ESBD_416274_1746479913730_TSUS UGCs (final).pdf

Last Revision Date: 12.01.2021

Uniform General Conditions for

Construction Projects

2022 Uniform General Conditions for The Texas State University System

Table of Contents

Article 1. Definitions

Article 2. Wage Rates and Other Laws Governing Construction

Article 3. General Responsibilities of Owner and Contractor

Article 4. Historically Underutilized Business (HUB) Subcontracting Plan

Article 5. Bonds and Insurance

Article 6. Construction Documents, Coordination Documents, and Record Documents

Article 7. Construction Safety

Article 8. Quality Control

Article 9. Construction Schedules

Article 10. Payments

Article 11. Changes

Article 12. Project Completion and Acceptance

Article 13. Warranty and Guarantee

Article 14. Suspension and Termination

Article 15. Dispute Resolution

Article 16. Certification of No Asbestos Containing Material or Work

Article 17. Miscellaneous

Article 1. Definitions

Unless the context clearly requires another meaning and except as otherwise provided in the (respective)

Agreement, the following terms have the meaning assigned herein.

1.1 Agreement when referred to as “the Agreement” means the Agreement between the Owner and the

Contractor (including the Construction Manager at Risk or Design-Build firm) which incorporates these Uniform General Conditions into the Contract Documents for the Project.

1.2 Applicable Law (Applicable Laws) means all laws, statutes, ordinances, regulations, guidelines or requirements now in force or hereafter enacted by any applicable local, state or federal governmental authority relating to or affecting the Project or arising from this Agreement, including, if and as applicable (1) the United States Occupational Safety and Health Administration requirements (and similar state and local governmental statutes and requirements in the jurisdiction in which the Project is located), (2) the Americans with Disabilities Act requirements (and similar state and local governmental statutes and requirements in the jurisdiction in which the Project is located), (3) requirements under Title VII of the Civil Rights Act of 1964, as amended, (4) the Age

Discrimination in Employment Act requirements, (5) requirements of the Fair Labor Standards Act and applicable state wage and hour laws, (6) applicable local, state, and published Texas State

University System or System Components building codes and requirements, (7) storm water, street, utility and other related infrastructure requirements, and (8) requirements related to the use, removal, storage, transportation, disposal and remediation of hazardous materials.

1.3 Application for Payment means Contractor’s monthly partial invoice for payment that includes any portion of the Work that has been completed for which an invoice has not been submitted and performed in accordance with the requirements of the Contract Documents. The Application for

Payment accurately reflects the progress of the Work, is itemized based on the Schedule of Values, bears the notarized signature of Contractor, and shall not include subcontracted items for which

Contractor does not intend to pay.

1.4 Application for Final Payment means Contractor’s final invoice for payment that includes any portion of the Work that has been completed for which an invoice has not been submitted, amounts owing to adjustments to the final Contract Sum resulting from approved change orders, and release of remaining Contractor’s retainage.

1.5 Architect/Engineer (A/E) means a person registered as an architect pursuant to Tex. Occ. Code

Ann., Chapter 1051, as a landscape architect pursuant to Tex. Occ. Code Ann., Chapter 1052, a person licensed as a professional engineer pursuant Tex. Occ. Code Ann., Chapter 1001, and/or a firm employed by Owner or Design-Build firm to provide professional architectural or engineering services and to exercise overall responsibility for the design of a Project or a significant portion thereof, and to perform the contract administration responsibilities set forth in the Contract.

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

1.7 Baseline Schedule means the initial time schedule prepared by Contractor for Owner’s information and acceptance that conveys Contractor’s and Subcontractors’ activities (including coordination and review activities required in the Contract Documents to be performed by A/E and ODR), durations, and sequence of work related to the entire Project to the extent required by the Contract

Documents. The schedule clearly demonstrates the critical path of activities, durations, float, and necessary predecessor conditions that drive the end date of the schedule. The Baseline Schedule shall not exceed the time limit current under the Contract Documents.

1.8 Certificate of Final Completion means the certificate issued by A/E that documents, to the best of

A/E’s knowledge and understanding, Contractor’s completion of all Contractor’s Punchlist items and pre-final Punchlist items, final cleanup and Contractor’s provision of Record Documents, operations and maintenance manuals, and all other Close-Out documents required by the Contract

Documents.

1.9 Change Order means a written modification of the Contract between Owner and Contractor, signed by Owner, Contractor and A/E.

