the preparation, fabrication, or manufacture of the materials to be used. The Inspector will not be authorized to alter or waive the provisions of the contract. The Inspector will not be authorized to issue instructions contrary to the plans and specifications, or to act as foreman for the Contractor; however, the Inspector shall have the authority to reject work or materials until any questions at issue can be referred to and decided by the City Engineer.

3.3 Reports, Records and Data

The Contractor shall submit to the Owner or Owner's designated representative such schedule of quantities and costs, progress schedules, payrolls, reports, estimates, records and other data as the Owner or Owner's designated representative may request concerning work performed or to be performed under this contract.

3.4 Cooperation with Utilities

3.4.1 It is strongly recommended that the Contractor visit and familiarize himself with the project site prior to submitting bids.

3.4.2 The Contractor shall coordinate the construction schedule with all utilities and all other affected agencies.

3.4.3 The Contractor shall, at no additional cost to the Owner, be responsible for the replacement of any above or below ground utility lines damaged from any of the Contractor's operation during the period of the contract. The Contractor shall comply with all federal, state and local governmental rules, regulations, laws and ordinances governing any work done under this section.

3.4.4 The Contractor will notify all utility parties affected, and endeavor to have all necessary adjustments of the public or private utility fixtures, pipelines, and

General Conditions III-A- 15 Rev. 8/15/21 other appurtenances within or adjacent to the limits of construction, made as soon as practicable.

3.4.5 Water lines, gas lines, wire lines, service connections, water and gas meter boxes, water and gas valve boxes, light standards, cableways, signals, and all other utility appurtenances within the limits of the proposed construction that are to be relocated or adjusted are to be moved by the owners at their expense, unless otherwise provided in the contract.

3.4.6 It is understood and agreed that the Contractor has considered in the bid all of the permanent and temporary utility appurtenances in their present or relocated positions as shown on the plans and that no additional compensation will be allowed for any delays, inconvenience, or damage sustained due to any interference from the said utility appurtenances or the operation of moving them.

NOTE: The technical specifications will indicate various utility items, some of which are to be relocated or adjusted by the utility owner and others that are to be relocated or adjusted by the Contractor.

3.5 Cooperation between Contractors

The Contractor shall coordinate his/her operations with those of other contractors.

Cooperation will be required in the arrangement for the storage of materials and in the detailed execution of the work. The Contractor, including his/her subcontractors, shall keep informed of the progress and the detail work of other contractors and shall notify the Owner's designated representative immediately of lack of progress or defective workmanship and/or materials on the part of other contractors. Failure of the Contractor to keep informed of the work progressing on the site and failure to give notice of lack of progress or defective workmanship by others shall be construed as acceptance by him/her of the status of the work as being satisfactory for proper coordination with his/her own work.

3.6 Inspection

3.6.1 The authorized representative and agents of the City, State or Federal agencies, if applicable, shall be permitted to inspect all work, materials, payrolls, records of personnel, invoices of materials and other relevant data and records.

3.6.2 Additionally, authorized representatives and agents of the City, State or

Federal agencies, if applicable, shall be permitted to interview any personnel performing work on behalf of or in relation to the project, including but not limited to, workers on the job site.

3.7 Acceptance of the Work

3.7.1 Partial Acceptance – If at any time during the prosecution of the project, the Contractor substantially completes a unit or distinct portion of the project, such as a structure, and intersection or a section of road or pavement, the Contractor may request the City Engineer to make a final inspection of the unit or portion of the project. If the City Engineer finds upon

General Conditions III-A- 16 Rev. 8/15/21 inspection that the unit or portion of the project has been satisfactorily completed in compliance with the contract, he may accept that unit or portion of the project as being completed provided that the Contractor shall remain responsible for completion of any Remaining Work of such unit or portion of the project. Units or portions of the project eligible for the partial acceptance allowed in this paragraph shall be identified specifically in the contract documents as eligible for partial acceptance. Such partial acceptance shall in no way void or alter any of the terms of the Contract.

3.7.2 Final Acceptance – Upon due notice from the Contractor of completion of the entire project, the City Engineer shall make an inspection. If all construction provided for and contemplated by the contract is found to be completed to the City Engineer’s satisfaction then that inspection shall constitute the final inspection and the City Engineer shall notify the contractor in writing of final acceptance effective as of the date of the final inspection.

3.7.3 Remaining Work after Substantial Completion. If the City Engineer determines that the work required by the Contract is Substantially Complete during an inspection conducted pursuant to Sections 3.7.1 or 3.7.2, the Contractor shall be notified of that determination and the City Engineer shall determine if there is Remaining Work. A list of Remaining Work shall be issued only by the City Engineer and only after the City Engineer has certified Substantial Completion. The City Engineer shall give the Contractor the necessary instructions for correction or completion of the Remaining Work, and the Contractor shall immediately comply with and execute such instructions within the Contract Time. Upon completion of the Remaining Work, another inspection shall be made that shall constitute the final inspection, provided the Remaining Work has been completed to the satisfaction of the City Engineer. If the remaining work has been completed to the satisfaction of the City Engineer, the City Engineer shall make the final acceptance and notify the Contractor in writing of this acceptance as of the date of final inspection.

