Uniform General and Supplementary Conditions.pdf

SSC UNIFORM GENERAL AND SUPPLEMENTARY CONDITIONS

SECTION 00 72 00

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

SSC UNIFORM GENERAL AND SUPPLEMENTARY CONDITIONS SSC 09/2018

SSC UNIFORM GENERAL AND SUPPLEMENTARY CONDITIONS

These General and Supplementary Conditions shall be used for contracts in support of the agreement between The Texas A&M University System (“TAMUS”) (“Owner”) and Southeast Service Corporations d/b/a SSC Services for Education (“SSC”) (“ODR”).

All users are advised to read and understand this entire document.

Article 1. Definitions

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

1.1 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.

1.2 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.

1.3 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 ODR 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.

1.4 Baseline Schedule means the initial time schedule prepared by Contractor for ODR’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.

1.5 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 Punch List items and pre-final Punch List items, final cleanup and

Contractor’s provision of Record Documents, operations and maintenance manuals, and all other closeout documents required by the Contract Documents.

1.6 Change Order means a written modification of the Contract between ODR and

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

1.7 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.

1.8 Competitive Sealed Proposals, in accordance with Tex. Gov’t Code, Chapter 2166, a delivery procedure for construction projects by which a governmental entity (or its representative) requests proposals, ranks the offerors, negotiates as prescribed, and then contracts with a general contractor for the construction, rehabilitation, alteration, or repair of a facility.

1.9 Contract means the entire agreement between ODR and Contractor, including all of the

Contract Documents.

1.10 Contract Date is the date when the agreement between ODR and Contractor becomes effective.

1.11 Contract Documents mean those documents identified as a component of the agreement (Contract) between ODR and Contractor. These may include, but are not limited to, Drawings; Project Manual/Specifications; SSC Uniform General and Supplementary Conditions, and Special Conditions; and all pre-bid and/or pre-proposal addenda.

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

1.13 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.

1.14 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.

1.15 Construction Documents mean the Drawings, Project Manual/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.

1.16 Construction Manager at Risk. In accordance with Tex. Gov’t Code Chapter 2269, means a sole proprietor, partnership, corporation, or other legal entity that assumes the risk for construction, rehabilitation, alteration, or repair of a facility at the contract price as a general contractor and provides consultation to ODR regarding construction during and after the design of the facility

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

Contractor to commence the Work.

1.18 Day means a calendar day unless otherwise specifically stipulated.

1.19 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 § 2269.301.

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

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

1.22 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.

1.23 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, a Disabled Veteran, 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.

1.24 Manufacturing Process means the application of a process to alter the form or function of materials or elements of a product in a manner that adds value and transforms the materials or elements into a new finished product that is functionally different from a finished product produced merely from assembling the materials or elements into a product.

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

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

1.27 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.

1.27 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.

1.28 Produced in the United States means, with respect to iron and steel products, a product for which all manufacturing processes, from initial melting through application of coatings, occur in the United States, other than metallurgical processes to refine steel additives.

1.29 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.

1.30 Project Manual means a bound document that contains the contract documents, with the exception of the drawings, specifically organized into bid requirements, contract information, addenda, general conditions for construction, and technical specifications.

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

1.32 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.

1.33 Punch List means a list of items of Work to be completed or corrected by Contractor after Substantial Completion. Punch Lists 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.

1.34 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.

1.35 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.

1.36 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.

1.37 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 ODR and A/E.

1.38 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.

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

1.40 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.

1.41 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.

1.42 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.

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

1.44 Substantial Completion means the date determined and certified by Contractor, A/E, and ODR 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.

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

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

1.47 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.

1.48 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.

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, Contractor is responsible for obtaining and maintaining permits related to storm water run-off. Contractor shall conduct operations consistent with storm water 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 indicated by county and “Building Type” at the following link:

https://www.wdol.gov/wdol/scafiles/davisbacon/tx.html. 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 and the addresses of all workers.

2.2.1.1 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 when requested by Owner.

2.2.1.2 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. 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.