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

1.11 Close-out Documents mean the product brochures, submittals, product/equipment maintenance and operations instructions, manuals, and other documents/warranties, record documents, affidavit of payment, release of lien and claim, and as may be further defined, identified, and required by the

Contract Documents.

1.12 Construction Documents mean the Drawings, Specifications, and other documents issued to build the Project and that describe the scope and quality of the Project and the materials, supplies, equipment, systems, and other elements required for construction of the Work that are acceptable to the Owner. Construction Documents become part of the Contract Documents when listed in or otherwise incorporated into the Agreement or any Change Order.

1.13 Construction Manager-at-Risk, in accordance with Tex. Educ. Code § 51.782, means a sole proprietorship, partnership, corporation, or other legal entity that assumes the risk for construction, rehabilitation, alteration, or repair of a facility at the contracted price as a general contractor and provides consultation to Owner regarding construction during and after the design of the facility.

1.14 Contract means the entire agreement between Owner and Contractor, including all of the Contract

1.15 Contract Date is the date when the agreement between Owner and Contractor becomes effective.

1.16 Contract Documents mean those documents identified as a component of the agreement (Contract) between Owner and Contractor. These may include, but are not limited to, Drawings;

Specifications; General Conditions and Special Conditions; and all pre-bid and/or pre-proposal addenda.

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

1.18 Contract Time means the period between the start date identified in the Notice to Proceed with construction and the Substantial Completion date identified in the Notice to Proceed or as subsequently amended by a Change Order.

1.19 Contractor means the individual, corporation, limited liability company, partnership, firm, or other entity contracted to perform the Work, regardless of the type of construction contract used, so that the term as used herein includes a Construction Manager-at-Risk or a Design-Build firm as well as a general or prime Contractor. The Contract Documents refer to Contractor as if singular in number.

1.20 Contractor-Designed Work means that portion of the Work in a contract, other than a Design-Build

Contract, for which the Contract Documents require the Contractor to provide professional services by a person licensed or registered under Title 6 of the Texas Occupations Code in order to carry out the Contractor’s responsibilities for its completion of that specified portion of the Work.

1.21 Date of Commencement means the date designated in the Notice to Proceed for Contractor to commence the Work.

1.22 Day means a calendar day unless otherwise specifically stipulated. A business day means a calendar day other than a weekend day or a national or state holiday.

1.23 Design-Build means a project delivery method in which the detailed design and subsequent construction is provided through a single contract with a Design-Build firm; a team, partnership, or legal entity that includes design professionals and a builder. The Design-Build Project delivery shall be implemented in accordance with Tex. Educ. Code § 51.780.

1.24 Drawings mean that product of A/E or such other design professional which graphically depicts the Work.

1.25 Final Completion means the date determined and certified by A/E and Owner on which the Work is fully and satisfactorily complete in accordance with the Contract.

1.26 Final Payment means the last and final monetary compensation made to Contractor for any portion of the Work that has been completed and accepted for which payment has not been made, amounts owing to adjustments to the final Contract Sum resulting from approved change orders, and release of Contractor’s retainage.

1.27 Historically Underutilized Business (HUB) pursuant to Tex. Gov’t Code, Chapter 2161, means a business that is at least 51% owned by an Asian Pacific American, a Black American, a Hispanic

American, a Native American and/or an American Woman; is an entity with its principal place of business in Texas; and has an owner residing in Texas with proportionate interest that actively participates in the control, operations, and management of the entity’s affairs.

1.28 Insurance Requirements in the Special Conditions means any insurance requirements expressly set forth in the Special Conditions which supplement or replace the insurance requirements set out in

Article 5.

1.29 Notice to Proceed means written document informing Contractor of the dates beginning Work and the dates anticipated for Substantial Completion.

1.30 Open Item List means a list of work activities, Punchlist items, changes or other issues that are not expected by Owner and Contractor to be complete prior to Substantial Completion.

1.31 Ordinary Diligence means the observations of the plans, specifications, or other design documents or the improvement to real property furnished by the Owner or its licensed design professionals that a contractor would make in the reasonable preparation of a bid or fulfillment of its scope of work (as applicable) under normal circumstances. Ordinary diligence does not require that the contractor engage a person licensed or registered under Title 6, Occupations Code, or any other person with specialized skills except for Contractor-Designed Work or a Design-Build Contract.

1.32 Owner means the Board of Regents of The Texas State University System, acting through the responsible entity of The Texas State University System or one of its institutions (Components) as identified in the Agreement as Owner.

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

Contract.

