HHS0016943v2_Attach B_Texas UGCs (Version 2.2).pdf

Attachment B

Texas Uniform General Conditions for Construction Contracts with

HHSC Supplementary General Conditions

Health and Human Services Commission Published and Effective: November 15, 2018 Responsible Office: Chief Counsel

Texas Uniform General Conditions for Construction Contracts with HHSC Supplementary General Conditions

Version 2.2

(2015 Texas Facilities Commission Uniform General Conditions with 2015 and 2018 Supplements) (HHSC Supplementary General Conditions are denoted by bold blue italics)

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. Miscellaneous

Article 1. Definitions

Unless the context clearly requires another meaning, the following terms have the meaning assigned herein.

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

1.2 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.

1.3 Amendment means any change to the Contract agreed to by the Parties other than those made by a Change Order.

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., Ch. 1051, as a landscape architect pursuant to Tex. Occ. Code Ann., Ch. 1052, a person licensed as a professional engineer pursuant Tex. Occ.

Code Ann., Ch. 1001, and/or a firm employed by Owner or Design-Build Contractor 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 Architect/Engineer’s Supplemental Instructions (ASI) means the written response by the A/E to the Contractor’s RFI, or other written or telephonic communication from the Contractor to the A/E, clarifying an issue (or issues) with regard to the Work deemed unclear by the Contractor.

1.7 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.

1.8 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 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.

1.9 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 closeout documents required by the Contract Documents.

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

1.11 Change Order means a written modification of the Contract between Owner and

Contractor, signed by Owner, Contractor, and A/E.

1.11.1 An Owner-initiated Change Order (CO) consists of four parts, which are identified in Subsection 11.7.2.

1.11.2 The Contractor’s receipt of the fully executed Change Order constitutes the authorization to proceed with the changed Work described in the CO.

1.12 Change Order Proposal Evaluation (CPE) includes the adjustment necessary to the

Contract Sum and Time, if any.

1.13 Change Order Justification (COJ) identifies the reason and justification for the change in the Work, and indicates the review and approval by the Architect/Engineer of the adjustments necessary to the Contract Sum and Time described in the CPE.

1.14 Change Authorization (CA) indicates Owner’s agreement to the adjusted cost and time for the change in the work.

1.15 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.

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

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

1.18 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, Supplementary General, and Special Conditions; and all pre-bid and/or pre-proposal addenda.

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

1.20 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.

1.21 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.

1.22 Construction Documents mean the Drawings, Specifications, and other documents issued to build the Project. Construction Documents become part of the Contract Documents when listed in the Contract or any Change Order.

1.23 Construction Manager-at-Risk, in accordance with Tex. Gov’t Code, Ch. 2166, 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

1.24 Date of Commencement means the date designated in the Notice to Proceed for

Contractor to commence the Work.

1.25 Day means a calendar day unless otherwise specifically stipulated.

1.26 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. Gov’t Code § 2166.2531.2

1.27 Drawings mean that product of A/E which graphically depicts the Work.

1.28 Final Completion means the date determination certified by A/E and Owner that the

Work is fully and satisfactorily complete in accordance with the Contract.

1.29 Final Payment means the last and final monetary compensation made to Contractor

1 Tex. Gov’t Code § 2166.2532 has been repealed (Repealed by Acts 2011, 82nd Leg., ch. 1129 (H.B. 628) § 5.01(2), eff. Sept. 1, 2011) and replaced by Tex. Gov’t Code Chapter 2269, Subchapter F (Added by Acts 2011, 82nd Leg., R.S., Ch. 1129 (H.B. 628), Sec. 2.08, eff. September 1, 2011. Redesignated from Government Code, Chapter 2267 by Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 22.001(23), eff. September 1, 2013.).

2 Tex. Gov’t Code § 2166.2531 has been repealed (Repealed by Acts 2011, 82nd Leg., R.S., Ch. 1129 (H.B. 628), Sec.

5.01(2), eff. September 1, 2011) and replaced by Tex. Gov’t Code Chapter 2269, Subchapter G (Added by Acts 2011, 82nd Leg., R.S., Ch. 1129 (H.B. 628), Sec. 2.08, eff. September 1, 2011. Redesignated from Government Code, Chapter 2267 by Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 22.001(23), eff. September 1, 2013.).

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.

1.30 Historically Underutilized Business (HUB) pursuant to Tex. Gov’t Code, Ch. 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.

1.31 Interim Change Authorization (ICA) means an Owner-generated document which authorizes the Contractor to proceed with changed work before submitting a CPE, when work must proceed in order to prevent damage to Work in place, to prevent significant delay in the Project Schedule or to maintain safety.

1.32 Notice to Proceed means a written document informing Contractor of the dates begin

Work and the dates anticipated for Substantial Completion.