3.7.3.1. Default for failure to Complete Remaining Work In the event the

Contract Time expires before the Remaining Work is completed to the satisfaction of the City Engineer, the Owner may provide notice to the Contractor that the Remaining Work shall be completed by Contractor to the satisfaction of the City Engineer within ten consecutive calendar days from the date of such notice. The failure of the Contractor to satisfactorily complete the Remaining Work within the ten days shall entitle to Owner to declare Contractor in default and thereafter terminate the Contract. The ten-day notice provided under this paragraph shall not be construed as adding any time to the Contract Time and is a time period solely for the purposes of providing notice of default.

3.7.4 Application for Final Payment. After the Contractor has completed all

Remaining Work to the satisfaction of the City Engineer and delivered all maintenance and operating instructions, schedules, guarantees, warranties, bonds, certificates of inspection, marked-up record documents and other documents as required by the Contract, and after the City Engineer has indicated that the work is acceptable, as provided in Section 3.7, Contractor

General Conditions III-A- 17 Rev. 8/15/21 may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied by all documentation called for in the Contract, together with complete and legally effective releases or waivers (satisfactory to the Owner) of all liens arising out of or filed in connection with the work on the project. In lieu thereof, as approved by Owner, Contractor may furnish receipts or leases in full from suppliers, subcontractors and laborers along with an affidavit of contractor that the releases and receipts include all labor, services, material and equipment for which a lien could be filed and that all payrolls material and equipment bills and other indebtedness connected with the work for which Owner or owner’s property might in any be responsible, have been paid otherwise satisfied; and consent of the surety, if any to final payment.

3.7.5 Final Payment and Acceptance. If the City Engineer determines that the work has been completed and the Contractor’s other obligations under the Contract have been fulfilled, the City Engineer shall, within ten days after receipt of the final application for payment, indicate in writing the City Engineer’s recommendation of payment and present the application to Owner for payment. Thereupon the City Engineer shall prepare a Certificate of Final Completion. Otherwise, City Engineer shall return the application to Contractor indicating in writing the reasons for refusing to recommend final payment. Contractor shall make the corrections identified in the City Engineer’s refusal to recommend final payment. Thirty days after presentation to Owner of the application and accompanying documentation, with the City Engineer’s recommendation and notice of acceptability of the work, the amount recommended by Engineer shall become due and payable by Owner to Contractor.

4.0 CONTROL OF MATERIALS

4.1 Source of Supply and Quality Requirement

4.1.1 The materials used on the work shall meet all quality requirements of the contract. In order to expedite the inspection and testing of material, the Contractor shall notify the Owner's designated representative of his proposed sources of materials prior to delivery.

4.1.2 At the option of the Owner's designated representative, materials may be approved at the source of supply before delivery is started. If it is found after trial that sources of supply for previously approved materials do not produce specified products, the Contractor shall furnish materials from other sources.

4.2 Contractor's Title of Materials

No materials or supplies for the work shall be purchased by the Contractor or by any subcontractor subject to any chattel mortgage or under a conditional sale contract or other agreement by which an interest is retained by the seller. The Contractor warrants that he/she has good title to all materials and supplies used by him/her in the work, free from all liens, claims or encumbrances. PROVIDED, HOWEVER, NOTHING IN THIS PARAGRAPH SHALL PREVENT THE CITY FROM

EXERCISING ALL LIEN RIGHTS THE CITY MAY HAVE IN GOODS PURCHASED

General Conditions III-A- 18 Rev. 8/15/21

BY THE CONTRACTOR WHICH ARE IDENTIFIED TO THE CONTRACT.

4.3 "Or Equal” Clause

Whenever a material, article or piece of equipment is identified on the plans or in the specification by reference to manufacturer's or vendor's name, trade names, catalog numbers, etc., it is intended merely to establish a standard; and any material, article or equipment of other manufacturers and vendors which will perform adequately the duties imposed by the general design will be considered equally acceptable provided the material, article or equipment so proposed is, in the opinion of the Owner or Owner's designated representative, of equal substance and function. It shall not be purchased or installed by the Contractor without the Owner or Owner's designated representative's written approval.

4.4 Inspection and Testing of Materials

4.4.1 All materials and equipment used in the construction of the project shall be subject to adequate inspection and testing in accordance with accepted standards as designated by the Owner or Owner's designated representative. The Owner or Owner's designated representative shall have the right at all reasonable times to observe and test the work.

4.4.2 Contractor shall make necessary arrangement and provide proper facilities and access for such observation and testing at any location wherever work is in preparation or progress, including but not limited to, access to the project site, shops or yards where materials may be prepared or stored, and the Contractor shall provide space at the project site for safe storage and proper curing of test specimens.

4.4.3 Contractor shall ascertain the scope of any observation which may be contemplated by Owner or Owner's designated representative and shall give at least twenty-four (24) hours advance notice to the project inspector of any required laboratory work, and as to the time each part of the work will be ready for such observation.