1.34 Project means all activities necessary for realization of Owner’s desired building or other structure including all ancillary and related work as further described in the Contract Documents. This includes design, contract award(s), execution of the Work itself, work by Owner’s forces and/or other contractors and fulfillment of all Contract and warranty obligations.

1.35 Progress Assessment Report (PAR) means the monthly compliance report to Owner verifying compliance with the HUB subcontracting plan (HSP).

1.36 Proposed Change Order (PCO) means a document that informs Contractor of a proposed change in the Work and appropriately describes or otherwise documents such change including

Contractor’s response of pricing for the proposed change.

1.37 Punchlist means a list of items of Work to be completed or corrected by Contractor before Final

Completion. The Punchlist(s) indicates items to be finished, remaining Work to be performed, or

Work that does not meet quality or quantity requirements as required in the Contract Documents.

1.38 Record Documents mean the drawing set, Specifications, and other materials maintained by

Contractor that documents all addenda, A/E’s Supplemental Instructions, Change Orders, and postings and markings that record the “as-constructed” conditions of the Work and all changes made during construction. Record Documents is distinguishable from “Record Drawings” which, if required by the Contract Documents, are prepared by the A/E as part of its Construction

Administration Services and reflect the on-site changes the CM noted in the “As-Built” drawings.

1.39 Request for Information (RFI) means a written request by Contractor directed to A/E or ODR for a clarification of the information provided in the Contract Documents or for direction concerning information necessary to perform the Work that may be omitted from the Contract Documents.

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

Work.

1.41 Schedule of Values means the detailed breakdown of the cost of the materials, labor, and equipment necessary to accomplish the Work as described in the Contract Documents, submitted by

Contractor for approval by Owner and A/E.

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

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

1.44 Special Conditions mean the documents containing terms and conditions which may be unique to the Project and identified in the Agreement as the “Special Conditions of the Contract” for the

Project (or simply as the “Special Conditions”). Special Conditions are a part of the Contract

Documents and have precedence over the Uniform General Conditions.

1.45 Specifications mean the written product of A/E or such other design professional that establishes the quality and/or performance of products utilized in the Work and processes to be used, including testing and verification for producing the Work.

1.46 Subcontractor means a person or a business entity that has an agreement with or through the

Contractor to perform part of the Work or to provide services, materials, or equipment for use in the Work. The term Subcontractor includes what is commonly referred to as a “trade contractor” and a “supplier” (who furnishes materials or equipment only) and Sub-Subcontractors, except to the extent clearly not applicable in the context of its use in the Contract Documents. The term

Subcontractor does not include the A/E or any person or entity hired directly by the Owner for design or construction services. The term “Sub-subcontractor” refers to a trade contractor, subcontractor, or supplier contracting under or directly with a Subcontractor or another Sub-subcontractor (of any tier).

1.47 Submittal Register means a list provided by Contractor of all items to be furnished for review and approval by A/E and Owner and as identified in the Contract Documents including anticipated sequence and submittal dates.

1.48 Substantial Completion means, except as otherwise expressly provided by the Agreement or the

Special Conditions, the date determined and certified by Contractor, A/E, and Owner when the

Work, or a designated portion thereof, is sufficiently complete, in accordance with the Contract, so as to be operational and fit for the use intended.

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

1.50 Unilateral Change Order (ULCO) means a Change Order issued by Owner without the complete agreement of Contractor, as to cost and/or time.

1.51 Work means the administration, procurement, materials, equipment, construction, and all services necessary for Contractor, and/or its agents, to fulfill Contractor’s obligations under the Contract.

1.52 Work Progress Schedule means the continually updated time schedule prepared and monitored by

Contractor that accurately indicates all necessary appropriate revisions as required by the conditions of the Work and the Project while maintaining a concise comparison to the Baseline

Schedule.

1.53 Working Day means Monday through Friday (other than New Year’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Eve, and Christmas Day) and those Saturdays on which critical path Work has been “regularly scheduled” to be performed or which had been previously scheduled with the Owner’s written consent.

Article 2. Wage Rates and Other Laws Governing Construction

2.1 Environmental Regulations. Contractor shall conduct activities in compliance with Applicable

Law, including but not limited to all laws and regulations and other requirements of the Contract relating to the environment and its protection at all times. Unless otherwise specifically determined, Owner is responsible for obtaining and maintaining permits related to stormwater run-off.

Contractor shall conduct operations consistent with stormwater run-off permit conditions.