1.33 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.

1.34 Owner means the State of Texas, and any agency of the State of Texas, acting through the responsible entity of the State of Texas identified in the Contract as Owner.

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

1.36 Project means all activities necessary for realization of the Work. This includes design, contract award(s), execution of the Work itself, and fulfillment of all Contract and warranty obligations.

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

1.38 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.

1.39 Punchlist means a list of items of Work to be completed or corrected by Contractor after Substantial Completion. Punchlists indicate 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.

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

1.41 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.

1.42 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.

1.43 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.

1.44 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.

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

1.46 Special Conditions mean the documents containing terms and conditions which may be unique to the Project. Special Conditions are a part of the Contract Documents and have precedence over the Uniform General Conditions and Supplementary General Conditions.

1.47 Specifications mean the written product of A/E 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.

1.48 Subcontractor means a business entity that enters into an agreement with Contractor to perform part of the Work or to provide services, materials, or equipment for use in the Work.

1.49 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.

1.50 Substantial Completion means 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.

1.51 Supplementary General Conditions mean procedures and requirements that modify the Uniform General Conditions. Supplementary General Conditions, when used, have precedence over the Uniform General Conditions.

1.52 Survey means a land survey document produced by a licensed surveyor. The survey contains information about a particular parcel of property including but not limited to boundaries, natural land features, constructed improvements and legal descriptions.

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

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

1.55 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.

1.56 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.

(Remainder of Page Intentionally Left Blank)

Article 2. Wage Rates and Other Laws Governing Construction

2.1 Environmental Regulations. Contractor shall conduct activities in compliance with applicable laws and regulations and other requirements of the Contract relating to the environment and its protection at all times. Unless otherwise specifically determined, 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. When requested by Owner, Contractor shall furnish evidence of compliance with the Texas Prevailing Wage Law and the addresses of all workers.

2.2.1.1 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 their agents at all reasonable hours for the duration of the contract.

2.2.1.2 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.

2.2.1.3 The prevailing wage schedule is determined by Owner in compliance with Tex. Gov’t Code, Ch. 2258. Should Contractor at any time become aware that a particular skill or trade not reflected on

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.

2.2.1.4 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.

2.2.1.5 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, Ch. 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 in accordance with Tex. Gov’t Code § 2258.023, such amounts being subtracted from successive progress payments pending a final decision on the violation.

2.2.3.2 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 Paragraph 2.2.3.1, the Contractor and/or Subcontractor, as applicable, shall deliver notice thereof to Owner.

2.2.3.4.1 If the Contractor and the claimant worker reach an

agreement concerning the claim, the Contractor shall promptly provide the Owner with a copy of the written agreement, countersigned by the claimant.

2.2.3.4.2 Arbitration Required. If the violation is not resolved within fourteen (14) days following initial determination by the Owner, the Contractor and the claimant worker must participate in binding arbitration in accordance with the “Texas General Arbitration Act,” Texas Civil Practice & Remedies Code Chapter 171. If the Contractor and the claimant worker are unable to reach an agreement for selection of an arbitrator within ten (10) business days, either party may petition the district court to appoint an arbitrator whose decision will be binding on all parties.

2.2.3.4.3 Arbitration Award. If an arbitrator assesses an award against the Contractor, the Contractor shall promptly furnish a copy of said award to the Owner. The Owner may use any amounts retained under Section 2.2.3.1 to pay the worker. If the retained funds are insufficient to pay the arbitration award, the worker has a right of action against the Contractor and/or the surety to receive the amount owed, plus attorneys’ fees and court costs. The Owner has no duty to release any funds to either the claimant or the Contractor until the Owner has received the notices of agreement or the arbitration award.

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, or as may otherwise be designated in the Supplementary General Conditions.

2.3.1 Notwithstanding Section 2.3 above, venue for any suit asserting a payment or performance bond claim will be in a court of competent jurisdiction in the county in which all or part of the Project is located.

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, Ch. 151.

Upon request from Contractor, Owner shall furnish evidence of tax exempt status.

Contractor may claim exemption from payment of certain applicable State taxes by complying with such procedures as prescribed by the State Comptroller of Public Accounts. Owner acknowledges not all items qualify for exemption. Owner is not obligated to reimburse Contractor for taxes paid on items that qualify for tax exemption.

2.7 Buy America Requirements for Iron and Steel Used in Construction. In accordance with Texas Government Code 2252, Section 2252.202, all iron or steel products (i.e., rolled structural shapes including wide flange beams and columns, angles, bars, plates, sheets, hollow structural sections, pipe, etc.) shall be produced, manufactured and fabricated in the United States.3

2.7.1 Notwithstanding anything to the contrary herein, Contractor must satisfy the requirements of Section 2.7 above, unless one of the exemptions in Texas Government Code Section 2252.203 is applicable.