4.4.4 Owner or Owner's designated representative may reject any work found to be defective or not in accordance with the contract documents, regardless of the stage of its completion or the time or place of discovery of such errors, and regardless of whether Owner's designated representative has previously accepted the work through oversight or otherwise. If any work should be covered without approval or consent of the Owner, it must, if requested by Owner or Owner's designated representative, be uncovered for examination at Contractor's expense.

4.4.5 In the event that any part of the work is being fabricated or manufactured at a location where it is not convenient for Owner or Owner's designated representative to make observations of such work or require testing of said work, then in such event, owner or owner's designated representative may require Contractor to furnish Owner or Owner's designated representative with certificates of inspection, testing or approval made by persons competent to perform such tasks at the location where that part of the work is being manufactured or fabricated. All such tests will be in accordance

General Conditions III-A- 19 Rev. 8/15/21 with the methods prescribed by the American Society for Testing and Materials or such other applicable organization as may be required by law or the contract documents.

4.4.6 All geotechnical and materials testing will be paid for by the Owner. The

Contractor will be assessed (billed) for any item(s) tested that did not meet the requirements set forth by the Owner or the Owner's designated representative. Payment for the tests will be made by the Owner and billed directly to the Owner by the laboratory. The Contractor shall be responsible for payment of overtime charges of any testing laboratory personnel or City Inspectors and any standby time of any testing laboratory personnel. Overtime charges of any testing laboratory personnel or City Inspectors and any standby time of any testing laboratory personnel shall be charged to the Contractor on an as accrued basis, and shall be deducted from the next application for payment made by the Contractor.

4.4.7 If any work which is required to be inspected, tested or approved, is covered up without written approval or consent of the Owner or Owner's designated representative, it must, if requested by the Owner or Owner's designated representative, be uncovered for observation and testing at the Contractor's expense.

4.4.8 The cost of all such inspections, tests and approvals shall be borne by the

Contractor unless otherwise provided herein. Any work which fails to meet the requirements of any such tests, inspections or approval, and any work which does not meet the requirements of the contract documents, shall be considered defective. Such defective work shall be corrected at the Contractor's expense.

4.4.9 Neither observations by the Owner or Owner's designated representative, nor inspections, tests or approval made by Owner, Owner's designated representative or other persons authorized under this agreement to make such inspections, tests or approvals shall relieve the Contractor from his obligation to perform the work in accordance with the requirements of the contract documents.

4.5 Rights In and Use of Materials Found on the Work Site

4.5.1 The Contractor with the approval of the City Engineer may use on the project such stone, gravel, sand, or other material determined suitable by the City Engineer, as may be found in the excavation. The Contractor shall replace at his own expense with other acceptable material all of that portion of the excavation material so removed and used which was needed for use in the embankments, backfills, approaches, or otherwise. The Contractor shall not excavate or remove any material from within the project location which is not within the grading limits without written authorization from the City Engineer.

4.5.2 The term "select material", specified on the drawings and/or technical specifications, generally indicates that original material has to undergo some processing in order to satisfy the requirements. Processing may

General Conditions III-A- 20 Rev. 8/15/21 involve screening or blending with other material, in order to meet gradation requirements.

4.6 Handling Materials

All materials shall be handled in such manner as to preserve their quality and fitness for the work and all precautions and requirements shall be exercised, throughout transportation, loading, storage, process, application and installation.

4.7 Disposal of Materials Outside the Work Site

Unless otherwise specified, the Contractor shall make his own arrangements for disposing of waste and excess materials outside the work site and shall pay all costs incurred thereto. The Contractor shall comply with all federal, state and local governmental rules, regulations, laws and ordinances concerning such disposal of waste and excess materials. The Contractor shall dispose of waste materials on designated routes to/and sites approved by the City Engineer, or his designated representative.

4.8 Unacceptable Materials

All materials not conforming to the requirements of the specifications shall be considered as unacceptable and will be rejected and shall be removed by the Contractor immediately from the site of the work. Rejected material shall not be used until the defects have been corrected and approved by the City Engineer.

5.0 CONTRACTOR'S RESPONSIBILITIES AND LEGAL OBLIGATIONS

5.1 Laws to be observed

5.1.1 The Contractor shall keep fully informed of all federal, state, and local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged or employed on the work, or which any way affect the conduct of the work.

5.1.2 HE SHALL AT ALL TIMES OBSERVE AND COMPLY WITH ALL SUCH

LAWS, ORDINANCES, REGULATIONS, ORDERS AND DECREES; AND

SHALL PROTECT, DEFEND AND INDEMNIFY THE CITY OF EL PASO

AND ITS REPRESENTATIVES AGAINST ANY CLAIM OR LIABILITY

ARISING FROM OR BASED ON THE VIOLATION OF ANY SUCH LAW,

ORDINANCE, REGULATION, ORDER, OR DECREE, WHETHER BY THE

CONTRACTOR OR THE CONTRACTOR'S EMPLOYEES.

5.2 Provisions Required by Law Deemed Inserted

Each and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein and the contract shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party the contract shall forthwith be physically amended to make such insertion or correction.

General Conditions III-A- 21 Rev. 8/15/21

5.3 Patented Devices, Materials and Processes

5.3.1 The…