Contractor is responsible for all items it brings to the Site, including hazardous materials, and all such items brought to the Site by its Subcontractors and suppliers, or by other entities subject to direction of Contractor. Contractor shall not incorporate hazardous materials into the Work without prior approval of Owner and shall provide an affidavit attesting to such in association with request for Substantial Completion inspection.

2.2 Wage Rates. Contractor shall not pay less than the wage scale of the various classes of labor as shown on the prevailing wage schedule provided by Owner in the bid or proposal specifications.

The specified wage rates are minimum rates only. Owner is not bound to pay any claims for additional compensation made by any Contractor because the Contractor pays wages in excess of the applicable minimum rate contained in the Contract. The prevailing wage schedule is not a representation that qualified labor adequate to perform the Work is available locally at the prevailing wage rates.

2.2.1 Notification to Workers. Contractor shall post the prevailing wage schedule in a place conspicuous to all workers on the Project Site and shall notify each worker, in writing, of the following as they commence work on the Contract: the worker’s job classification, the established minimum wage rate requirement for that classification, as well as the worker’s actual wage. The notice must be delivered to and signed in acknowledgement of receipt by the worker and must list both the wages and fringe benefits to be paid or furnished for each classification in which the worker is assigned duties. When requested by Owner, Contractor shall furnish evidence of compliance with the Texas Prevailing Wage Law (Tex.

Gov’t Code, Chapter 2258) and the addresses of all workers.

2.2.1.1 Consistent with the foregoing, pursuant to Tex. Gov’t Code § 2258.024, Contractor shall keep on site, true and accurate records showing the name and occupation of each worker employed by the Contractor or Subcontractors and the actual per diem wages paid to each worker. The record shall be open to inspection by the ODR and the Owner’s agents at all reasonable hours for the duration of the contract.

2.2.1.2 Contractor shall submit a copy of each worker’s wage-rate notification to ODR with the application for progress payment for the period during which the worker was engaged in activities on behalf of the Project.

2.2.1.3 With each application for progress payment. Contractor shall make available upon request certified payroll records, including from subcontractors of any tier level, on Form WH-347 as promulgated by the U.S. Department of Labor, as may be revised from time to time and in unlocked and unprotected Excel format, along with copies of any and all Contract Documents between Contractor and any

Subcontractors. Pursuant to Tex. Penal Code §§ 37.02 and 37.10, Employees of

Contractor and subcontractors, including all tier levels, shall be subject to prosecution for submitting certified payroll records that contain materially false information.

2.2.1.4 The prevailing wage schedule is determined by Owner in compliance with Tex.

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

2.2.1.5 Contractor is responsible for determining the most appropriate wage for a particular skill in relation to similar skills or trades identified on the prevailing wage schedule. In no case, shall any worker be paid less than the wage indicated for laborers.

2.2.1.6 Pursuant to Tex. Labor Code § 214.008 (Misclassification of Workers; Penalty), the Owner requires Contractor and all Subcontractors properly classify individuals as Employees or Independent Contractors.

2.2.2 Penalty for Violation. Contractor, and any Subcontractor, will pay to the State a penalty of sixty dollars ($60) for each worker employed for each day, or portion thereof, that the worker is paid less than the wage rates stipulated in the prevailing wage schedule.

2.2.3 Complaints of Violations.

2.2.3.1 Owner’s Determination of Good Cause. Upon receipt of information concerning a violation, Owner will conduct an investigation in accordance with Tex. Gov’t

Code, Chapter 2258 and make an initial determination as to whether good cause exists that a violation occurred. Upon making a good cause finding, Owner will retain the full amounts claimed by the claimant or claimants as the difference between wages paid and wages due under the prevailing wage schedule and any supplements thereto, together with the applicable penalties, such amounts being subtracted from successive progress payments pending a final decision on the violation.

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

2.2.3.3 Cooperation with Owner’s Investigation. Contractor shall cooperate with Owner during any investigations hereunder. Such cooperation shall include, but not necessarily be limited to, timely providing the information and/or documentation requested by Owner, which may include certified payroll records on Form WH-

347 as promulgated by the U.S. Department of Labor, as may be revised from time to time and in unlocked and unprotected Excel format; and copies of any and all

Contract Documents between Contractor and any Subcontractors.

2.2.3.4 Notification to Owner. In the event Contractor or Subcontractor elect to appeal an initial determination made pursuant to Section 2.2.3.1, the Contractor and/or

Subcontractor, as applicable, shall deliver notice thereof to Owner.