3 Added by TFC 2018 Supplementary General Conditions to the state of Texas 2015 edition of the Uniform General Conditions for Contracts.

Article 3. General Responsibilities of Owner and Contractor

3.1 Owner’s General Responsibilities. Owner is the entity identified as such in the Contract 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 Supplementary General Conditions or Special Conditions.

3.1.2.4 The ODR will 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,

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 with Owner, to observe the progress and the quality of the various aspects of Contractor’s executed Work and report findings to

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 Paragraph 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 laws 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.

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 and other provisions of the Contract, and as outlined in the preconstruction 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 Supplementary General Conditions.

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. Owner shall deliver to Contractor a complete list and respective values of such materials or equipment and make an equitable adjustment to the contract amount for any increase in cost of Builder’s Risk insurance.

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 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. Pursuant to Tex. Gov’t Code § 2269.256(b), if the Contractor reviews, evaluates and recommends that the Owner accept a bid or proposal from a Subcontractor but the Owner requires another bid or proposal to be accepted, Owner shall compensate the Contractor by a change in price, time or guaranteed maximum cost for any additional cost or risk the Contractor will incur because of Owner’s requirement to select another bid or proposal rather than the one recommended.

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.

3.3.9.1 The Contractor shall ensure that it and all of its Subcontractors and assigns prevent illegal dumping of litter in accordance with Texas Health and Safety Code Section 365.012.

3.3.10 Acts and Omissions of Contractor, its Subcontractors, and Employees.

Contractor shall be responsible for acts and omissions of his 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 Acts or Omissions. Contractor shall indemnify and hold harmless the State of

Texas and Customers, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or resulting from any acts or omissions of Contractor or its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or performance of the Contract and any Purchase Orders issued under the Contract. THE

DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE

OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE

AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND

CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT

FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE

ATTORNEY GENERAL. CONTRACTOR AND OWNER AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY

SUCH CLAIM.

3.3.12 Violation of Law. To the extent allowed by law, Contractor shall defend, indemnify, and hold harmless the State of Texas, the Owner, and their officers and employees, from and against all claims, actions, suits, demands, proceedings, costs, damages, and liabilities, including attorneys’ fees and court costs arising out of, or connected with, or resulting from any breach or violation of a statute, ordinance, governmental regulation, standard, rule, or breach of contract by Contractor, any agent, employee, subcontractor, or supplier of Contractor, or any third party under the control or supervision of Contractor, in the execution or performance of this Contract. THE

DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE

OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE

AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND

CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT

FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF

THE ATTORNEY GENERAL. CONTRACTOR AND OWNER AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY

SUCH CLAIM.

3.3.13 Infringements.

3.3.13.1 Contractor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR

DESIGNEES from any and all third party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF

CONTRACTOR PURSUANT TO THIS CONTRACT.

CONTRACTOR AND THE CUSTOMER AGREE TO FURNISH

TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH

CLAIM. CONTRACTOR SHALL BE LIABLE TO PAY ALL

COSTS OF DEFENSE INCLUDING ATTORNEYS’ FEES. THE

DEFENSE SHALL BE COORDINATED BY CONTRACTOR

WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN

TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN

ANY LAWSUIT AND CONTRACTOR MAY NOT AGREE TO

ANY SETTLEMENT WITHOUT FIRST OBTAINING THE

CONCURRENCE FROM THE OFFICE OF THE ATTORNEY

GENERAL.

3.3.13.1.1 As used in this subsection, “the State of Texas” is understood to include the Owner and its employees, agents, representatives, contractors, assignees and designees.

3.3.13.2 Contractor shall have no liability under this section if the alleged infringement is caused in whole or in part by: (i) use of the product or service for a purpose or in a manner for which the product or service was not designed, (ii) any modification made to the product without Contractor’s written approval, (iii) any modifications made to the product by Contractor pursuant to Customer’s specific instructions, (iv) any intellectual property right owned by or licensed to Customer, or (v) any use of the product or service by Customer that is not in conformity with the terms of any applicable license agreement.

3.3.13.3 If Contractor becomes aware of an actual or potential claim, or

Customer provides Contractor with notice of an actual or potential claim, Contractor may (or in the case of an injunction against Customer, shall), at Contractor’s sole option and expense; (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer’s use is non-infringing.

3.3.13.4 Taxes/Workers’ Compensation/Unemployment Insurance–Including

Indemnity.

3.3.13.4.1 CONTRACTOR AGREES AND ACKNOWLEDGES

THAT DURING THE EXISTENCE OF THIS

CONTRACT, CONTRACTOR SHALL BE ENTIRELY

RESPONSIBLE FOR THE LIABILITY AND

PAYMENT OF CONTRACTOR’S AND

CONTRACTOR’S EMPLOYEES’ TAXES OF

WHATEVER KIND, ARISING OUT OF THE

PERFORMANCES IN THIS CONTRACT.