2.2.2 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 ODR’s Determination of Good Cause. Upon receipt of information concerning a violation, ODR 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, ODR 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 If the Contractor and claimant worker reach an agreement concerning the claim, the Contractor shall promptly notify the ODR in a written document countersigned by the worker.

2.2.3.3 Arbitration Required. If the violation is not resolved within 14 days following initial determination by the ODR, the Contractor and the claimant worker must participate in binding arbitration in accordance with the Texas General Arbitration Act, Tex. Civ. Prac.

& Rem. Code, Chapter 171. If the Contractor and the claimant worker do not agree on an arbitrator within 10 days, after the date arbitration is required, a district court may be petitioned by any of the parties to the arbitration to appoint an arbitrator whose decision will be binding on all parties. (See Tex. Gov’t Code, § 2258.053)

2.2.3.4 Arbitration Award. If an arbitrator assesses an award against the Contractor, the Contractor shall promptly furnish a copy of said award to the ODR. The ODR may use any amounts retained under Article 2.2.3.1 to pay the worker the amount as designated in the arbitration award. If the retained funds are insufficient to pay the worker in accordance with 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 ODR has no duty to release any funds to either the claimant or the Contractor until it has received the notices of agreement or the arbitration award.

2.2.3.5 No Extension of Time. If ODR’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.

2.3 Venue for Suits. The venue for any suit arising from the Contract will be in a court of competent jurisdiction in the county of the site location.

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 or ODR.

2.4.1 Partial list of licenses required. Listed by Texas Statue:

Boilers--Chapter 755, Health and Safety Code.

Electrical--Title 8, Occupations Code, Chapter 1305, Administered by the Texas Department of Licensing and Regulation.

Elevators, Escalators, and related Equipment--Chapter 754, Health and Safety Codes, Subchapter B. Inspection, Certification, and Registration.

Fire Detection and Alarms--Insurance Code, Article 5.43-2.

Fire Protection--Insurance Code, Article 5.43-1 and 5.43-3.

Plumbing--Plumbing License Law, Occupations Code, Title 8.

Regulation of Environmental and Industrial Trades, Chapter 1301.

Plumbers.

Mechanical--Air Conditioning and Refrigeration Contractor License Law, Occupations Code, Title 8. Regulation of Environmental and Industrial Trades, Chapter 1302, Administered by the Texas Department of Licensing and Regulation.

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 and ODR 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 ODR 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/ODR 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/ODR acknowledges not all items qualify for exemption.

Owner/ODR is not obligated to reimburse Contractor for taxes paid on items that qualify for tax exemption.

2.7 Iron and Steel Products. In accordance with Tex. Gov’t. Code, Chapter 2252, Subchapter

F all iron and steel products produced through a manufacturing process and used in the project shall be produced in the United States.

2.7.1 Exemption. Electrical components, equipment, systems, and appurtenances, including supports, covers, shielding, and other appurtenances related to an electrical system, necessary for operation or concealment are not considered to be iron or steel products and are exempt from this requirement.

2.7.2 Other exemptions, only if agreed to in writing by the Owner are:

2.7.2.1 Iron or steel products produced in the United States are not: (A) produced in sufficient quantities; (B) reasonably available; or (C) of a satisfactory quality; or if

2.7.2.2 Use of iron or steel products produced in the United States will increase the total cost of the project by more than 20 percent.

2.8 Prohibition on contracts with Companies boycotting Israel In accordance with Tex.

Gov’t Code, Chapter 2270 SSC will not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it

(1) does not boycott Israel; and

(2) will not boycott Israel during the term of the contract.

Article 3. General Responsibilities of Owner and Contractor

3.1 ODR’s General Responsibilities. ODR 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.

3.1.3 Owner Supplied Materials and Information.

3.1.3.1 Owner or ODR 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

3.1.3.2 Owner or ODR will provide information, equipment, or services under Owner’s control to Contractor with reasonable promptness. The Owner or ODR makes no representation as to the accuracy or completeness of the site information furnished to the Contractor by the Owner, and is not responsible for any interpretations or conclusions reached by the Contractor with respect to the information.

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 Documents.