2.3 Venue for Suits. The venue for any suit arising from the Contract will be in a court of competent jurisdiction in Travis County, Texas.

2.4 Licensing of Trades. Contractor shall comply with all applicable provisions of State law related to license requirements for skilled tradesmen, contractors, suppliers and or laborers, as necessary to accomplish the Work. In the event Contractor, or one of its Subcontractors, loses its license during the term of performance of the Contract, Contractor shall promptly hire or contract with a licensed provider of the service at no additional cost to Owner.

2.5 Royalties, Patents, and Copyrights. Contractor shall pay all royalties and license fees, defend suits or claims for infringement of copyrights and patent rights, and shall hold Owner harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract

Documents, or where the copyright violations are contained in Drawings, Specifications or other documents prepared by Owner or A/E. However, if Contractor has reason to believe that the required design, process, or product is an infringement of a copyright or a patent, Contractor shall be responsible for such loss unless such information is promptly furnished to A/E.

2.6 State Sales and Use Taxes. Owner qualifies for exemption from certain State and local sales and use taxes pursuant to the provisions of Tex. Tax Code, Chapter 151. Upon request from Contractor, Owner shall furnish evidence of tax-exempt status. Contractor may claim exemption from payment of certain applicable State taxes by complying with such procedures as prescribed by the State

Comptroller of Public Accounts. Owner acknowledges not all items qualify for exemption. Owner is not obligated to reimburse Contractor for taxes paid on items that qualify for tax exemption.

Article 3. General Responsibilities of Owner and Contractor

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

3.1.1 Preconstruction Conference. Prior to, or concurrent with, the issuance of Notice to Proceed with construction, a conference will be convened for attendance by Owner, Contractor, A/E and appropriate Subcontractors. The purpose of the conference is to establish a working understanding among the parties as to the Work, the operational conditions at the

Project Site, and general administration of the Project. Topics include communications, schedules, procedures for handling Shop Drawings and other submittals, processing

Applications for Payment, maintaining required records and all other matters of importance to the administration of the Project and effective communications between the Project team members.

3.1.2 Owner’s Designated Representative. Prior to the start of construction, Owner will identify

Owner’s Designated Representative (ODR), who has the express authority to act and bind

Owner to the extent and for the purposes described in the various Articles of the Contract, including responsibilities for general administration of the Contract.

3.1.2.1 Unless otherwise specifically defined elsewhere in the Contract Documents, ODR is the single point of contact between Owner and Contractor. Notice to ODR, unless otherwise noted, constitutes notice to Owner under the Contract.

3.1.2.2 All directives on behalf of Owner will be conveyed to Contractor and A/E by ODR in writing.

3.1.2.3 Owner will furnish or cause to be furnished, free of charge, the number of complete sets of the Drawings, Specifications, and addenda as provided in the Agreement or

Special Conditions.

3.1.2.4 The ODR may establish the protocol for planning, scheduling, and documenting progress meetings with provisions for absence of various project team members that have a key role in these duties.

3.1.3 Owner Supplied Materials and Information.

3.1.3.1 Owner will furnish to Contractor those surveys describing the physical characteristics, legal description, limitations of the Site, Site utility locations, and other information used in the preparation of the Contract Documents.

3.1.3.2 Owner will provide information, equipment, or services under Owner’s control to

Contractor with reasonable promptness.

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

3.1.5 Limitation on Owner’s Duties.

3.1.5.1 Owner will not supervise, direct, control or have authority over or be responsible for Contractor’s means, methods, technologies, sequences or procedures of construction or the safety precautions and programs incident thereto. Owner is not responsible for any failure of Contractor to comply with laws and regulations applicable to the Work. Owner is not responsible for the failure of Contractor to perform or furnish the Work in accordance with the Contract Documents. Except as provided in Section 2.5, Owner is not responsible for the acts or omissions of

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

3.1.5.2 Owner will not take any action in contravention of a design decision made by A/E in preparation of the Contract Documents, when such actions are in conflict with statutes under which A/E is licensed for the protection of the public health and safety.

3.2 Role of Architect/Engineer. Unless specified otherwise in the Contract between Owner and

Contractor, A/E shall provide general administration services for Owner during the construction phase of the Project. Written correspondence, requests for information, and Shop

Drawings/submittals shall be directed to A/E for action. A/E has the authority to act on behalf of

Owner to the extent provided in the Contract Documents, unless otherwise modified by written instrument, which will be furnished to Contractor by ODR, upon request.