CONTRACTOR AGREES TO COMPLY WITH ALL

STATE AND FEDERAL LAWS APPLICABLE TO

ANY SUCH PERSONS, INCLUDING LAWS

REGARDING WAGES, TAXES, INSURANCE, AND

WORKERS' COMPENSATION. THE CUSTOMER

AND/OR THE STATE SHALL NOT BE LIABLE TO

CONTRACTOR, ITS EMPLOYEES, AGENTS, OR

OTHERS FOR THE PAYMENT OF TAXES OR THE

PROVISION OF UNEMPLOYMENT INSURANCE

AND/OR WORKERS’ COMPENSATION OR ANY

BENEFIT AVAILABLE TO A STATE EMPLOYEE OR

EMPLOYEE OF ANOTHER GOVERNMENTAL

ENTITY CUSTOMER.

3.3.13.4.2 CONTRACTOR AGREES TO INDEMNIFY AND

HOLD HARMLESS OWNER, THE STATE OF TEXAS

AND/OR THEIR EMPLOYEES, AGENTS,

REPRESENTATIVES, CONTRACTORS, AND/OR

ASSIGNEES FROM ANY AND ALL LIABILITY,

ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND

ALL RELATED COSTS, ATTORNEYS’ FEES, AND

EXPENSES, RELATING TO TAX LIABILITY,

UNEMPLOYMENT INSURANCE AND/OR

WORKERS’ COMPENSATION IN ITS

PERFORMANCE UNDER THIS CONTRACT.

CONTRACTOR SHALL BE LIABLE TO PAY ALL

COSTS OF DEFENSE INCLUDING ATTORNEYS’

FEES. THE DEFENSE SHALL BE COORDINATED

BY CONTRACTOR WITH THE OFFICE OF THE

ATTORNEY GENERAL WHEN TEXAS STATE

AGENCIES ARE NAMED DEFENDANTS IN ANY

LAWSUIT AND VENDOR MAY NOT AGREE TO

ANY SETTLEMENT WITHOUT FIRST OBTAINING

THE CONCURRENCE FROM THE OFFICE OF THE

ATTORNEY GENERAL. CONTRACTOR AND

OWNER AGREE TO FURNISH TIMELY WRITTEN

NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

3.3.13.5 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.

3.3.13.6 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.

3.3.14 Ancillary Areas. Operate and maintain operations and associated storage areas at the site of the Work in accordance with the following:

3.3.14.1 Confine all Contractor operations, including storage of materials and employee parking upon the Site of Work, to areas designated by

3.3.14.2 Contractor may erect, at its own expense, temporary buildings that will remain its property. 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.

3.3.14.3 Use only established roadways or construct and use such temporary roadways as may be authorized by Owner. Do not allow load limits of vehicles to exceed the limits prescribed by appropriate regulations or law. 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.

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

3.3.14.5 Damages to Owner’s or Third Parties’ Property Caused by Contractor and/or Subcontractors. The Contractor shall, at Contractor’s sole cost and at no expense to the Owner or any third parties, repair and/or replace Owner’s property and adjacent property, buildings and equipment owned by third parties, damaged by the Contractor and/or the Subcontractors. Contractor shall return the damaged property, buildings and equipment to the same or better quality type or condition that existed prior to the damage. This contractual duty to repair damages shall survive any termination of Contractor under this Contract or any subsequent contract and, thereafter, become the obligation of the Surety.

3.3.15 Separate Contracts. Owner reserves the right to award other contracts in connection with other portions of the Project under these same or substantially similar contract conditions, 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.

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

3.3.17 Contractor shall cooperate with other contractors or forces employed on the Project by Owner, including providing access to Site and Project information as requested.

3.3.18 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.

3.3.18.1 If separate contracts are awarded for different portions of the Project, all Parties (the Contractors and Owner) shall cooperate and work together to complete the Project. Each Contractor shall inspect and promptly report in writing to the ODR any visually apparent discrepancies or defects found that may interfere with proper execution or proper results of the contracted work. Failure to inspect and report visually apparent discrepancies or defects shall constitute an acknowledgment by Contractor there are no impediments to proper execution or proper results of the contracted work, except as to defects which may develop after the execution of the Contract.

3.3.18.2 Should any Contractor damage the Work or property of any other

Contractor on the Project, the Contractor responsible for the damage shall, upon written notice from the Owner, endeavor to settle with the other contractor. If the contractors are unable to settle their dispute, the Owner may initiate a Dispute Resolution process and each Contractor shall be financially accountable for any damages or loss based on its proportionate fault determined by the Dispute…