3.1.5 Limitation on ODR’s Duties.

3.1.5.1 The ODR 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. T h e ODR is not responsible for any failure of Contractor to comply with laws and regulations applicable to the Work. The ODR 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, the ODR 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 ODR 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. (if applicable) 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. The A/E has no authority to change material specifications, contract cost or contract time unless approved by the ODR.

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

ODR.

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, The ODR 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 ODR 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, codes, regulations 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 and procedures. The Contractor is responsible for having visited the Site and having ascertained all pertinent local conditions such as existing subsurface concealed conditions, location, accessibility and general character of the Site or building, the character and extent of existing work, the character and extent of existing work within adjacent sites, and any other work being performed thereon at the time Contractor’s bid or proposal is submitted.

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 if applicable and ODR in accordance with these SSC Uniform General and Supplementary Conditions, Division 1 Specifications, and other provisions of the Contract, and as outlined in the pre-construction conference.

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 SSC Uniform General and Supplementary 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.

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

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 or ODR shall have reasonable objection. ODR 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 ODR.

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 and ODR only through Contractor. Contractor shall furnish to Owner and ODR a copy, at Owner’s or ODR’s request, of each first-tier subcontract promptly after its execution. Contractor agrees that Owner and ODR have no obligation to review or approve the content of such contracts and that providing Owner and ODR 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 ODR. Contractor shall not delay or postpone any Work because of pending unresolved disputes, disagreements or alternative resolution processes, except as ODR 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 his employees and all its Subcontractors, their agents and employees. Owner or ODR 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 Indemnification of Owner. 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 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 the 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 paragraph does not apply to any liability resulting from the negligence of the Owner, its officers or employees, separate contractors or assigned contractors, in instances where 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 UNDER TEXAS LAW AND WITHOUT

WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW.

3.3.11.1 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.

3.3.11.2 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.

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

3.3.12.1 Confine all Contractor operations, including storage of materials and employee parking upon the Site of Work, to areas designated by Owner or ODR.

3.3.12.2 With prior written approval of the Owner and ODR, 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.

3.3.12.3 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.

3.3.12.4 ODR may restrict Contractor’s entry to the Site to specifically assigned entrances and routes.

3.3.13 Separate Contracts. ODR 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. ODR reserves the right to perform operations related to the Project with ODR’s own forces.

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

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

3.3.16 ODR shall be reimbursed by Contractor for costs incurred by ODR which are payable to a separate contractor because of delays, improperly timed activities, or defective construction by Contractor. ODR 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.

Article 4. Historically Underutilized Business (HUB) Subcontracting Plan

4.1 General Description. The purpose of the HUB Program is to promote full and equal business opportunities for all businesses in State contracting.

In accordance with 34 TAC §20.14(d)(1)(D)(iii), a respondent (prime contractor) may demonstrate good faith effort to utilize Texas certified HUBs for its subcontracting opportunities if the total value of the respondent’s subcontracts with Texas certified HUBs meets or exceeds the statewide HUB goal or the agency specific HUB goal, whichever is higher. When a respondent uses this method to demonstrate good faith effort, the respondent must identify the HUBs with which it will subcontract. If using existing contracts with Texas certified HUBs to satisfy this requirement, only contracts that have been in place for five years or less shall qualify for meeting the HUB goal. The limitation is designed to encourage vendor rotation as recommended by the 2009 Texas Disparity Study.

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.

§20.13(b) 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. § 20.14(a)(2)(A) 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

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 http://www.window.state.tx.us/procurement/prog/hub/hub-forms/progressassessmentrpt.xls).

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.

§20.14(a)(1).

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 ODR, prior to commencing the Work, performance and payment bonds, as required by Tex. Gov’t Code, Chapter2253. 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 the ODR, on the ODR’s form, and in compliance with the relevant provisions of the Texas Insurance Code. 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 the ODR.

Contractor agrees to promptly remove or discharge such lien or claim. If the Contractor shall fail to so remove or discharge the same within ten (10) days after receipt of written notice from ODR, ODR shall have the right to remove or discharge the same by bonding, payment or otherwise. The amount of any payment, costs and/or expenses made or incurred by ODR in connection with the removal or discharge of any such lien or claim may be deducted by ODR from any payment or amounts then due or thereafter to become due to the Contractor. The premium of such bond is to be paid by the Contractor. ODR, at its option, may terminate and cancel this contract without cost to ODR upon Contractor’s failure to deliver such properly executed bonds to ODR and Contractor agrees to indemnify and hold harmless ODR from any and all damages suffered by ODR as a result of Contractor’s failure to provide such a bond.