3.2.1 Site Visits.

3.2.1.1 A/E will make visits to the Site at intervals as provided in the A/E’s Contract (or the Design/Build Contract, if applicable) with Owner, to observe the progress and the quality of the various aspects of Contractor’s executed Work and report findings to Owner.

3.2.1.2 A/E has the authority to interpret Contract Documents and inspect the Work for compliance and conformance with the Contract. Except as referenced in Section

3.1.5.2, Owner retains the sole authority to accept or reject Work and issue direction for correction, removal, or replacement of Work.

3.2.2 Clarifications and Interpretations. It may be determined that clarifications or interpretations of the Contract Documents are necessary. Upon direction by ODR, such clarifications or interpretations will be provided by A/E consistent with the intent of the

Contract Documents. A/E will issue these clarifications with reasonable promptness to

Contractor as A/E’s supplemental instruction (“ASI”) or similar instrument. If Contractor believes that such clarification or interpretation justifies an adjustment in the Contract Sum or the Contract Time, Contractor shall so notify Owner in accordance with the provisions of Article 11.

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

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

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

3.2.3.3 Contractor’s failure to perform or furnish the Work in accordance with the

Contract Documents; or

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

3.3 Contractor’s General Responsibilities. Contractor is solely responsible for implementing the Work in full compliance with all Applicable Law and the Contract Documents and shall supervise and direct the Work using the best skill and attention to assure that each element of the Work conforms to the Contract requirements. Contractor is solely responsible for all construction means, methods, techniques, safety, sequences, coordination, procedures, and protection of the installed work as part of the contract until substantial completion of the project. Contractor remains responsible for the care and protection of materials and Work in the areas where punch list items are completed until

Final Completion. Without limiting the foregoing, Contractor shall, at all times (a) prior to

Substantial Completion and turnover of the Work to Owner and (b) after Substantial Completion in those areas where punchlist Work is being performed prior to Final Completion, use reasonable measures and to cause its Subcontractors to use reasonable measures to protect the Work (including

Work in progress and installed Work) from damage caused by weather and casualties.

Contractor shall visit the Site before commencing the Work and become familiar with local conditions such as the location, accessibility, and general character of the Site and/or building.

3.3.1 Project Administration. Contractor shall provide Project administration for all

Subcontractors, vendors, suppliers, and others involved in implementing the Work and shall coordinate administration efforts with those of A/E and ODR in accordance with these general conditions, Division 1 of the Specifications, and other provisions of the Contract, and as outlined in the pre-construction conference. Contractor’s Project Administration includes periodic daily reporting on weather, work progress, labor, materials, equipment, obstructions to prosecution of the work, accidents, and injuries in accordance with the

Contract and transmitted no less frequently than on a weekly basis.

3.3.2 Contractor’s Management Personnel. Contractor shall employ a competent person or persons who will be present at the Project Site during the progress of the Work to supervise or oversee the work. The competent persons are subject to the approval of ODR.

Contractor shall not change approved staff during the course of the project without the written approval of ODR unless the staff member leaves the employment of Contractor.

Contractor shall provide additional quality control, safety and other staff as stated in the

Contract Documents.

3.3.3 Labor. Contractor shall provide competent, suitably qualified personnel to survey, lay-out, and construct the Work as required by the Contract Documents, and maintain good discipline and order at the Site at all times.

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

3.3.5 Contractor General Responsibility. For Owner furnished equipment or material that will be in the care, custody, and control of Contractor, Contractor is responsible for damage or loss. Upon Contractor’s written request, Owner shall furnish to Contractor the respective values of such materials or equipment and shall make an equitable adjustment to the contract amount for any increase in cost of Builder’s Risk insurance furnished by

Contractor covering such equipment or material.

3.3.6 Non-Compliant Work. Should A/E and/or ODR identify Work as non-compliant with the

Contract Documents, A/E and/or ODR shall communicate the finding to Contractor, and

Contractor shall correct such Work at no additional cost to the Owner. The approval of

Work or the failure to find non-compliant Work by either A/E or ODR does not relieve

Contractor from the obligation to comply with all requirements of the Contract Documents.

3.3.7 Subcontractors. Contractor shall not employ any Subcontractor, supplier or other person or organization, whether initially or as a substitute, against whom Owner shall have reasonable objection. Owner will communicate such objections in writing within ten (10) days of receipt of Contractor’s intent to use such Subcontractor, supplier, or other person or organization. Contractor is not required to employ any Subcontractor, supplier or other person or organization to furnish any of the work to whom Contractor has reasonable objection. Contractor shall not substitute Subcontractors without the acceptance of Owner.

3.3.7.1 All Subcontracts and supply contracts shall be consistent with and bind the

Subcontractors and suppliers to the terms and conditions of the Contract

Documents including provisions of the Contract between Contractor and Owner.

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

Require all Subcontractors, suppliers and such other persons and organizations performing or furnishing any of the Work to communicate with Owner only through Contractor. Contractor shall furnish to Owner a copy, at Owner’s request, of each first-tier subcontract promptly after its execution. Contractor agrees that

Owner has no obligation to review or approve the content of such contracts and that providing Owner such copies in no way relieves Contractor of any of the terms and conditions of the Contract, including, without limitation, any provisions of the

Contract which require the Subcontractor to be bound to Contractor in the same manner in which Contractor is bound to Owner.

3.3.8 Continuing the Work. Contractor shall carry on the Work and adhere to the progress schedule during all disputes, disagreements, or alternative resolution processes with

Owner. Contractor shall not delay or postpone any Work because of pending unresolved disputes, disagreements, or alternative resolution processes, except as Owner and

Contractor may agree in writing.

3.3.9 Cleaning. Contractor shall at all times, keep the Site and the Work clean and free from accumulation of waste materials or rubbish caused by the construction activities under the

Contract. Contractor shall ensure that the entire Project is thoroughly cleaned prior to requesting Substantial Completion inspection and, again, upon completion of the Project prior to the final inspection.

3.3.10 Acts and Omissions of Contractor, its Subcontractors and Employees. Contractor shall be responsible for acts and omissions of its employees and all its Subcontractors, their agents, and employees. Owner may, in writing, require Contractor to remove from the Project any of Contractor’s or its Subcontractor’s employees whom ODR finds to be careless, incompetent, unsafe, uncooperative, disruptive, or otherwise objectionable.

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

3.3.11.1 All Contractor operations, including storage of materials and employee parking upon the Site of Work, shall be confined to areas designated by Owner.

3.3.11.2 Contractor may erect, at its own expense, temporary buildings that will remain its property. Contractor shall remove such buildings and associated utility service lines upon completion of the Work, unless Contractor requests and

Owner provides written consent that it may abandon such buildings and utilities in place.

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

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

3.3.12 Separate Contracts. Owner reserves the right to award other contracts in connection with the Project under the same or substantially similar contract terms, including those portions related to insurance and waiver of subrogation. Owner reserves the right to perform operations related to the Project with Owner’s own forces.

3.3.13 Under a system of separate contracts, the conditions described herein continue to apply except as may be amended by change order.

3.3.14 Contractor shall cooperate with other contractors or forces employed on the Project by

Owner, including providing access to Site, integration of activities within Contractor’s

Work Progress Schedule and Project information as requested.

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

Work, or defective construction by a separate contractor.

3.4 Indemnification of Owner.

3.4.1 To the fullest extent permitted by Applicable Law and without limiting any indemnity obligation set out in the Agreement, the Contractor covenants and agrees to FULLY

INDEMNIFY and HOLD HARMLESS, Owner and the elected and appointed officials, employees, officers, directors, volunteers, and representatives of Owner, individually or collectively, from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal or bodily injury, death or property damage, made upon Owner and such other indemnified parties identified herein directly or indirectly arising out of, resulting from or related to Contractor’s activities under this Contract, including any acts or omissions of Contractor, or any agent, officer, director, representative, employee, consultant or Subcontractor of Contractor, and their respective officers, agents, employees, directors and representatives while in the exercise of performance of the rights or duties under this Contract. The indemnity provided for in this Section 3.4.1 does not apply to any liability resulting from the negligence of the Owner or such other indemnified parties identified herein or their officers or employees, separate contractors or assigned contractors, design professionals, or consultants, to the extent such negligence causes personal injury, death or property damage. IN THE EVENT

CONTRACTOR AND OWNER ARE FOUND JOINTLY LIABLE BY A COURT

OF COMPETENT JURISDICTION, LIABILITY WILL BE APPORTIONED

COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF

TEXAS, WITHOUT WAIVING ANY GOVERNMENTAL IMMUNITY

AVAILABLE TO THE STATE (INCLUDING OWNER) UNDER TEXAS LAW

AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS

LAW.