5.1.1.1 Performance Bond. A Performance Bond is required if the Contract

Sum is in excess of $100,000. The Performance Bond is solely for the protection of the Owner and ODR. The Performance Bond is to be for the Contract Sum to guarantee the faithful performance of the Work in accordance with the Contract Documents. The form of the bond shall be approved by the Office of the Attorney General of Texas. The Performance Bond shall be effective through Contractor’s warranty period.

5.1.1.2 Payment Bond. A Payment bond is required if the Contract price is in excess of $25,000. The payment bond is to be for the Contract Sum and is payable to the ODR solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the Contractor or its subcontractor. The form of the bond shall be approved by the Office of the Attorney General of Texas.

5.1.2 Security Bond. The security bond provides protection to ODR if Contractor presents an acceptable guaranteed maximum price (“GMP”) to ODR and 1) fails to execute the GMP; or 2) fails to deliver the required payment and performance bonds within the time period stated below.

5.1.3 When Bonds Are Due

5.1.3.1 Security bonds are due within ten (10) days of signing a Construction Manager-at-Risk or Design-Build Contract.

5.1.3.2 Payment and performance bonds are due within ten (10) days of

Contractor’s receipt of a fully executed GMP on a Construction Manager-at-Risk project or the Contract Sum for a Design-Build project, or within ten (10) days of Contractor’s receipt of a fully executed Contract on competitively bid or competitive sealed proposal projects.

5.1.4 Power of Attorney. Each bond shall be accompanied by a valid power- of-attorney issued by the surety company, attached to the bond, and signed and sealed with the corporate embossed seal, authorizing the attorney-in-fact who signs the bond to commit the surety to the terms of the bond, and stating any limit in the amount for which the attorney can issue a single bond.

5.1.5 Bond Indemnification. The process of requiring and accepting bonds and making claims there under shall be conducted in compliance with Tex. Gov‟t Code, Chapter 2253. IF FOR ANY REASON A STATUTORY PAYMENT

OR PERFORMANCE BOND IS NOT HONORED BY THE SURETY,

CONTRACTOR SHALL FULLY INDEMNIFY AND HOLD THE ODR AND

OWNER HARMLESS OF AND FROM ANY COSTS, LOSSES,

OBLIGATIONS OR LIABILITIES IT INCURS AS A RESULT.

5.1.6 Furnishing Bond Information. ODR shall furnish certified copies of the

Payment Bond and the related Contract to any qualified person seeking copies who complies with Tex. Gov’t Code § 2253.026.

5.1.7 Claims on Payment Bonds. Claims on payment bonds must be sent directly to

Contractor and his surety in accordance with Tex. Gov’t Code § 2253.041.

All payment bond claimants are cautioned that no lien exists on the funds unpaid to Contractor on such Contract, and that reliance on notices sent to ODR may result in loss of their rights against Contractor and/or his surety. The ODR is not responsible in any manner to a claimant for collection of unpaid bills, and accepts no such responsibility because of any representation by any agent or employee.

5.1.8 Payment Claims when Payment Bond not Required. The rights of Subcontractors regarding payment are governed by Tex. Prop. Code §§53.2 31 – 53.239 when the value of the Contract between ODR and Contractor is less than $25,000.00.

These provisions set out the requirements for filing a valid lien on funds unpaid to Contractor as of the time of filing the claim, actions necessary to release the lien and satisfaction of such claim.

5.1.9 Sureties. Sureties shall be listed on the US Department of the Treasury’s

Listing of Approved Sureties maintained by the Bureau of Financial Management Service (FMS), www.fms.treas.gov/c570, stating companies holding Certificates of Authority as acceptable sureties on Federal Bonds and acceptable reinsuring companies (FMS Circular 570) and have a rating of A-…