3.4.2 Contractor shall protect and indemnify the Owner from and against all claims, damages, judgments, and losses arising from infringement or alleged infringement of any United States patent, or copyright that arise out of any of the work performed by the Contractor or the use by Contractor, or by Owner at the direction of Contractor, of any article or material. Upon becoming aware of a suit or threat of suit for patent or copyright infringement, Owner shall promptly notify Contractor and Contractor shall be given full opportunity to negotiate a settlement. Contractor does not warrant against infringement by reason of Owner's or A/E’s design of articles or their use in combination with other materials or in the operation of any process. In the event of litigation, Owner agrees to cooperate reasonably with Contractor and parties shall be entitled, in connection with any such litigation, to be represented by counsel at their own expense.

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

3.4.4 Contractor shall promptly advise Owner in writing of any claim or demand against Owner or against Contractor which involves Owner and known to Contractor and related to or arising out of Contractor’s activities under this Contract. In the event that Contractor defends the Owner with regard to any claim subject to this indemnification, any such defense shall be coordinated with the Office of the Attorney General or its designated outside counsel and Contractor may not agree to any settlement without first obtaining the concurrence from the Office of the Attorney General.

3.4.5 These indemnity provisions shall survive the termination of this Agreement regardless of the reason for termination.

Article 4. Historically Underutilized Business (HUB) Subcontracting Plan

4.1 General Description. The purpose of the Historically Underutilized Business (HUB) program is to promote equal business opportunities for economically disadvantaged persons (as defined by Tex.

Gov’t Code, Ch. 2161) to contract with the State of Texas in accordance with the goals specified in the State of Texas Disparity Study. The HUB program annual procurement utilization goals are defined in 34 T.A.C. § 20.284.

4.1.1 State agencies are required by statute to make a good faith effort to assist HUBs in participating in contract awards issued by the State. 34 T.A.C. § 20.281-298 outlines the

State’s policy to encourage the utilization of HUBs in State contracting opportunities through race, ethnic and gender-neutral means.

4.1.2 A Contractor who contracts with the State in an amount of $100,000 or greater is required to make a good faith effort to award subcontracts to HUBs in accordance with 34 T.A.C. §

20.285 by submitting a HUB subcontracting plan within twenty-four (24) hours after the bid or response is due and complying with the HUB subcontracting plan after it is accepted by Owner and during the term of the Contract.

4.2 Compliance with Approved HUB Subcontracting Plan. Contractor, having been awarded this

Contract in part by complying with the HUB program statute and rules, hereby covenants to continue to comply with the HUB program as follows:

4.2.1 Prior to adding or substituting a Subcontractor, promptly notify Owner in the event a change is required for any reason to the accepted HUB subcontracting plan.

4.2.2 Conduct the good-faith effort activities required and provide Owner with necessary documentation to justify approval of a change to the approved HUB subcontracting plan.

4.2.3 Cooperate in the execution of a Change Order or such other approval of the change in the

HUB subcontracting plans as Contractor and Owner may agree to.

4.2.4 Maintain and make available to Owner upon request business records documenting compliance with the accepted HUB subcontracting plan.

4.2.5 Upon receipt of payment for performance of Work, submit to Owner a compliance report, in the format required by Owner that demonstrates Contractor’s performance of the HUB subcontracting plan.

4.2.5.1 Progress Assessment Report (PAR): monthly compliance reports to Owner

(contracting agency), verifying their compliance with the HUB subcontracting plan, including the use/expenditures they have made to Subcontractors. (The PAR is available at https://comptroller.texas.gov/purchasing/vendor/hub/).

4.2.6 Promptly and accurately explain and provide supplemental information to Owner to assist in Owner’s investigation of Contractor’s good-faith effort to fulfill the HUB subcontracting plan and the requirements under 34 T.A.C. § 20.285.

4.3 Failure to Demonstrate Good-Faith Effort. Upon a determination by Owner that Contractor has failed to demonstrate a good-faith effort to fulfill the HUB subcontracting plan, or any Contract covenant detailed above, Owner may, in addition to all other remedies available to it, report the failure to perform to the Comptroller of Public Accounts, Texas Procurement and Support Services

Division, Historically Underutilized Business Program and may bar Contractor from future contracting opportunities with Owner.

Article 5. Bonds and Insurance

5.1 Construction Bonds. Contractor is required to tender to Owner, prior to commencing the Work, performance and payment bonds, as required by Tex. Gov’t Code, Chapter 2253. On Construction

Manager-at-Risk and Design-Build Projects the Owner shall require a security bond, as described in Subsection 5.1.2 below.

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

5.1.1.1 A Performance bond is required if the Contract Sum is in excess of $100,000.